• by Wendy Davis  @wendyndavis, December 27, 2023

Citing national security concerns, the head of the Senate Intelligence Committee is urging the Supreme Court to strike down an injunction that could prevent government officials from discussing controversial subjects -- including issues surrounding elections -- with social media platforms.

“Any injunction here would prevent or limit the government’s ability to communicate with social media companies and would leave the United States vulnerable to attack,” Senator Mark Warner (D-Virginia) writes in a friend-of-the-court brief filed Tuesday with the Supreme Court.

Warner adds that the injunction could prevent U.S. officials from combatting efforts by other countries to tamper with elections, as famously occurred in 2016, when Russia used social media to spread fake information, suppress voting, and sow discord over social issues.

“Foreign malign influence campaigns have grown in number, scope, and sophistication since 2016, and any progress gained through improved threat sharing processes may be entirely lost if the injunction is not lifted,” Warner argues.

He adds that even though the injunction has been temporarily halted, its effect “is still being felt.”

“Real-time private engagement between frontline government officials and social media companies is now effectively impossible, as any communication by the former must be laboriously scrutinized,” he writes.

His filing comes in a battle dating to last year, when attorneys general in Louisiana and Missouri, and several individuals, claimed in a lawsuit that the federal government wrongly pressured social media platforms to remove posts relating to topics including COVID-19, vaccines, and the results of the 2020 elections. The plaintiffs argued that federal officials violated the First Amendment by wrongly pressuring tech platforms to “censor disfavored speakers and viewpoints.”

U.S. District Court Judge Terry Doughty in Monroe, Louisiana, sided with the plaintiffs and on July 4 issued a broad injunction prohibiting a numerous federal agencies and officials from attempting to persuade social media platforms to take down posts that are protected by the First Amendment.

The administration appealed Doughty's order to the 5th Circuit, which narrowed the injunction, but still prohibits officials in the White House, Surgeon General's office, Federal Bureau of Investigation and Centers for Disease Control from attempting to “coerce or significantly encourage a platform’s content-moderation decisions.

The Supreme Court temporarily halted the injunction in September, but hasn't yet considered whether to permanently set it aside.

The White House recently argued to the Supreme Court that the injunction, if allowed to take effect, would “impose grave harms on the government and the public because it could chill vital governmental communications.”

Attorneys general from 22 states and the District of Columbia are also asking the Supreme Court to permanently lift the injunction. They argue in a separate friend-of-the-court brief that government officials don't violate the First Amendment merely by expressing opinions about content moderation decisions.

“Maintaining open lines of communication between the government and social-media companies on topics such as extremist violence, child safety, and consumer protection is mutually beneficial, furthers the public interest, and fully comports with the First Amendment,” they argue.

“Communication between government and social-media companies contributes to important public discourse, can be persuasive without being coercive, and is frequently mutually beneficial,” they add.