• by Wendy Davis  @wendyndavis, September 14, 2023

The Supreme Court on Thursday temporarily blocked an injunction that would have restricted some federal officials' ability to communicate with social media platforms regarding their editorial decisions.

The emergency stay, issued by Justice Samuel Alito, expires September 22, but could be extended after that date.

The move came soon after the Biden administration petitioned the Supreme Court to lift a 5th Circuit Court of Appeals order prohibiting officials from 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 Department of Justice argued in papers filed Thursday that the injunction wrongly limits the government's ability to influence companies on matters of public importance.

“A central dimension of presidential power is the use of the Office’s bully pulpit to seek to persuade Americans -- and American companies -- to act in ways that the President believes would advance the public interest,” the Justice Department writes in a petition filed with the Supreme Court Thursday.

The move comes in a dispute dating to last year, when attorneys general in Louisiana and Missouri, and several individuals claimed their social media posts relating to COVID-19 policies and vaccines were suppressed due to pressure by the government.

The attorneys general and other plaintiffs alleged that federal officials from a variety of agencies violated the First Amendment by pressuring tech platforms "to censor disfavored speakers and viewpoints by using threats of adverse government action."

U.S. District Court Judge Terry Doughty in Monroe, Louisiana, sided with the plaintiffs. He issued an injunction prohibiting a broad range of federal agencies and officials from attempting to persuade social-media platforms to remove posts that are protected by the First Amendment.

That order included a provision that prohibited officials from “taking any action such as urging, encouraging, pressuring, or inducing in any manner social-media companies to remove, delete, suppress, or reduce” lawful content.

The administration appealed the order to the 5th Circuit, which narrowed the injunction late last week. The new order prohibits some government officials from attempting to “coerce” or “significantly” encourage platforms' decisions about content moderation, but doesn't include language that would restrict the government from "urging, encouraging, pressuring, or inducing," decisions.

The appellate judges said in their 74-page ruling that federal officials had “coerced the platforms into direct action via urgent, uncompromising demands to moderate content.”

The Biden administration disputes that conclusion.

"The record shows that platforms routinely declined to remove content flagged by federal officials, yet neither respondents nor the Fifth Circuit suggested that any federal official imposed any sanction in retaliation for platforms’ refusal to act as the government requested," the Justice Department wrote in its petition to the Supreme Court.

The administration also says the new injunction wrongly “forces thousands of government officials and employees to choose between curtailing their interactions with (and public statements about) social-media platforms or risking contempt."

The government writes: "One of the central duties and prerogatives of the President and the senior officials who serve as his proxies is to speak to the public on matters of public concern, and they must have the latitude to do so forcefully at times. But the injunction subjects many such communications to a risk of contempt."