• by Wendy Davis , February 9, 2024

Forty-five House Republicans are urging the Supreme Court to uphold an injunction that could prevent White House officials from discussing controversial matters with personnel at social media platforms.

The injunction, issued in September by the 5th Circuit Court of Appeals, prohibits some government officials from attempting to “coerce or significantly encourage” platforms' content moderation decisions.

In a friend-of-the-court brief filed Friday, Rep. Jim Jordan (R-Ohio) and other lawmakers claim the injunction is justified, arguing that the Biden administration “repeatedly used government coercion to stifle public debate.”

“The Biden Administration used its power to commandeer the apparatuses of social media companies to affect their COVID-related content policies,” Jordan and the others argue. “And out of self-interest, the companies complied and censored content beyond what they otherwise would have. This government coercion violates the First Amendment.”

The new papers come in a battle dating to 2022, when attorneys general in Louisiana and Missouri (and several individuals) alleged in a lawsuit that their social media posts relating to COVID-19 policies, vaccines and other current events were suppressed due to government pressure. The attorneys general and individuals argued federal officials violated the First Amendment by 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 order prohibiting 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 upheld some of its key terms. As revised, the injunction prohibits some 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 editorial decisions by platforms.

The administration then appealed to the Supreme Court, which temporarily halted the injunction.

The White House disputes that it coerced platforms into taking down posts, writing in its appeal that social media companies often allowed flagged posts to remain up.

“Despite the platforms’ routine refusals to act in response to the government’s outreach, neither respondents nor the Fifth Circuit have identified even a single instance in which the government imposed any adverse consequences in retaliation,” Solicitor General Elizabeth Prelogar argued in papers filed with the Supreme Court late last year.

She added that the injunction could limit officials from communicating with social media platforms about matters of public concern, including information about public health.

Missouri and Louisiana countered in a brief filed earlier this month that the injunction doesn't prevent federal officials from advocating for “censorship in the abstract,” or from “sharing their opinion on matters of public health.”

Instead, according to Missouri and Louisiana, the injunction merely prohibits federal officials “from pressuring or jointly participating with platforms to censor other people’s opinions.”

The court is expected to hear oral arguments in the matter later this year.