The Biden Administration on Thursday filed an emergency petition with the Supreme Court regarding a ruling by the Fifth Circuit Court of Appeals regarding government officials contacting social media platforms.
If you’re a Republican attorney general these days, you’re either litigating the results of the 2020 election, or you’re litigating the response to the pandemic. And a case brought by the attorneys general of Missouri and Louisiana, along with some individuals who claim that their speech has been censored on Twitter or another platform in recent years, melts a bit of both.
A three-judge panel of the Fifth Circuit upheld a ruling by a Trump-appointed district judge indicting the Biden Administration for the “most massive attack on free speech in the history of the United States.” So a lower court judge, Judge Terry A. Doughty of the Western District of Louisiana, issued a broad, 10-part order barring federal officials from all types of interactions with social media companies. But the Fifth Circuit issued a narrower ruling, tossing out nine of the ten provisions.
Still, the appeals court’s unsigned ruling said administration officials “shall take no action, formally or informally, directly or indirectly, to compel or significantly encourage social media companies to remove, delete, suppress or to reduce, including by changing their algorithms, posted social media content with protected free speech.”
It should be noted that all three judges on the panel are Republican appointees, two by George W. Bush and one by Trump.
The suit argues that while private social media companies can make their own decisions about content moderation, direct intervention by federal officials on things like election denials and COVID misinformation amounted to illegal censorship.
As the New York Times reports, in her application to the Supreme Court, Attorney General Elizabeth B. Prelogar insisted that any White House should have the power to exercise influence of this kind if it is in the public good , and it is up to the company whether to comply.
“A central dimension of presidential power is the use of the office’s bully pulpit to try to persuade Americans — and American businesses — to act in ways the president believes would advance the public interest,” Prelogar wrote .
All of this hearkens back to the outcry on right-wing media about shadow bans and violations of free speech, especially around the 2020 election, Hunter Biden’s laptop, and ivermectin etc. And almost as soon as he took over Twitter last fall, Elon Musk began releasing old emails to friendly journalists that he cast as The Twitter Files, hoping to draw more attention to the so-called free speech incursions. in late 2020 and how various Twitter staff discussed them.
This lawsuit does not address the actions of Twitter employees, but it does attack officials for their efforts to encourage removal of content.
Justice Samuel Alito, within hours of the filing, granted a stay on the Fifth Circuit’s order — in his role as overseer of the Fifth Circuit. The prosecutors from Missouri and Louisiana now have until Wednesday to submit their response.
As the Times notes, this is one of at least three major social media cases the high court will handle this term. At the end of October, the justices will hear arguments in a case they accepted in April, in which government officials can block citizens from their social media accounts. The court is also expected to take up the case of two laws in Florida and Texas that directly challenge the powers of social media companies.
It remains to be seen whether the Elon Musk and X Corp. have brought against California’s content moderation law will soon go to the Supreme Court.
Photo: Jessie Collins
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