Supreme Court will hear Biden social media case this term

The Supreme Court said Friday it will consider a social media censorship case brought against Biden administration officials in its next term, setting up a legal battle with resounding implications for online speech.  

The high court also issued a stay in an injunction ordered by the 5th U.S. Circuit Court of Appeals, pausing its effect until the justices decide the case on its merits. Justices Samuel Alito, Clarence Thomas and Neil Gorsuch dissented in their decision to stay the order.

“At this time in the history of our country, what the Court has done, I fear, will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news,” Alito wrote in his dissenting opinion. “That is most unfortunate.” 

The Supreme Court’s decision follows an unusual series of orders in the 5^th Circuit. 

A three-person panel in September determined that the Biden administration likely violated the First Amendment by urging social media companies to take down specific content. They ruled that federal agencies cannot “coerce” social media platforms to remove posts countering the government’s stance.  

Originally, the White House, FBI and Centers for Disease Control and Prevention were found by the panel to have crossed the line into coercion, while the National Institute of Allergy and Infectious Diseases (NIAID), Cybersecurity and Infrastructure Security Agency (CISA) and State Department did not.  

However, after the Justice Department requested a stay from the Supreme Court, the Republican attorneys general who brought the case asked the appeals court to rehear it, in hopes of broadening the its decision. 

Without allowing time for the DOJ to reply, the appeals court granted the attorneys general’s request Monday — a move that the government called “unreasoned” in a renewed stay request to the Supreme Court Tuesday. 

Then, later Tuesday, the 5^th Circuit put its injunction on hold and withdrew its order granting a rehearing. A spokesperson for the court told The Hill the first order was based on a “misunderstanding of the court’s directions” and that the follow-up order “corrected that mistake.”

After rehearing the case, the appeals court determined earlier this month that CISA did overstep, barring the cybersecurity defense agency from acting to “coerce or significantly encourage” tech companies to remove certain content. 

The Republican attorney generals brought the case in a challenge to the Biden administration’s efforts to curb misinformation online, which they called a “campaign of censorship” by the government.

A federal judge sided with them in July, blocking government officials from contacting social media companies over “any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.”

The 5th Circuit’s decision sharply narrowed that ruling. 

Missouri Attorney General Andrew Bailey, one of the attorneys general who brought the lawsuit, called the high court’s decision to stay the order “the worst First Amendment violation in our nation’s history.”

“We look forward to dismantling Joe Biden’s vast censorship enterprise at the nation’s highest court,” Bailey said in a statement.

Louisiana Solicitor General Liz Murrill said in a joint statement with state Attorney General Jeff Landry — the other prosecutor to bring the lawsuit — that the high court’s acceptance of the case is a “significant opportunity for the American people to be heard.”

The Justice Department did not immediately respond to The Hill’s request for comment.