DOJ asks Supreme Court to stay injunction in Biden social media case

The Justice Department on Thursday asked the Supreme Court for a stay against an appeals court’s order limiting the Biden administration’s communication with social media companies over free speech concerns until the high court decides whether to hear the case.

“This application concerns an unprecedented injunction installing the United States District Court for the Western District of Louisiana as the superintendent of the Executive Branch’s communications with and about social-media platforms — including senior White House officials’ speech addressing some of the most salient public issues of the day,” U.S. Solicitor General Elizabeth Prelogar wrote in a new court filing.

Later Thursday, Justice Samuel Alito, who handles emergency requests from the 5^th Circuit Court of Appeals, issued a brief pause of the injunction — until Sept. 22 — so that opposing counsel can respond to the government’s request. The order is not an indication of how Alito might vote if the Supreme Court ultimately takes up the case. 

The request follows the appeal court’s determination that the Biden administration likely violated the First Amendment by pressuring social media companies to moderate specific content, ruling that federal agencies cannot “coerce” social media platforms to take down posts the government doesn’t like. 

Agencies including the White House, FBI and Centers for Disease Control and Prevention were found by the appeals court 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.

The DOJ argued Thursday that the appeals court imposed “unprecedented limits” on the federal agencies’ ability to address matters of public concern, prevent threats to national security and relay information, calling the court’s findings “startling.”

“If allowed to take effect, the injunction would impose grave and irreparable harms on the government and the public,” Prelogar wrote.

The case was brought by two Republican attorneys general in a challenge to the Biden administration’s efforts to curb false information online. They called the efforts a “campaign of censorship” and said federal officials “coordinated and colluded with social-media platforms” to limit the reach of conservative-leaning content. 

In July, a Louisiana-based federal judge sided with the attorneys general and barred Biden administration officials from contacting social media companies relating to “any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.” The appeals court’s decision sharply narrowed the federal judge’s ruling.

The Justice Department’s request signals that the agency intends to file an appeal with the Supreme Court, setting up a legal battle with resounding implications for online speech. 

Updated 2:57 p.m.