The government can’t “threaten to punish the media or other intermediaries for disseminating disfavored speech,” said the application for a stay, filed by Solicitor General Elizabeth B. Prelogar on behalf of the surgeon general and a number of other government officials. “But there is a fundamental distinction between persuasion and coercion. And courts must take care to maintain that distinction.”
Legal experts have suggested that the case would be a strong candidate for Supreme Court review. Evelyn Douek, a Stanford University professor, told The Washington Post after the 5th Circuit decision that the Supreme Court might weigh in because “the law isn’t clear, the issues are so important, and courts have come to different conclusions.”
The case is the most high-profile one to arise from a growing conservative legal and political push to limit social media companies’ efforts to police what appears on their sites. Republican attorneys general in Missouri and Louisiana, as well as recent investigations in the Republican-controlled House of Representatives, have alleged that government officials are actively colluding with top tech companies to influence public discourse and suppress conservative views. It is a new twist on long-running allegations that liberal tech company employees favor Democrats when making decisions about what posts are removed or limited online.
The ruling by the three-member 5th Circuit panel — Judges Edith Brown Clement, Don R. Willett and Jennifer Walker Elrod, all of whom were appointed by Republican presidents — modified a July 4 injunction issued by U.S. District Judge Terry A. Doughty in Louisiana that had placed even broader limits on government officials’ communications with social media businesses. The 5th Circuit panel concluded that Doughty had erred when he determined that the departments of State, Homeland Security and Health and Human Services and agencies including the U.S. Census Bureau, the National Institute of Allergy and Infectious Diseases, and the Cybersecurity and Infrastructure Security Agency had coerced social media companies to modify their sites.
The Justice Department sought intervention from the Supreme Court after the 5th Circuit granted a 10-day stay on the injunction Monday, pending the Justice Department’s application to the high court.
The Supreme Court faces other requests to weigh in on the future of online content moderation. The Biden administration last month urged the court to overturn a 5th Circuit decision that would allow a Texas social media law to take effect. The law bans companies from removing posts based on a person’s political ideology, and state attorneys general and tech companies alike say clarity is needed from the court on the matter. The 5th Circuit’s ruling diverged from an earlier 11th Circuit ruling that barred a similar Florida law from taking effect.
The Supreme Court earlier this year ruled that the families of terrorism victims did not prove that Google, Twitter and Facebook helped encourage attacks on their loved ones, declining to weigh in on a key internet law at the center of the debate over social media regulation. That law, known as Section 230, holds that tech companies cannot be held responsible for what a third party posts on their sites.
Anne E. Marimow contributed to this report.
