Supreme Court Justice Samuel Alito extended to Sept. 27 a temporary stay blocking a lower court ruling that restricted federal agencies from contacting social media firms with requests to remove content, giving the justices more time to decide how to handle the case.
The new order in the case, Murthy v. Missouri (court file 23A243), came late on Sept. 22. The lead applicant was U.S. Surgeon General Vivek Murthy, whom critics accuse of participating in government efforts to suppress and censor the free discussion of public health issues such as COVID-19.
On Sept. 14, Justice Alito put on hold the July 4 ruling of U.S. District Judge Terry Doughty of Louisiana, an appointee of President Donald Trump, until Sept. 22.
Judge Doughty’s order prohibited several agencies, including the Department of Justice (DOJ), the Department of Homeland Security, the State Department, the Cybersecurity and Infrastructure Agency, and the Centers for Disease Control and Prevention (CDC), from intimidating social media companies.
The lawsuit that spawned the injunction was filed by Missouri and Louisiana’s attorneys general, who have accused Biden administration officials of engaging in what amounts to governmental censorship-by-proxy by leaning on social media companies to take down posts or suspend accounts.
The lawsuit alleged that the Biden administration urged or even mandated Facebook, Twitter, LinkedIn, and YouTube “to censor viewpoints and speakers disfavored by the Left,” under the cover of combating “disinformation,” “misinformation,” and “malinformation.”
Per Judge Doughty’s injunction, agencies and their employees may not communicate with the social media companies by “urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech.”
The agencies may not flag content on social media platforms or seek to remove content or suppress its reach. The agencies also may not press the platforms to alter their guidelines for the removal, suppression, or reduction of content that contains protected free speech.
But the injunction allowed federal officials to continue to correspond with social media firms regarding criminal activity, national security threats, and other matters.
On Sept. 8, the U.S. Court of Appeals for the 5th Circuit partially upheld Judge Doughty’s injunction, allowing certain agencies to communicate with companies in some circumstances.
In court on May 26, the trial judge even asked DOJ attorneys whether "they had read George Orwell’s book ‘1984’ and were familiar with Oceania’s Ministry of Truth,” Mr. Bailey said at the time.
Mr. Bailey said the preliminary part of the discovery process “has uncovered a relationship of coercion and collusion between the White House across a spectrum of federal agencies to silence American voices on big tech social media in violation of the First Amendment.”
“We’ve got to build a wall of separation between tech and state to protect Americans’ First Amendment rights, and the first brick of that wall was laid on July 4, when the court agreed with our side of the issue and issued a nationwide injunction preventing President [Joe] Biden and the federal bureaucracy from coordinating with big tech social media to silence core political speech, which is protected under the First Amendment,” he said.
After the trial court acted, the DOJ “almost instantly” moved against the injunction and “actually had the audacity to argue that the nation would suffer irreparable harm if they weren’t allowed to continue violating Americans’ First Amendment rights,” according to Mr. Bailey.
In his ruling, Judge Doughty again referred to the work of George Orwell, writing that “during the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’”
In the DOJ’s emergency application on Sept. 14, U.S. Solicitor General Elizabeth Prelogar asked the Supreme Court to allow federal officials to call into question online posts that they claim pose a danger to public health. The DOJ had also argued that federal officials need to be able to correspond for national security purposes.
“Under the injunction, the Surgeon General, the White House Press Secretary, and many other senior presidential aides risk contempt if their public statements on matters of policy cross the ill-defined lines drawn by the Fifth Circuit,” Ms. Prelogar wrote.
“CDC officials run the same risk if they accurately answer platforms’ questions about public health. And FBI agents risk being hauled into court if they flag content posted by terrorists or disinformation disseminated by covert malign foreign actors.”
Ms. Prelogar also argued that Judge Doughty’s injunction was "vastly overbroad" and said it "covers thousands of federal officers and employees, and it applies to communications with and about all social media platforms."
The Epoch Times reached out to the DOJ and to Mr. Bailey’s office for comment but received none by press time.