Good News/Bad News From the Supreme Court on Missouri v. Biden

AP Photo/Patrick Semansky, File

Some good news to report on this frenetic Friday: The United States Supreme Court has granted certiorari in the landmark free speech case of Missouri v. Biden, meaning the high court has agreed to hear the case. 

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As those who have been following along are likely aware, United States District Court Judge Terry Doughty issued a remarkable ruling on the 4th of July, finding that several Biden administration agencies and officials had violated the First Amendment and issuing a broad injunction prohibiting the federal government from continuing to coerce and collude with social media companies to censor speech (under the various guises of “disinformation” that have been used).

The government appealed that ruling to the Fifth Circuit Court of Appeals, which agreed that the government had acted unconstitutionally but narrowed the scope of the injunction. 

While the court found the injunction issued by the district court was warranted, it also found that it was too broad and vague, so limited the scope of it considerably, dispensing with nine of the 10 provisions, but retaining the sixth, while modifying it to read as follows: 

Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes. 

The court also excluded the NIAID, State Department, and CISA from the injunction. Nevertheless, it remains in place for the White House, Surgeon General, FBI, and CDC defendants. The court agreed to stay its decision for 10 days to allow the remaining government defendants an opportunity to appeal to the Supreme Court. 

To sum up: The Fifth Circuit agreed with the district court that White House, Surgeon General, CDC, and FBI officials violated the First Amendment rights of the plaintiffs and they are enjoined from coercing or significantly encouraging social media platforms to remove or suppress protected free speech.

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The Fifth Circuit later added CISA (the Cybersecurity and Infrastructure Security Agency) to the injunction. 

The decision bars CISA as well as its director, Jen Easterly, and several other top agency officials from taking actions that “coerce or significantly encourage” tech companies to remove or reduce the spread of posts.

Again, the government appealed, via an Application filed with the Supreme Court, asking the court to stay the lower court injunction. 

Now, here's where the bad(ish) news comes in. The court granted certiorari in conjunction with granting the government's request for a stay, meaning that the injunction is placed on hold pending the court's deciding the case on the merits, presumably in June of 2024. 

Justice Samuel Alito dissented from the decision to grant the stay, with Justices Clarence Thomas and Neil Gorsuch joining in the dissent. 

In a five-page opinion, Alito – joined by Thomas and Gorsuch – dissented from the court’s decision to put Doughty’s order on hold. Alito complained that his colleagues had put Doughty’s order on hold “without undertaking a full review of the record and without any explanation” until the court issues its ruling on the merits sometime next year. And they did so, Alito continued, even though the Biden administration had not shown that it would be permanently harmed if Doughty’s order remained in place, a key factor in deciding whether to grant its request.

“At this time in the history of our country,” Alito wrote, “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” – social media – “that increasingly dominates the dissemination of news. That is most unfortunate,” Alito concluded.

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So what does this mean? It means that the case will be heard by the Supreme Court, but the injunction prohibiting the government from coordinating with social media platforms to censor certain speech is on hold until it renders its decision. 

The full opinion can be viewed below. 

Mo v Biden by Susie Moore on Scribd

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