The Supreme Court on Monday will hear arguments challenging the Biden administration’s alleged coordination with Big Tech to censor certain messages, in a case that one side says could impact the discourse around the 2024 election.
The nine justices will decide if a temporary ban on the Biden administration limiting their communication with social media companies should stay in place while the merits of the case are litigated in lower courts.
The case stems from a lawsuit brought by state attorneys general from Missouri and Louisiana that accused high-ranking government officials of working with giant social media companies “under the guise of combating misinformation” that ultimately led to censoring speech on topics that included Hunter Biden’s laptop, COVID-19 origins and the efficacy of face masks.
Andrew Bailey, Missouri’s attorney general, during a House Homeland Security Committee hearing in Washington, D.C., on Jan. 10, 2024. (Graeme Sloan/Bloomberg via Getty Images)
The Justice Department has argued that the temporary ban will cause “irreparable harm” because it may prevent the federal government from “working with social media companies on initiatives to prevent grave harm to the American people and our democratic processes.”
“I think it is absolutely critical that that injunction be affirmed as we move into this election cycle in order to continue to build the wall of separation between tech and state, in order to protect our election and integrity as part of our First Amendment right to free speech,” Missouri Attorney General Andrew Bailey told Fox News Digital in an interview.
“In other words, if you look at the speech that was suppressed, censored at the federal government’s demand, it was exclusively conservative speech,” Bailey claimed.
“Having the injunction in place ensures that there is a free, fair and open marketplace of ideas and that the federal government isn’t discriminating against one viewpoint in order to rig the election,” he said.
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The Supreme Court on Monday will hear arguments challenging the Biden administration’s alleged coordination with Big Tech. (AP Photo/Jacquelyn Martin)
In a July 4 court order last year, U.S. District Court Judge Terry A. Doughty imposed the temporary injunction preventing White House and executive agency officials from meeting with tech companies about moderating content, arguing that such actions in the past were “likely” First Amendment violations.
“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,’” Doughty wrote.
“If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history,” the injunction said. “In their attempts to suppress alleged disinformation, the Federal Government, and particularly the Defendants named here, are alleged to have blatantly ignored the First Amendment’s right to free speech.”
The injunction also claims that “the censorship alleged in this case almost exclusively targeted conservative speech,” but that issues the case raises are “beyond party lines.”
“Viewpoint discrimination is an especially egregious form of content discrimination,” Doughty argued. “The government must abstain from regulating speech when the specific motivating ideology or the perspective of the speaker is the rationale for the restriction.”
The Fifth Circuit Court of Appeals extended the scope of the injunction in October to include the Cybersecurity and Infrastructure Security Agency (CISA) within the Department of Homeland Security.
The DOJ argued in its appeal to the Supreme Court to overturn the injunction orders that the states lack Article III standing, meaning that they haven’t proved direct injury at the hands of the federal government.
“A central dimension of presidential power is the use of the Office’s bully pulpit to seek to persuade Americans – and American companies – to act in ways that the President believes would advance the public interest,” the DOJ wrote in its petition to the high court.
“Of course, the government cannot punish people for expressing different views. Nor can it threaten to punish the media or other intermediaries for disseminating disfavored speech,” the petition states.
“But there is a fundamental distinction between persuasion and coercion. And courts must take care to maintain that distinction because of the drastic consequences resulting from a finding of coercion: If the government coerces a private party to act, that party is a state actor subject ‘to the constraints of the First Amendment,’” it says.
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The Supreme Court will hear arguments in the case Murthy v. Missouri at 10 a.m. on Monday. (AP Photo/Mariam Zuhaib, File)
The Justice Department argued to the Supreme Court that “a central dimension of presidential power is the use of the Office’s bully pulpit to seek to persuade Americans – and American companies – to act in ways that the President believes would advance the public interest.” (Al Drago/Bloomberg via Getty Images)
The Supreme Court, when it agreed to hear arguments over the injunction in the case, temporarily lifted the injunction until they make a final decision. Still, Bailey said he feels confident the high court will ultimately rule in the states’ favor.
“One of the elements that we had to prove in order to obtain the preliminary injunction was a likelihood of success on the merits, “Bailey said.
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“We’ve put on evidence, the trial court made factual findings. I believe that there is a sufficient reason to believe that we’re likely to succeed on the merits, and I think the court is going to review that,” Bailey said.
The Supreme Court will hear arguments in the case Murthy v. Missouri at 10 a.m. on Monday.
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