DOJ Asks SCOTUS to Stay Social Media Injunction Until it Resolves Forthcoming Cert Petition

Solicitor General Elizabeth Prelogar wants the U.S. Supreme Court to stay the preliminary injunction that bars Biden administration officials from coercing social media companies to moderate their content, pending the disposition of the government’s SCOTUS cert petition, said her application Thursday afternoon (docket 23A243). The government plans to file its cert petition by Oct. 12, said the application.

The injunction was imposed July 4 by U.S. District Judge Terry Doughty for Western Louisiana, and was affirmed and vacated in part and modified Sept. 8 by the 5th U.S. Circuit Court of Appeals.

The case “concerns an unprecedented injunction” that installs Doughty as “the superintendent” of the executive branch’s “communications with and about social-media platforms,” said the application. The district court’s injunction was stayed during the 5th Circuit proceedings, and the 5th Circuit extended an administrative stay through Monday to allow the government to seek SCOTUS relief.

If allowed to take effect Tuesday, the injunction “would impose grave and irreparable harms on the government and the public,” said the application. But a continued stay “would impose no cognizable harm on respondents,” who are five individual social-media users and the attorneys general of Louisiana and Missouri, it said. “At a minimum,” SCOTUS should stay the injunction “insofar as it applies beyond any content posted by the individual respondents themselves,” it said.