Alito Extends Stay of White House Social Media Injunction Through Sept. 22

The social media injunction imposed July 4 by U.S. District Judge Terry Doughty (see 2307050042) and modified, affirmed and vacated in part Sept. 8 by the 5th U.S. Circuit Court of Appeals (see 2309110001) “flouts bedrock principles of Article III, the First Amendment, and equity,” said the solicitor general’s U.S. Supreme Court application Thursday (docket 23A243) for a stay, pending resolution of the government’s forthcoming cert petition challenging the injunction on constitutional grounds.

Justice Samuel Alito, circuit judge for the 5th Circuit, immediately ordered the injunction stayed through 11:59 p.m. EDT Sept. 22, four days beyond when the stay was due to expire Monday under the 10-day administrative stay granted by the 5th Circuit. The four-day extension of the administrative stay is seen as giving SCOTUS more time to consider to grant the government's request for a full stay, pending cert. Alito entered similar orders in the recent past, including in the ghost-guns case (docket 23A82) earlier this summer.

Alito also set a Sept. 20 deadline at 4 p.m. EDT for any responses to the government's application. In light of the expedited nature of the appeal, the government expects to file its cert petition by Oct. 13, said the application. To speed things along even faster, it said, SCOTUS could "construe" the application as the cert petition, and grant it without further briefing.

The respondents -- five social media users and the attorneys general of Louisiana and Missouri -- lack Article III standing, said the application. The 5th Circuit wrongly held that they have standing because their posts have been moderated by social-media platforms, it said. But the respondents “failed to show that those actions were fairly traceable to the government or redressable by injunctive relief,” it said.

The respondents, to the contrary, asserted that instances of moderation “largely occurred before the allegedly unlawful government actions,” said the application. The 5th Circuit also wrongly held that the state respondents have standing because they have a right to listen to their citizens on social media. But the 5th Circuit “cited no precedent for that boundless theory, which would allow any state or local government to challenge any alleged violation of any constituent’s right to speak,” it said.

The 5th Circuit’s decision also contradicts “fundamental First Amendment principles,” said the application. It’s “axiomatic” that the government is entitled to provide the public with information and to advocate and defend its own policies, it said. A “central dimension of presidential power” is the use of the White House’s “bully pulpit” to seek to persuade Americans and American companies to act in ways that the president believes “would advance the public interest,” it said.

The government obviously can’t “punish people” for expressing views different from those of a sitting administration, said the application. “Nor can it threaten to punish the media or other intermediaries for disseminating disfavored speech,” it said. But there’s a “fundamental distinction between persuasion and coercion,” it said. Courts must take care “to maintain that distinction because of the drastic consequences resulting from a finding of coercion,” it said.

If the government coerces a private party to act, that party is a “state actor” subject to the constraints of the First Amendment, said the application. SCOTUS “has warned against expansive theories of state action” that would eviscerate private entities’ rights to exercise editorial control over speech and speakers on their properties or platforms, it said.

But the 5th Circuit “ignored those principles,” said the application. It wrongly held that officials from the White House, Office of the Surgeon General and the FBI coerced social media platforms to remove content, it said. It did so “despite the absence of even a single instance in which an official paired a request to remove content with a threat of adverse action,” and despite the platforms having “declined the officials’ requests routinely and without consequence,” it said. The 5th Circuit even suggested that any request from the FBI is “inherently coercive merely because the FBI is a powerful law enforcement agency,” it said.

The 5th Circuit also wrongly held that the White House, the FBI and the Centers for Disease Control and Prevention significantly encouraged the platforms’ content-moderation decisions, and thus transformed those decisions into state action, on the theory that officials were “entangled” in the platforms’ decisions, said the application. But the court didn’t “define that novel standard,” it said.

The implications of the 5th Circuit’s holdings are “startling,” said the application. The court imposed “unprecedented limits” on the ability of the president’s closest aides “to use the bully pulpit to address matters of public concern,” it said. It also did so on the FBI’s ability to address threats to U.S. security, and on the CDC’s ability to relay public-health information at the platforms’ request, it said. And the 5th Circuit’s holding that platforms’ content-moderation decisions are state action “would subject those private actions to First Amendment constraints -- a radical extension of the state-action doctrine,” it said.

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, said the application. If allowed to take effect Tuesday, the injunction “would impose grave and irreparable harms on the government and the public,” it said. In contrast, a continued stay pending further SCOTUS proceedings “would impose no cognizable harm on respondents,” it said.

SCOTUS should therefore stay the injunction in full, pending the filing and disposition of the government’s forthcoming cert petition, said the application. The court, “at a minimum,” should stay the injunction “insofar as it applies beyond any content posted by the individual respondents themselves,” it said.

To expedite further proceedings, the government intends to file a cert petition by Oct. 13, said the application. Should SCOTUS wish to expedite matters further, “it could construe this application” as a cert petition, and grant the petition “without further briefing,” it said.