Ohio’s GOP AG Urges Alito to Deny DOJ’s Application to Stay WH Injunction

The facts of the case that sparked the preliminary injunction that bars officials from the White House, the Office of the Surgeon General, the FBI and the Centers for Disease Control and Prevention from coercing social media platforms to moderate their content show that the federal officials wielded “their influence and power to censor the speech of individuals” whose viewpoints they disfavored, said Ohio Attorney General Dave Yost (R).

Yost’s U.S. Supreme Court amicus brief Tuesday (docket 23A243) urged Justice Samuel Alito to deny the government’s application for a full stay of the injunction, pending the disposition of its forthcoming cert petition (see 2309140041). The 10-day administrative stay of the injunction that the 5th U.S. Circuit of Appeals granted Sept. 8 was to have expired Monday, but Alito extended it to 11:59 p.m. EDT Friday (see 2309140046). Alito is circuit judge for the 5th Circuit.

The Republican AGs of Louisiana and Missouri, lead plaintiffs in the case against the government, have a 4 p.m. EDT deadline Wednesday for responding to the government’s application for a full stay.

DOJ now seeks a full stay “in hopes of aiding and abetting” the government’s “program of censorship,” said Yost’s amicus brief. “Alas, this case is not a one-off,” it said. In recent years, too many in DOJ “have caused that powerful entity to abandon its role as a neutral enforcer of law,” it said. The July 4 injunction, as pared down and modified Sept. 8 by the 5th Circuit, doesn’t apply to officials from DOJ.

Fixing the problem “begins with acknowledging it,” said Yost’s amicus brief. The government’s application “provides a good vehicle for doing so,” it said. DOJ is petitioning SCOTUS for “equitable relief,” in the form of a stay pending appeal, it said.

The public interest factor in the cases “proves dispositive,” said Yost’s amicus brief. “Even if the government ultimately shows that its conduct stopped short of violating the First Amendment (it will not), or that the respondents lacked standing to sue (it will not), there is no doubt that it suppressed speech by pressuring social-media companies into censoring viewpoints with which it disagreed,” it said.

The injunction bars government officials suppressing protected speech, said Yost’s amicus brief. “That advances the public interest,” it said. “A stay order would not.” A stay would “significantly undermine the public interest, both by facilitating the suppression of speech,” and also by “entangling” SCOTUS in the government’s “speech-suppressing scheme,” said the brief.

That scheme “is part of a broader pattern of governmental abuse,” said Yost’s amicus brief. Whatever the “ultimate merits,” the public interest “militates against” SCOTUS “intervening on a discretionary basis when doing so would aid the government in wielding its immense power” as an instrument of partisan purpose, it said.