SCOTUS Likely to Vacate WH Social Media Injunction if It Grants Cert: DOJ

The 5th U.S. Circuit Court of Appeals “affirmed a sweeping and unprecedented injunction” when it sought to bar officials from the White House, surgeon general’s office, the FBI and the Centers for Disease Control and Prevention from applying what the court called “coercion” on social media companies to moderate their content, said Solicitor General Elizabeth Prelogar in a reply brief Thursday at the U.S. Supreme Court Thursday (docket 23A243) in support of the government’s application for a full stay of the injunction, pending SCOTUS review (see 2309140041).

The injunction was on an administrative stay that was due to expire at 11:59 p.m. EDT Friday. But Justice Samuel Alito extended the administrative stay until Wednesday, also at 11:59 p.m. EDT. Alito is the Supreme Court's circuit judge for the 5th Circuit.

The respondents who oppose the application -- including the Republican attorneys general of Louisiana and Missouri, plus five individual social media users -- don’t and can’t deny that SCOTUS is likely to grant the government’s cert petition, said Prelogar. That’s because the 5th Circuit’s decision affirming the district court’s injunction “conflicts with decisions” of the 2nd, 9th, 10th and D.C. circuits, she said.

The 5th Circuit’s decision also raises “serious separation-of-powers concerns” by “embroiling the judiciary” in the executive branch’s communications with the public and with social media platforms, said Prelogar. Its decision also is “a dramatic expansion of the state-action doctrine,” she said. The respondents have “no persuasive response” to the government’s showing that if SCOTUS grants cert, “it will likely vacate the injunction,” she said. That’s because the respondents lack Article III standing, their First Amendment claims lack merit, and the injunction is overbroad, she said.

The injunction is based on “sweeping and unprecedented understandings of Article III standing, the state-action doctrine, and the proper scope of equitable relief,” said Prelogar. The respondents’ opposition to the application “underscores the remarkable breadth” of the injunction, she said. The respondents “insist that any individual or entity can establish standing to challenge any government action affecting speech by any third party merely by asserting a generalized desire to hear that speech,” she said.

But that’s a proposition “that would effectively abolish Article III’s limitations in free-speech cases,” said Prelogar. The respondents acknowledge the 5th Circuit’s decision affirming the injunction “transforms private social-media platforms’ content moderation into state action subject to the First Amendment,” she said. That subjects the platforms to suits “compelling them to distribute speech they would prefer not to host,” she said.

The respondents don’t deny the injunction “installs the district court as the overseer” of the executive branch’s communications with and about the platforms, said Prelogar. That exposes “thousands of government employees to the threat of contempt,” should the court conclude that their statements run afoul of the 5th Circuit’s “novel and vague definition of state action,” she said.

The respondents also offer “little or no defense” of the 5th Circuit’s “key legal holdings,” including its “expansive understanding” of the sort of coercion and significant encouragement “that transform private conduct into government action,” said Prelogar. The respondents instead “repeatedly seek to plug the holes” in the 5th Circuit’s legal analysis by invoking the district court’s “factual findings,” which they insist must be deemed to be established as fact, she said.

The government “vigorously disputed those findings,” and the 5th Circuit declined to rely on many of them, “presumably because they are unsupported or demonstrably erroneous,” said Prelogar. The respondents’ presentation to the Supreme Court “paints a deeply distorted picture by pervasively relying on those debunked findings,” she said. The respondents’ unwillingness to defend the 5th Circuit’s holdings that the findings it did credit “are sufficient to establish coercion and significant encouragement only further confirms that those holdings are wrong,” she said.

The respondents’ opposition to the application also confirms “that the equities overwhelmingly favor staying the injunction” pending SCOTUS review, just as it was stayed during the proceedings in the 5th Circuit, said Prelogar. The respondents don’t and can’t contend that a sweeping injunction restricting the executive branch’s communications with all social media platforms about all content posted by all users “is necessary to prevent any direct injury” to the respondents themselves, she said.

The respondents instead “invoke purported harms to third parties" who haven’t sought judicial relief and aren’t parties to this suit, said Prelogar. Those harms to nonparties aren’t “a valid basis for injunctive relief at all,” she said. They certainly don’t justify “allowing a novel and profoundly disruptive injunction to take effect” before SCOTUS has the opportunity to review it, she said.