GOP AGs Urge SCOTUS to Deny DOJ’s Application to Stay WH Injunction Pending Cert

The Cybersecurity and Infrastructure Security Agency “meets interminably” with social media platforms to discuss content-moderation policies and censorship, said the Republican attorneys general of Louisiana and Missouri, plus five individual social media user plaintiffs, in a respondents’ brief Tuesday (docket 23A243) at the U.S. Supreme Court.

The plaintiffs were defending the 5th Circuit U.S. Court of Appeals’ revised opinion Oct. 3 adding CISA officials, including Director Jen Easterly, to the injunction that bars Biden administration members from coercing or significantly encouraging social media platforms to moderate their content, after the court previously absolved CISA of any alleged wrongdoing (see 2310040001).

DOJ is asking SCOTUS to approve its emergency application for a full stay, pending disposition of the government’s forthcoming cert petition to vacate the injunction entirely (see 2310060001). The 5th Circuit’s 10-day administrative stay of the injunction expires Friday unless Justice Samuel Alito, SCOTUS circuit judge for the 5th Circuit, extends it.

CISA “monitors and demands reports” on the social media platforms’ content-moderation policies, said the respondents’ brief. The agency also pushes the platforms “to adopt more restrictive policies,” it said. It “relentlessly flags ordinary Americans’ core political speech for censorship on the basis of viewpoint” and engages in “de facto fact-checking for the platforms’ content-moderation teams,” it said. CISA also organizes “similar censorship efforts by state and local officials, and coordinates efforts by the FBI and other federal law-enforcement and national-security agencies to push platforms to censor disfavored speech,” it said.

CISA does so against the “backdrop” of intense pressure to censor from other federal officials and agencies, including the White House, the FBI, members of Congress and senior congressional staffers, said the brief. Both U.S. District Judge Terry Doughty for Western Louisiana and the 5th Circuit’s revised opinion “correctly held that CISA likely violates the First Amendment,” it said.

CISA’s censorship activities “are ongoing and expanding,” and will continue unabated unless enjoined by the injunction, said the respondents’ brief. CISA violated the First Amendment “by becoming deeply entangled in social-media platforms’ specific content-moderation decisions,” it said. It did so “to the point of dictating policies and inducing platforms to remove specific speakers, content, and viewpoints,” it said.

The government’s third supplemental memorandum Oct. 5 in support of its emergency application “provides no convincing argument for staying the injunction as to CISA or any other entity,” said the respondents’ brief. CISA “deeply insinuated itself” into the platforms’ content-moderation decisions, it said.

CISA also “became entangled” in those decisions, and became “a willful participant in joint action with the platforms,” said the brief. The agency also engaged in “overt and significant state participation” in content-moderation decisions, and displayed “a substantial degree of cooperative action in them,” it said. It played “a meaningful role in those decisions,” it said.

The government argues administration officials are entitled to express their own views of what is true or false in the marketplace of ideas, said the respondents’ brief. But CISA didn’t just express its own views, it said: “It engaged in a relentless campaign, involving hundreds of meetings and thousands of communications, to pressure platforms to silence other peoples’ views.”

In the government’s view, “relentless mass-flagging operations by government officials,” such as those undertaken by CISA for the whole purpose of silencing Americans’ speech on the basis of viewpoint, are “perfectly acceptable” because they merely constitute attempts to convince, not coerce, said the respondents’ brief. But that “conception of state action is too narrow,” it said.

The government also argues that a proper view of the state-action doctrine “requires a showing of effective coercion,” said the respondents’ brief. But SCOTUS “has long, and soundly, rejected that theory of state action,” it said. It cited the court’s 1989 decision in Skinner v. Railway Labor Executives Association, saying that the fact that the government hasn’t compelled a private party doesn’t by itself establish that the action is a private one. That’s because state action may be found where the government did more than adopt a passive position toward the underlying private conduct, it said.

In the present case, CISA did more than adopt a passive position toward “stifling disfavored viewpoints on social media,” said the respondents’ brief. The agency “met incessantly with platforms to push them to censor disfavored speech,” and it induced them “to adopt more restrictive content-moderation policies,” it said. The government’s application for a stay of the injunction should be denied, it said.