Alito Scolds SCOTUS Majority for Stay of White House Social Media Injunction

U.S. Supreme Court Justice Samuel Alito, in his Friday dissent (docket 23-411), scolded the SCOTUS majority for granting the government’s emergency application for a full stay in the injunction that would have barred dozens of Biden administration officials from coercing or significantly encouraging social media platforms to moderate their content (see 2310210001). SCOTUS granted the full stay Friday just as the administrative stay on the injunction was expiring at 5 p.m. EDT.

SCOTUS also granted the government’s request, for expediting purposes, to construe the emergency application as a cert petition, and it granted that petition. The full stay will remain in effect until SCOTUS resolves the cert petition.

The case will address whether the Republican attorneys general of Louisiana and Missouri and five individual social media users had Article III standing to bring their claims against the government. It also will address whether the government’s challenged conduct transformed private social-media companies’ content-moderation decisions into state action and violated the plaintiffs' First Amendment rights, plus whether the terms and breadth of the preliminary injunction are proper.

Alito twice had extended the administrative stay of the injunction that had been imposed by the 5th U.S. Circuit Court of Appeals to allow SCOTUS time to evaluate the government’s emergency application. Alito is the Supreme Court’s 5th Circuit justice. Joining him in the dissent were Justices Clarence Thomas and Neil Gorsuch.

The SCOTUS majority suspended “the effect” of the injunction against officials from the White House, the surgeon general’s office, the FBI, the Centers for Disease Control and Prevention and the Cybersecurity and Infrastructure Security Agency until the court completes its review of this case, but that “may not occur until late in the spring of next year,” said Alito’s dissent. The majority did so “without undertaking a full review of the record and without any explanation,” it said.

Government censorship of private speech “is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing,” said Alito’s dissent. “Under a straightforward application of the test we use in deciding whether to grant a stay,” the government’s application should have been denied, it said.

To obtain a stay pending the disposition of a cert petition, an applicant must show a likelihood that irreparable harm will result from the denial of a stay, said Alito’s dissent, citing the 2010 decision in Hollingsworth v. Perry. The government's attempts here to demonstrate irreparable harm “do not come close to clearing this high bar” that irreparable harm is “likely,” it said.

'Hypotheticals Are Just That'

Instead of providing any “concrete proof” that harm is imminent, the government “offers a series of hypothetical statements that a covered official might want to make in the future and that, it thinks, might be chilled” by the injunction, said Alito’s dissent. “But hypotheticals are just that” -- speculation that the government may suffer irreparable harm at some point in the future, “not concrete proof,” it said. Such speculation doesn’t “establish” irreparable harm, it said.

It also doesn’t appear that any of the government’s hypothetical communications “would actually be prohibited by the injunction,” said Alito’s dissent. Nor is any such example provided by the majority’s “unreasoned order” granting the full stay pending resolution of the cert petition, it said. The government claims that the injunction might prevent the president and the senior officials who serve as his “proxies” from speaking to the public on matters of public concern, it said.

But the president himself isn’t subject to the injunction, and the injunction doesn’t prevent any government official from speaking on any matter or from urging any entity or person to act in accordance with the government’s “view of responsible conduct,” said Alito’s dissent. The injunction applies only when the government “crosses the line and begins to coerce or control others’ exercise of their free-speech rights,” it said.

Does the government think that the First Amendment allows executive branch officials to engage in such conduct? asked Alito’s dissent: “Does it have plans for this to occur between now and the time when this case is decided?”

Despite the government’s “conspicuous failure” to establish a threat of irreparable harm, the majority “stays the injunction and thus allows the defendants to persist in committing the type of First Amendment violations that the lower courts identified,” said Alito’s dissent. “The majority takes this action in the face of the lower courts’ detailed findings of fact,” and “without a word of explanation,” it said.

'Settled Test' Fails

Applying the SCOTUS “settled test” for granting a stay, Alito would deny the government’s application, said his dissent. “But I would specify in the order that in the unlikely event that a concrete occurrence presents a risk of irreparable harm,” the government “can apply for relief at that time, including, if necessary, by filing an emergency application here,” it said. Such an order would “fully protect” the ability of executive branch officials “to speak out on matters of public concern,” it said.

“At this time in the history of our country,” what SCOTUS has done by granting the cert petition and the full stay, “I fear, will be seen by some” as giving the government “a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news,” said Alito’s dissent: “That is most unfortunate.”

The state of Louisiana, one of the two lead plaintiffs with Missouri, to bring the First Amendment case against the Biden administration, praised SCOTUS for granting the government’s cert petition.

Louisiana is pleased that SCOTUS “will hear this case, giving us yet another opportunity to defend the people from this assault on our First Amendment rights,” said Solicitor General Liz Murrill. “It brings us one step closer to reestablishing the protections guaranteed to us in the Constitution and under the First Amendment."

Louisiana hopes that SCOTUS “will agree that this gross abuse of power must stop and never happen again,” said Murrill. The statement didn’t quote Louisiana AG Jeff Landry (R), who was elected governor in an Oct. 14 primary, and is scheduled to take office Jan. 8. Murrill is running as a Republican to succeed Landry as AG. The office of Missouri AG Andrew Bailey (R) didn’t comment.