In July, a federal judge issued an order limiting the Biden administration’s social media contacts over Republicans’ concerns that officials illegally suppressed speech. That order was mostly overturned last week, and now, US Solicitor General Elizabeth B. Prelogar has rushed to ask the Supreme Court to reevaluate one of the order’s remaining restrictions.
In a court filing yesterday, Prelogar requested that the Supreme Court extend the stay of a preliminary injunction banning officials from “coercing” or “significantly encouraging” social media content removals. The injunction would’ve taken effect Monday, but the Biden administration wants the stay extended while the Supreme Court reviews the lower court’s decision. If the stay isn’t extended, Prelogar argued that the allegedly overly broad injunction “would impose grave and irreparable harms on the government and the public” by preventing officials from quickly responding during emergencies and generally advocating and defending policies that advance the public interest.
The “sweeping preliminary injunction” governs “thousands of federal officials’ and employees’ speech concerning any content posted on any social-media platform by anyone,” Prelogar said. “The implications of the Fifth Circuit’s holdings are startling. 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, on the FBI’s ability to address threats to the Nation’s security, and on the CDC’s ability to relay public health information at platforms’ request.”
Prelogar alleged that the “unprecedented injunction” improperly installed the Fifth Circuit “as the superintendent of the Executive Branch’s communications with and about social-media platforms.” She also argued the lower court adopted “a novel and disruptive conception of the state-action doctrine” that allegedly runs afoul of the First Amendment, “trenches on the separation of powers, and conflicts with the decisions of other courts of appeals.”
The Solicitor General emphasized the urgency of the request, confirming that the federal government would officially petition the Supreme Court to review the case by October 12, ensuring that the Supreme Court has a chance to possibly reverse the lower court’s decision this term. Urging even faster action, Prelogar requested that yesterday’s court filing be taken as the government’s official request for the Supreme Court review, requiring no further briefings or filings to expedite the process.
Prelogar said that the injunction should be fully blocked until the Supreme Court decides whether it would review the case. “At minimum,” Prelogar argued that the injunction should at least be restricted to preventing the Biden administration from discussing with platforms “any content posted by the individual respondents themselves,” rather than restricting officials from contacting platforms about any content hosted on any platform.
“The injunction sweeps far beyond what is necessary to address any cognizable harm to respondents: Although the district court declined to certify a class, the injunction covers the government’s communications with all social-media platforms (not just those used by respondents) regarding all posts by any person (not just respondents) on all topics,” Prelogar wrote.
That’s far from the standard that an injunction “be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs,” Prelogar argued.
“Any injunctive relief must be limited to government actions targeting respondents’ social-media accounts and posts,” Prelogar said. That “would largely or entirely eliminate any harm that respondents might face without burdening a vast universe of government actions lacking any connection to respondents,” Prelogar said.