Supreme Court will hear Biden administration Big Tech censorship case

The Supreme Court said Friday it would hear arguments in a bombshell case in which lower courts have ruled that the Biden administration likely violated the First Amendment by leaning on social media companies to yank content the White House deemed false or misleading.

In July, US District Judge Terry Doughty, an appointee of former President Donald Trump, barred numerous executive branch officials from contacting social media companies due to collusion and censorship concerns. 

The Supreme Court has stayed Doughty’s ruling in Missouri v. Biden until the high court decides the case.

Justices Samuel Alito, Neil Gorsuch and Clarence Thomas favored rejecting the emergency appeal from the Biden administration Friday and letting the lower court order stand.

“This case concerns what two lower courts found to be a ‘coordinated campaign’ by high-level federal officials to suppress the expression of disfavored views on important public issues,” Alito wrote in his dissent opposing the stay.

Doughty’s ruling was affirmed by the New Orleans-based 5th Circuit Court of Appeals in September, though it narrowed the scope of the district judge’s preliminary injunction. A three-judge panel found that the White House, Centers for Disease Control and Prevention and the FBI “likely coerced or significantly encouraged social-media platforms to moderate content” and in doing so, likely censored free speech. 

The appeals court removed officials from the National Institute of Allergy and Infectious Disease, the Cybersecurity and Infrastructure Security Agency and the State Department from the injunction. 

The states of Missouri and Louisiana brought the lawsuit in response to then-White House press secretary Jen Psaki revealing in July 2021 that the White House was “flagging” alleged misinformation, mainly about COVID-19 vaccines, for removal.

“We are flagging problematic posts for Facebook that spread disinformation,” she said at the time.

The government policing received further pushback last year, when it emerged that the Department of Homeland Security had a portal through which federal officials made social media moderation requests, including to squelch “parody accounts or accounts with virtually no followers or influence,” according to The Intercept.

Sen. Eric Schmitt (R-Mo.) and Louisiana Attorney General and Governor-elect Jeff Landry brought the lawsuit back when Schmitt served as attorney general for the Show-Me State, and both were eager Friday to have their arguments heard by the high court. 

“The United States Supreme Court has granted cert in Missouri v. Biden –  the nation’s highest court will hear the most important free speech case in American history,” Schmitt tweeted.

“I’m proud to have filed this case when I was AG, and will always defend free speech.”

“This grants us an opportunity to affirm once and for all that the government is not permitted to use the government-speech doctrine to muffle the expression of disfavored viewpoints. We look forward to making our arguments soon,” Landry posted on X, quoting Louisiana Solicitor General Liz Murrill.

Officials covered by Doughty’s order included White House press secretary Karine Jean-Pierre, employees of the Justice Department and FBI, Health and Human Services Secretary Xavier Becerra, and Surgeon General Vivek Murthy.

Jean-Pierre told reporters in July that the Biden administration “certainly disagree with this decision” and will “continue to promote responsible actions to protect public health, safety, and security when confronted by challenges like a deadly pandemic and foreign attacks on our election.”