The Supreme Court of the United States issued an order last week extending an administrative stay on the Fifth Circuit Court of Appeals’ decision to enjoin the White House from coercing or encouraging the content decisions of social media platforms.
The pause, which expired September 22, was extended until next week noon EST on September 27.
“The short extension reflects that the Court recognizes the gravity of the issue and novelty of the collective facts and deems it important to provide a considered response,” said Zhonette Brown, senior litigation counsel with New Civil Liberties Alliance. “The extension signals that we can expect a ruling, or at least an opinion, with substantive consideration of the various legal issues. Given the brevity of the extension, we remain optimistic.”
The White House applied for a stay September 14 after the 5th Circuit Court of Appeals in New Orleans ruled that the federal government had violated the First Amendment by manipulating speech.
“The Fifth Circuit’s decision contradicts fundamental First Amendment principles,” U.S. Solicitor General Elizabeth Prelogar wrote in the application. “A central dimension of presidential power is the use of the Office’s bully pulpit to seek to persuade Americans – and American companies – to act in ways that the President believes would advance the public interest.”
As previously reported in the St. Louis Record, the underlying lawsuit, State of Missouri ex rel. Schmitt et al. v. Joseph R. Biden Jr. et al, alleges that YouTube, Meta, and Twitter acted as an arm of the U.S. government in violation of the First Amendment especially in the case of conservative users who disagree with U.S. Pres. Joe Biden’s administration.
"This is one of the most important civil rights issues, essentially, of our time ... the question of whether the right of the government to speak includes the right of the government to interfere with its citizens' ability to be informed," Brown told the St. Louis Record.
Brown is among the attorneys who are representing the plaintiffs.
The attorneys general of Louisiana and Missouri originally filed the lawsuit in the Western District of Louisiana in May 2022. Western District of Louisiana Judge Terry Doughty granted the plaintiffs’ preliminary injunction, but the federal government appealed to the 5th Circuit Court of Appeals in New Orleans.
"When the White House asked for a stay of the injunction, they asked in addition, or alternatively that the court consider that motion as a Petition for Certiorari," Brown added. "We are agnostic on the U.S. Supreme Court accepting the petition, other than we, the plaintiffs, are going to file a motion for rehearing by the Fifth Circuit and I don't believe a grant of certiorari by the U.S. Supreme Court divests the 5th Circuit of its ability to do the rehearing."