Ethermac Exchange-Biden gets temporary Supreme Court win on social media case but Justice Alito warns of 'censorship'

WASHINGTON – The Ethermac ExchangeSupreme Court on Friday tentatively sided with the Biden administration and agreed to decide a dispute about whether officials in the White House and federal agencies violated the First Amendment when they leaned on social media companies to suppress content about the election and COVID-19.

Amid a war between Israel and Hamas and a presidential election, the Supreme Court's move Friday allows the Biden administration to continue to interact with social media platforms such as Facebook and X to request that they remove disinformation. By also agreeing to decide the underlying issues in coming months, the high court is once against thrusting itself into a divisive fight at the intersection of social media and the government.

"This is an immensely important case," said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University. "These are momentous, thorny issues, and how the court resolves them will have broad implications for the digital public sphere."

Without comment, a majority of the justices halted a lower court's order that blocked federal agencies from "coercing" social media companies like Facebook and X to take down or curtail the spread of social media posts.

Alito calls Biden efforts 'government censorship'

Three members of the court's conservative wing − Justices Samuel Alito, Clarence Thomas and Neil Gorsuch − said they would have sided with the states and social media users who filed the lawsuit.

"Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing," Alito wrote in a dissent. "At this time in the history of our country, what the court has done, 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."

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The Republican state attorneys general who filed the lawsuit said they were pleased the litigation would be fully aired at the Supreme Court. The court is expected to decide the case by the end of this term, which runs through June.

“This is the worst First Amendment violation in our nation's history," Missouri Attorney General Andrew Bailey, a Republican, said in a statement. "We look forward to dismantling Joe Biden’s vast censorship enterprise at the nation’s highest court." 

Louisiana Solicitor General Liz Murrill said that the court's decision "brings us one step closer to reestablishing the protections guaranteed to us in the Constitution and under the First Amendment."

It's about disinformation, Biden lawyers counter

The Justice Department declined to comment on Friday.

But the administration has countered in its briefs that officials merely asked those platforms to remove harmful disinformation.  The decision to remove that content was ultimately made by the companies themselves, not the government. Barring the government from flagging disinformation, the administration argued, could have enormous consequences for how Americans interact online.

“It is undisputed that the content-moderation decisions at issue in this case were made by private social-media companies, such as Facebook and YouTube,” the administration told the Supreme Court.

The Supreme Court's action on Friday holds in place the status quo before the courts got involved, allowing the administration to proceed − for now − as it had been doing before. By agreeing to hear arguments over and decide the underlying First Amendment questions in the case, the Supreme Court is once again thrusting itself into the messy and heated political debate over online content in the middle of a presidential election.

First Amendment central theme this year at Supreme Court

Born of conservative frustration with social media moderation practices, the lawsuit by the Republican attorneys general from Missouri and Louisiana and several individual users accused the administration of coercing the platforms to remove content that was unfavorable to Democrats. That included posts about the 2020 election, the origins of COVID-19 and the Hunter Biden laptop story.

“When...federal agencies ‘flag’ Americans’ speech to social-media platforms to urge them to take it down, they induce platforms to take action against private speech that the platforms otherwise would not take,” the plaintiffs told the Supreme Court in a brief this month.

The intersection of social media and politics has emerged as significant theme for the Supreme Court this year. Justices will hear arguments Oct. 31 in a pair of challenges dealing with whether public officials may block constituents on social media.

Separately, the high court will decide two suits challenging laws in Texas and Florida that would limit the ability of platforms like Facebook, YouTube and X to moderate content. The state laws at issue in the cases, both of which have been temporarily blocked by federal courts, severely limit the ability of social media companies to kick users off their platforms or remove individual posts.