White House, States Try To Convince Supreme Court In Jawboning Case

As we noted last week, the Supreme Court put on hold the injunction issued by the 5th Circuit regarding the administration's efforts to influence how social media companies deal with misinformation. As you'll recall, Louisiana and Missouri and a variety of nonsense peddlers all sued the Biden administration, claiming that their 1st Amendment rights were violated by the administration's actions.

The district court ruling in the case was mostly batshit crazy, taking things completely out of context and literally adding words to quotes to make it seem like people said stuff they absolutely did not. But, if you make up quotes that are not accurate, then you can claim that the White House was engaged in censorship." The 5th Circuit reviewed the decision and recognized it went way too far, and trimmed it way back, saying that many of the defendants shouldn't be there (including many that the plaintiffs insisted were core to the issue), that 9 of the 10 prohibitions were too broad, and even the remaining prohibition needed to be trimmed back.

However, even the 5th Circuit's ruling was weird. It did not clearly explain what made certain things coercive" vs. persuasive," and the lack of specificity meant that it was useless in explaining to anyone what was and what was not permitted. Somewhat like the lower court ruling, the 5th Circuit ruling also took a number of quotes out of context, and the quotes shown in the ruling... are confusing. The 5th Circuit makes no effort to even explain who made the quotes or what they were in reference to. It also lumps together all of the social media platforms as if they were a single entity.

And so the White House went to the Supreme Court shadow docket, which put the 5th Circuit injunction on hold until midnight today. Just to be clear what's going on, procedurally: the White House is in the process of doing a full appeal to the Supreme Court, which would allow for full briefing (including, I'm sure, a metric ton of amicus brief filings) and oral arguments. This process is just to see if the injunction the 5th Circuit issued last week is put on hold, or put into practice, until that case is decided on. The White House wants it put on hold. The states/nonsense peddlers want it to go into effect. As I noted in my coverage of the 5th Circuit ruling, I actually don't think it's that bad if it goes into effect, but I'm also sure that nonsense peddlers will use it to cause mischief, accusing many non-coercive government actions of being coercive and violating the injunction.

On Wednesday the plaintiffs in the case (Missouri, Louisiana, various nonsense peddlers) filed their brief. Yesterday, the White House filed its response. Separately there were some amicus briefs filed, though none are... um... good. Some are preposterously stupid and embarrassing. But given that the stay only exists until tonight, we'll just focus on the main two filings.

The states/nonsense peddlers simply keep playing the same hand that has been successful to date. For example, they misquote the email Rob Flaherty sent to Facebook, suggesting it's proof that the White House was pressuring the company to take down content:

Things apparently became tense between the White House and Facebook after that, culminating in Flaherty's July 15, 2021 email to Facebook, in which Flaherty stated: Are you guys fucking serious? I want an answer on what happened here and I want it today.'"

Except, as we've shown, that email was about a problem with Facebook limiting the number of followers that the POTUS account had, and had literally nothing to do with content moderation questions:

Also, the part that the states are quoting above is from the district court ruling and not the 5th Circuit injunction, which is what is on appeal. Which is... kinda weird. Basically, the states are trying to pretend that the 5th Circuit adopted the district court's ruling, when it mostly did not.

Beyond that, there really isn't much new in this filing beyond just saying look, the district court ruling was right! censorship censorship!"

The White House's response is better than I expected, honestly. It points out the ridiculousness of the standing argument by the plaintiffs (at this point, technically now respondents due to how the process works):

Respondents' opposition underscores the remarkable breadth of the decision below. Respondents insist that any individual or entity can establish standing to challenge any government action affecting speech by any third party merely by asserting a generalized desire to hear that speech - a proposition that would effectively abolish Article III's limitations in free-speech cases. Respondents acknowledge that the Fifth Circuit's decision transforms private social-media platforms' content moderation into state action subject to the First Amendment - and thus subjects the platforms to suits compelling them to distribute speech they would prefer not to host. And respondents do not deny that the injunction installs the district court as the overseer of the Executive Branch's communications with and about the platforms, exposing thousands of government employees to the threat of contempt should the court conclude that their statements run afoul of the Fifth Circuit's novel and vague definition of state action.

As I mentioned, above, with the states leaning so heavily on the district court's ruling, rather than the 5th Circuit's it creates some oddities, which the White House calls out:

Respondents also offer little or no defense of the Fifth Circuit's key legal holdings, including its expansive understanding of the sort of coercion" and significant encouragement" that transform private conduct into government action. Instead, respondents repeatedly seek to plug the holes in the Fifth Circuit's legal analysis by invoking the district court's factual findings, which they insist must be deemed to be established as fact." Opp. 2. But the government vigorously disputed those findings below and the Fifth Circuit declined to rely on many of them - presumably because they are unsupported or demonstrably erroneous. Respondents' presentation to this Court paints a deeply distorted picture by pervasively relying on those debunked findings. And respondents' unwillingness to defend the Fifth Circuit's holdings that the findings it did credit are sufficient to establish coercion and significant encouragement only further confirms that those holdings are wrong.

Also, the White House notes that the states/nonsense peddlers point to harms to third parties who are not party to the suit as evidence of standing, but that makes no sense:

Respondents do not and could not contend that a sweeping injunction restricting the Executive Branch's communications with all social media platforms about all content posted by all users is necessary to prevent any direct injury to respondents themselves. Instead, they invoke purported harms to third parties who have not sought judicial relief and are not parties to this suit. Those harms to non-parties are not a valid basis for injunctive relief at all; they certainly do not justify allowing a novel and profoundly disruptive injunction to take effect before this Court has the opportunity to review it.

This is all correct.

The annoying thing here is that this issue of government jawboning is an important one, and there should be clear limits to it. The government can try to persuade, but it cannot coerce. But where is that line? In the past I've said that the Bantam Books case and the Backpage v. Dart cases were really useful in limiting the government's ability to pressure private entities to censor. But there are strong arguments that neither case set out a clear, applicable standard.

In this case, I'm uncomfortable with the overall arguments of both sides. The White House wants to push the line on what is and what is not coercive too far to the permissive side. I don't think it should go as far as they want. But the states/nonsense peddlers are taking a much more ridiculous line, saying that basically government officials can do nothing (unless they're Republican, in which case they can do anything).

But, as of right now, we don't have a clear judicial standard on where that line is drawn.

This case is an opportunity to set such a standard, but given (1) the nonsense being peddled by the plaintiffs, (2) the ridiculously problematic district court ruling, (3) the unexplainable vagueness in the 5th Circuit ruling, and (4) the partisan nature of the Supreme Court... I'm not at all sure that this case is going to lead to a clear and applicable standard.

This is frustrating. One would hope that the Supreme Court would allow the stay to remain in place and allow for a full briefing/hearing on the issues here. It's a complex case, but the docket is mostly full of FUD and nonsense, which is not a great start for finding where the proper line is.