Supreme Court Takes Up Case Regarding White House Pressure On Social Media Moderation, While Alito, Thomas & Gorsuch Seem Confused

We've been following the bizarre and frequently problematic case initially brought by Louisiana and Missouri against the Biden administration, claiming that the administration's coordination with researchers and pressure on social media companies regarding how they moderate content violates the first amendment. As we've said for quite some time, there are legitimate and important questions about the boundaries between government officials using the bully pulpit to persuade companies to act in a certain way (allowed) and using threats to coerce companies to act in a certain way (very much not allowed).

This area of law, generally referred to as jawboning", is tragically underdeveloped, and while we have a few cases like Bantam Books, Okwedy v. Molinari, and Backpage v. Dart, none of them set out a clear and understandable standard for where the line is. And now it looks like this case, now dubbed Murthy v. Missouri due to how it reached the Supreme Court, may become a key case in drawing that line. I just really wish the underlying facts of the case weren't so... pathetically stupid.

Back in July, district court Judge Terry Doughty issued what was a batshit crazy ruling that not just accepted conspiracy theory nonsense as fact, but literally involved Doughty inserting words that were never said into statements made by people in order to make his ruling make any sense. That's a problem. But the end result was that Doughty insisted that the (admittedly stupid and haphazard) methods by which the White House urged social media companies to deal with COVID disinfo were one of the most egregious censorship" campaigns of all time.

As we noted at the time, even if you could argue that a few moves by the White House may have edged over the persuasion/coercion line, none seemed particularly problematic or egregious. Even then, Doughty issued a big list of prohibitions that effectively made it impossible for anyone in the government to ever talk to any disinformation researcher or anyone at a social media company ever again, even if it was to discuss things like actual foreign attacks on elections. That seemed... problematic.

The case went up to the 5th Circuit, which quickly issued a ruling that scaled back the prohibitions issued by Judge Doughty, throwing out nine of the ten prohibitions as going too far, and massively scaling back the one remaining prohibition to basically just a ban on coercive actions. It also cut out three of the government defendants, though, when pressed by the plaintiffs, added one back weeks later with no explanation, just by changing one paragraph to basically say oh yeah, CISA too."

And while I think the 5th Circuit's decision that rolled back nearly all of the district court's ruling was a lot closer to reasonable, it still did not put forth any clear boundaries or rules that would allow anyone to understand where the line is drawn between illegal coercion and perfectly reasonable persuasion. The Schroedinger-like reversal on CISA as to whether it was included in the injunction or not kinda put the exclamation point on the fact that the 5th Circuit's opinion, while citing to the rules set forth in those cases named above, really did less than nothing to clarify what the standards or tests ought to be. While it argues that it applied the 2nd Circuit's test for jawboning, it clearly did not do that with CISA, as no clear explanation is given for whether CISA violated the law or not in the two separate rulings. In one ruling it says they obviously did not. In the other, it says they obviously did.

That's... not giving the guidance that any test needs.

And, so the case got appealed to the Supreme Court, initially by one of the defendants, US Surgeon General Vivek Murthy (hence the new name for the case). Except even that has happened in a weird and non-standard way. Murthy went to the Supreme Court's shadow docket to ask it to put a stay on the 5th Circuit's ruling, which Justice Alito initially did. And while Murthy's petition made it clear that the shadow docket petition could be quickly followed by a full cert petition, things got weird with the 5th Circuit, which initially said it was rescinding its initial decision, then said it wasn't, then issued that new one that roped in CISA. And it wasn't even clear what actually happened to the initial petition. Alito had given it a deadline. Then extended the deadline. And then nothing at all happened.

Until today.

The Supreme Court has issued a stay on the 5th Circuit's injunction (which itself is a modified version of Judge Doughty's injunction), saying that it will treat the shadow docket petition for a stay as a full cert petition and grant the petition, agreeing to hear the case shortly.

The application for stay presented to JUSTICE ALITO and by him referred to the Court is granted. The preliminary injunction issued on July 4, 2023, by the United States District Court for the Western District of Louisiana, case No. 3:22-cv-01213, as modified by the United States Court of Appeals for the Fifth Circuit on October 3, 2023, case No. 23-30445, is stayed. The application for stay is also treated as a petition for a writ of certiorari, and the petition is granted on the questions presented in the application. The stay shall terminate upon the sending down of the judgment of this Court.

But, even then things are weird. Because Justices Alito, Thomas, and Gorsuch wrote a dissent, saying they didn't think the application for the stay should have been granted at all, arguing that the prohibitions on the government communicating with social media companies didn't seem to present any irreparable harm, and the claims of potential chilling effects seemed only hypothetical."

Under a straightforward application of the test we use in deciding whether to grant a stay, the Government's application should be denied. To obtain a stay pending the disposition of a petition for a writ of certiorari, an applicant must show, among other things, a likelihood that irreparable harm will result from the denial of a stay." Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam). A stay is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 22 (2008) (discussing the similar standard for an injunction). Thus, the Government in this case must make a clear showing" of irreparable harm. And to do that, it is not enough to simply sho[w] some possibility of irreparable injury.'" Nken v. Holder, 556 U. S. 418, 434 (2009). A mere possibility' standard is too lenient." Id., at 435 (quoting Winter, 555 U. S., at 22). Instead, the Government must prove that irreparable harm is likel[y]." Hollingsworth, 558 U. S., at 190. Here, the Government's attempts to demonstrate irreparable harm do not come close to clearing this high bar.

Instead of providing any concrete proof that harm is imminent," White v. Florida, 458 U. S. 1301, 1302 (1982) (Powell, J., in chambers), the Government offers a series of hypothetical statements that a covered official might want to make in the future and that, it thinks, might be chilled. Application 36-38. But hypotheticals are just that-speculation that the Government may suffer irreparable harm at some point in the future," not concrete proof. White, 458 U. S., at 1302 (emphasis added). And such speculation does not establish irreparable harm. Nken, 556 U. S., at 434; see also Clapper v. Amnesty Int'l USA, 568 U. S. 398, 414, n. 5 (2013) (rejecting similar speculation as insufficient to establish an Article III standing injury).

But that's wrong. The whole point of 1st Amendment arguments around chilling effects, which are often given credence by courts on hypothetical" scenarios, is that the lack of clarity is itself a chilling effect that will lead them not to speak, and that alone is a problem.

The three justices also claim that they don't see how any of the scenarios the government presents would actually be barred by the 5th Circuit's (scaled back) injunction:

Moreover, it does not appear that any of the Government's hypothetical communications would actually be prohibited by the injunction. Nor is any such example provided by the Court's unreasoned order. The Government claims that the injunction might prevent the President and the senior officials who serve as his proxies" from speak[ing] to the public on matters of public concern." Application 36; accord, id., at 3 (suggesting that the Fifth Circuit's decision implicates the use of the Office's bully pulpit to seek to persuade Americans"). The President himself is not subject to the injunction, see Missouri v. Biden, 2023 WL 6425697, *33, and in any event, the injunction does not prevent any Government official from speaking on any matter or from urging any entity or person to act in accordance with the Government's view of responsible conduct. The injunction applies only when the Government crosses the line and begins to coerce or control others' exercise of their free-speech rights. Does the Government think that the First Amendment allows Executive Branch officials to engage in such conduct? Does it have plans for this to occur between now and the time when this case is decided?

But all of this is wrong. First of all, the claim that Biden is not included seems wrong? The injunction is issued against the White House," which seems like it would include the President. But, really, the latter half is the whole problem. The 1st Amendment already bars the government from crossing that line and acting coercively. But the problem with the 5th Circuit's injunction is that it provides no clear way to know if anyone is crossing that line. And that's what the petition is really arguing.

If the government parties don't know how that line is drawn, then the only way to stay on the right side of it is to over restrict themselves. And that's the chilling effect harm that they are talking about.

And it's bizarre that Alito, Thomas, and (especially) Gorsuch, seem unable to recognize that.

Again, it would be good to get a clear ruling with a clear explanation of a test on how you draw that line between allowed persuasion and 1st Amendment-violating coercion. One hopes that the Supreme Court will do a good job of that, but given everything about this case so far, who the hell knows how that's actually going to play out.