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Biden administration takes content moderation order to Supreme Court

An injunction in a case backed by two Republican-led states has limited the government’s communications with social media companies

The Supreme Court building in Washington in 2021.
The Supreme Court building in Washington in 2021. (Bill Clark/CQ Roll Call)

The Biden administration asked the Supreme Court on Thursday to intervene in an ongoing court case where lower courts have limited the government’s communication with social media companies about content moderation.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit last week upheld an injunction in a case brought by social media users and two Republican-led states, Missouri and Louisiana. The administration has said it will appeal.

But Solicitor General Elizabeth Prelogar told the justices in an application that the injunction has installed a single judge “as the superintendent of the Executive Branch’s communications with and about social media platforms.”

The Supreme Court does not have to act on the emergency application submitted by the Biden administration.

The 5th Circuit panel wrote that federal government efforts to have social media companies police false information about the pandemic effectively violated the First Amendment rights of Americans.

“The officials have engaged in a broad pressure campaign designed to coerce social-media companies into suppressing speakers, viewpoints, and content disfavored by the government,” the opinion said.

The appellate court decision gave the Biden administration 10 days to seek Supreme Court review before it would take effect.

Prelogar wrote that the court decision “flouts” normal government principles that allow for the administration to advocate its own policies.

The solicitor general’s brief argued the court never found the administration coerced social media sites to take content down, only communicated what it believed to be false or content that violated the company’s own policies.

The case has become a flashpoint in the ongoing political debate over censorship online, with Republicans in Congress pointing to it as an example of anti-conservative bias among social media companies.

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