Texas-based attorney W. Scott McCollough says lawyers in the United States had long expected that a case that seeks to bar the American government from coercing social media platform from censoring disfavoured information would end up in Supreme Court,

McCollough told The Defender, “We all knew it would end up [in the Supreme Court], even on preliminary injunction, regardless of who prevailed in District Court and the Court of Appeals.”

McCollough said, “The issues … are truly important federal questions that must be decided soon” and compelled the Supreme Court to agree to hear the case.

“Timing is very important, given the implications for the 2024 elections in particular and all the societal disruption, division and censorship over the last several years that promise to continue without some judicial resolution,” he said.

“The court finally – and properly – decided it had to deal with it now,” he added.

NPR reported that the Supreme Court will likely hear the case in February or March, although Jaffe, writing on his blog, explained that a decision would likely come later.

“The judicial gears will likely slow the case down, with a decision arriving around June 2024,” he wrote, adding, “Yet, in this grand theatre of law, a surprise act may yet emerge to steal the spotlight. We shall see.”

Jaffe said cases accepted in the early part of the court’s term are usually decided towards the end of the term in June. The court must schedule a full briefing and lateroral arguments, “probably in the first month or three of 2024,” he said.

McCollough noted, however, that by granting both the writ of certiorari and the stay, the Supreme Court opted for a faster route to hear the case than it otherwise might have.

“This means the court decided to immediately start on merits processing without the parties having to go through the normal certiorari process,” he said. “The questions presented in the stay application will be the questions presented for merits briefing.”

These questions include whether the plaintiffs in the lawsuit have legal standing, whether their First Amendment rights were violated and whether “the terms and breadth” of the preliminary injunction are proper.

“What this means from a practical perspective is the court significantly shortened the time it will take to receive merits briefing, obtain oral argument and then decide,” McCollough said.

Children’s Health Defense (CHD) President Mary Holland told The Defender: “The majority of the court’s justices noted that they would examine the questions that the parties raise, which is essentially whether the government may continue to instruct, partner with, threaten and coerce Big Tech to censor alleged ‘misinformation.’”

According to Kim Mack Rosenberg, acting general counsel for CHD, while a “decision on the merits of this case could be several months away,” in the interim, “the administration is not prohibited from continuing to engage in activities that already have been found likely unconstitutional and to develop other means of censorship.”

Notably, CHD and its chairman on leave, Robert F. Kennedy Jr on September 20 filed an amicus brief with the Supreme Court, opposing the pause, days after the stay was first granted, on September 14. The Supreme Court subsequently extended the stay on September 22 and October 13.

Some legal experts told The Defender that even though the injunction barring the Biden administration from communicating with social media platforms about “misinformation” is paused, the proceedings thus far in the case may nevertheless result in the government moderating its efforts to suppress disfavoured speech.

“Technically, the injunction is stayed,” McCollough said. “That is a bad thing since the defendants are not legally prohibited from the activity spelled out in the 5th Circuit’s injunction. But there is a lot of incentive for them to moderate their behaviour, at least somewhat, although I suspect they will still find ways to pressure the platforms.”

“They will just be a lot more careful about leaving the kind of paper trail as exists here,” McCollough added.

Similarly, California-based attorney Greg Glaser told The Defender, “Time will tell what the Biden administration will attempt to censor next, but future censorship is likely to continue backfiring.”

Glaser said: “Americans are talking to one another on multiple platforms simultaneously and abandoning social media companies such as Facebook, who are known for complicity in government censorship. Kennedy v. Biden exposes quite well such government censorship.”

Jaffe said that even though the Supreme Court is only examining the preliminary injunction issued in Missouri v. Biden, which was issued before Kennedy et al v. Biden et al was consolidated with this lawsuit, “the Supreme Court’s decision will likely be dispositive of that case as well.”

Jaffe said that Kennedy et al v. Biden et al is not part of the case on which certiorari has just been granted and that the limited record in that case will not be part of the Supreme Court’s decision.

But since Kennedy et al. v. Biden et al. is now consolidated with Missouri et al v. Biden et al, the decision will be binding on the 5th Circuit and the District Court’s decisions in the consolidated case, according to Jaffe.

McCollough provided further insights as to the implications of the Supreme Court’s Friday ruling on the Kennedy et al v. Biden et al lawsuit.

“The injunction — even as modified by the 5th Circuit — covers and protects the Kennedy plaintiffs,” he said. “I suspect the Kennedy plaintiffs will, as they hinted in note 7 of their September amicus brief, move to intervene as full parties.”

“The Kennedy plaintiffs are both speakers and users and have suffered censorship as such. That provides clear standing,” McCollough added.

Legal experts who spoke with The Defender also shared their perspectives about how the Supreme Court might ultimately rule and the implications of its forthcoming decision.

McCollough discussed the possibility of several “combined outcomes”: “The court could rule that the Biden effort is permissible and platforms cannot be prohibited from voluntarily censoring. It could hold that the Biden effort is not permissible but platforms can voluntarily censor. It could decide the Biden effort is not permissible and a state can prohibit voluntary, private actor viewpoint discrimination.”

McCollough referred to two other cases pending before the Supreme Court during the current term, concerning Texas and Florida state laws which prohibit large social media platforms from censoring users’ content.

“The Florida and Texas cases also address whether states can require full disclosure of the platforms’ ‘content’ rules and their censorship-related activities,” McCollough said.

Jaffe, who will analyse the legal issues at play during a panel on November 5 at the forthcoming CHD conference, also discussed on his blog the rapidly changing landscape of free speech issues that might impact how plaintiffs present their arguments before the Supreme Court.

“I would submit that the world is different from when this case was litigated … Hate speech and intimidation are front and centre. Hopefully, the litigants seeking to uphold the injunction will understand that,” California-based attorney Richard Jaffe wrote.

This might mean “a more narrow approach,” including making “distinctions which might not have been previously necessary to garner the middle three,” he added, referring to the Supreme Court’s three moderate justices.

According to Glaser, the Biden administration’s behaviour has also “effectively morphed” due to society being “now exponentially better informed” such that what the government was calling “misinformation” about “Covid-19, Hunter Biden, and so much more” is now being recognised as “facts that were simply different to the government’s false narrative.”

“This case is an example where the slow wheels of justice are a good thing,” he said, adding, “Ironically, with each passing month the Biden administration itself is exposed as the repeat purveyor of misinformation and disinformation.”

McCollough said: “This [censorship] won’t stop until it is made to stop. Free speech is a pressure release mechanism … The court surely knows it must do something that turns down the fire or allows grievance venting. Otherwise, we face continued strife, the end of this Republic and the elimination of individual liberties, [including] freedom of conscience.”

Along similar lines, Glaser said: “For Americans, free speech is not really a partisan issue. Every reasonable person likes free speech, it’s part of our culture and law. This empowers the Supreme Court to readily decide the case and also to set national precedent and guidance for future cases in this area of social media free speech. Billions of people will be affected worldwide by the ruling.”

• The Defender report