In a case one commentator said could have “profound implications for almost every aspect of American life,” the US Supreme Court late last week said it will review a lower court ruling that barred key Biden administration officials from communicating with social media platforms.

In its October 20 ruling, the Supreme Court also temporarily lifted restrictions on the White House’s contact with tech firms by preventing enforcement of the lower court’s injunction, first granted on July 4 by the US District Court for the Western District of Louisiana Monroe Division.

The injunction applied to the White House, the surgeon general, the Centres for Disease Control and Prevention, the FBI and, as of an October 3 ruling by the US Court of Appeals for the 5th Circuit, the Cybersecurity and Infrastructure Security Agency, barring them from communicating with social media companies about “misinformation.”

The court ruled 4-3 in favour of granting the stay and the writ of certiorari.

The ruling pertains to a landmark First Amendment lawsuit brought in May 2022 by the attorneys general of Missouri and Louisiana, alleging Biden officials violated the First Amendment by suppressing speech on social media companies through collusion with the platforms to suppress content on topics such as Covid-19, election integrity, and the Hunter Biden laptop scandal.

The majority decision was unsigned. However, the three dissenting justices – Samuel Alito, Neil Gorsuch and Clarence Thomas — issued a four-page dissent that offered a strong defence of First Amendment free speech rights and opposition toward government censorship of private speech.

The Supreme Court’s October 20 ruling means that the stay preventing the injunction from being enforced will continue until the court hears the case and issues a ruling, which could take place any time before the Supreme Court’s current term ends in June 2024.

California-based attorney Richard Jaffe told The Defender the Supreme Court will not hear the full Missouri et al v. Biden et al lawsuit, but only the preliminary injunction as amended by the 5th Circuit.

He added that Kennedy et al v. Biden et al, a lawsuit making similar First Amendment and censorship claims and which was consolidated with Missouri et al v. Biden et al in July, is not part of the preliminary injunction now being examined by the Supreme Court.

Children’s Health Defence (CHD) is one of the plaintiffs in Kennedy et al v. Biden et al.

The dissenting opinion, authored by Alito, argued that the government’s request for a stay pausing the injunction should not have been granted by the court, noting that the government had not demonstrated “any concrete proof” that “harm is imminent” – a threshold that is required to issue a stay against an injunction.

“Government’s attempts … do not come close to clearing this high bar,” Alito wrote, arguing that the government relied on “a series of hypothetical statements” that “a covered official might want to make in the future” and that “might be chilled.”

“But hypotheticals are just that – speculation that the government ‘may suffer irreparable harm at some point in the future,’ not concrete proof,” he wrote.

The dissent also questioned the tactics used by the government to police online speech.

“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,” Alito wrote. “That is most unfortunate.”

“Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing,” he added.

Jaffe wrote the dissenting justices are “the three most robust First Amendment guardians” on the court.

Describing their dissenting opinion as “a literary appetiser,” he said it “hints at the potential narrative in their future plurality/concurring opinions,” in the event two other justices agree with them and rule for the plaintiffs.

However, Jaffe left open the possibility that the dissenting opinion may alternatively end up forming the basis of a future dissent in a final ruling by the court, “if two of the middle three [justices] join forces with the left, who will surely argue that the government’s role in shielding the public extends to coaxing or outright intimidating social media.”

Legal experts who spoke with The Defender explained the likely reasoning behind the Supreme Court’s ruling. California-based attorney Greg Glaser told The Defender that granting certiorari means the Supreme Court will take the case and then give a detailed written opinion on the merits.

“The Supreme Court will explain how the First Amendment applies to situations where the government coerces or ‘significantly encourages’ social media companies to censor conservative viewpoints,” he said.

The plaintiffs in the lawsuit have argued that the Biden administration waged a “coordinated campaign” to stifle disfavoured views and opinions on social media platforms, including conservative viewpoints, according to Jaffe.

According to NPR, “The case has profound implications for almost every aspect of American life,” in light of “great national security concerns about false information online” related to ongoing wars in the Middle East and Ukraine and “further concerns about misinformation” that could affect the 2024 elections.

The main issue, according to Glaser, is whether the plaintiffs are right that the Biden administration violated the First Amendment by coercing social media companies to censor conservative viewpoints, or whether the Biden administration is right that it was “advocating and defending its own policies.”

“The sad irony is both are true,” Glaser added.

In a statement provided to The Defender, Louisiana Attorney General Jeff Landry said the Supreme Court is “offering an opportunity to present this landmark case and defend the First Amendment at the highest court in the land.”

In the same statement, Louisiana Solicitor General Liz Murrill said the Supreme Court has provided the plaintiffs with “another opportunity to defend the people from this assault on our First Amendment rights” and “brings us one step closer to reestablishing the protections guaranteed to us in the Constitution and under the First Amendment.”

“It also grants us an opportunity to affirm once and for all that the government is not permitted to use the government-speech doctrine to muffle the expression of disfavoured viewpoints,” Murrill said, adding “We hope that the Supreme Court will agree that this gross abuse of power must stop and never happen again.”

CHD President Mary Holland said it’s “good news that the Supreme Court will hear Missouri v. Biden, the most important censorship case in a generation,” but added that “The bad news is that [the stay] allows the federal censors to continue unconstitutional censorship in violation of our First Amendment until the Supreme Court issues its decision, which could be late spring 2024.”

“That the court has agreed to hear Missouri v. Biden underscores the significance of this case,” said Kim Mack Rosenberg, acting general counsel for CHD.

“However, two federal courts already have found that the plaintiffs demonstrated that they are likely to succeed on the merits of their claims that the Biden administration’s coercive censorship actions violate the First Amendment,” she added.

Writing on his blog, Jaffe said that it was unsurprising that the Supreme Court ruled in the manner that it did.

“No surprise here,” he wrote. “The [court], with a flourish of its judicial cape, transformed the stay papers into a petition for certiorari, which it graciously granted. This is turbocharged justice!”

“I was always pretty sure that the Supremes – not even the uber conservatives – were not ever going to let the 5th Circuit judges stop an administration from implementing a national policy based on national public health issues affecting every American,” Jaffe told The Defender. “That was just never going to happen.”

Jaffe explained: “That is why they granted the stay and writ of certiorari [granting review of lower court ruling]. For better or for worse, however divided they may be, all the Supreme Court justices have a clear — and I think unanimous — view of their role in deciding major national policy issues, and there are few more important than the First Amendment issues raised in the Missouri and Kennedy v. Biden case.”

• The Defender report