• by Wendy Davis  @wendyndavis, September 19, 2023

Ohio Attorney General Dave Yost is urging the Supreme Court to uphold an injunction that restricts some federal officials' ability to communicate with social media platforms regarding their editorial decisions.

The injunction, issued earlier this month by the 5th Circuit Court of Appeals, was temporarily stayed by Justice Samuel Alito. That stay will expire September 22, unless extended by the court.

In a friend-of-the-court brief filed Tuesday, Yost claims that continuing to stay the order “would send a damaging message.”

He writes that a stay “would empower the government to resume censoring -- or, at minimum, encouraging the censoring -- of speech on matters of immense public import.”

The 5th Circuit's injunction prohibits certain officials from the White House, Surgeon General's office, Federal Bureau of Investigation and Centers for Disease Control from attempting to “coerce or significantly encourage a platform’s content-moderation decisions.”

The order came in a lawsuit brought last year by attorneys general in Louisiana and Missouri, as well as several individuals. They claimed the government violated the First Amendment by coercing social media platforms into removing posts relating to COVID-19 policies, vaccines, the 2020 election and other matters.

U.S. District Court Judge Terry Doughty in Monroe, Louisiana, sided with the plaintiffs. On July 4, he issued an injunction prohibiting a broad range of federal agencies and officials from attempting to persuade social-media platforms to remove posts that are protected by the First Amendment.

That order included a provision prohibiting officials from “taking any action such as urging, encouraging, pressuring, or inducing in any manner social-media companies to remove, delete, suppress, or reduce” lawful content.

The Biden administration appealed to the 5th Circuit, which modified Doughty's order. That court's injunction prohibits some government officials from attempting to “coerce” or “significantly” encourage platforms' decisions about content moderation, but doesn't include language that would restrict the government from "urging, encouraging, pressuring, or inducing," decisions.

Last week, the Biden administration asked the Supreme Court to block the 5th Circuit's injunction, arguing that the order wrongly limits the government's ability to influence companies on matters of public importance.

“A central dimension of presidential power is the use of the Office’s bully pulpit to seek to persuade Americans -- and American companies -- to act in ways that the President believes would advance the public interest,” the Justice Department wrote.

The Biden administration is expected to file additional arguments Wednesday.