Missouri v. Biden, 20A243. Order on application for stay, October 20, 2023.

Justices Alito, Gorsuch, and Thomas dissent to suspension of the effect of the injunction Issued by the trial court without full review of the record, which may not happen until late spring 2024. 

“Government censorship of private speech is antithetical to our democratic form of government and therefore today’s decision is highly disturbing.” Dissent, slip op. at 2.

There is no demonstration that there will be irreparable harm to the federal government if a stay is not granted, the dissent observes. The government offers hypotheticals but speculation cannot establish irreparable harm.  Even if speculation could establish irreparable harm, the hypotheticals would not be prohibited by the injunction.  The president is not bound;officials may speak. The injunction runs only to coercion and control of the tech platforms.

There has been no proof of irreparable harm, but the majority stays the injunction, which allows the conduct complained of and found likely to violate the First Amendment to continue. The lower court made detailed findings of fact not to be overturned lightly, but the majority has suspended relief provided below without a word of explanation. 

Should circumstances warrant.  The dissenting judges would deny the proffered application for a stay, but permit application in due course of the proceedings if needed.

Order 10/20/23