• by Wendy Davis  @wendyndavis, July 7, 2023

The Biden administration is asking U.S. District Court Judge Terry Doughty to stay his sweeping July 4 order banning a host of government officials from attempting to suppress posts on social media.

The seven-page injunction is so broad and ambiguous that it could prevent the government from “working with social media companies on initiatives to prevent grave harm to the American people and our democratic processes,” the Department of Justice argues in a motion filed late Thursday.

“The potential breadth of the entities and employees covered by the injunction combined with the injunction’s sweeping substantive scope will chill a wide range of lawful government conduct relating to defendants’ law enforcement responsibilities, obligations to protect the national security, and prerogative to speak on matters of public concern,” the attorneys add. “Accordingly, Defendants are irreparably harmed as long as the injunction remains in effect.”

The order prohibits numerous federal agencies and government officials from “taking any action such as urging, encouraging, pressuring, or inducing in any manner social-media companies to remove, delete, suppress, or reduce posted content protected by the Free Speech Clause of the First Amendment to the United States Constitution.”

The injunction includes specific prohibitions on meeting with social media companies in order to convince them to suppress content protected by the First Amendment, flagging specific posts as problematic, and encouraging tech platforms to change their content-moderation guidelines.

The First Amendment generally protects all lawful speech, including speech that contains incorrect information.

Doughty said in his order that the injunction isn't meant to prevent all contact between the government and social media companies. He specifically said the government can still inform tech companies about certain posts -- including ones involving crime, national security threats and criminal efforts to suppress voting.

The judge also said the injunction doesn't prevent officials from “exercising permissible public government speech promoting government policies or views on matters of public concern.”

The order applies to federal agencies including the Department Health and Human Services, The National Institute of Allergy and Infection Diseases, Centers for Disease Control and Prevention, Census Bureau, Federal Bureau of Investigation, and Department of Justice. It also applies to numerous specific individuals, including Health and Human Services Secretary Xavier Becerra, Surgeon General Vivek Murthy, and Press Secretary Karine Jean-Pierre.

But the order doesn't cover all government agencies. Among the exclusions are the Food and Drug Administration, Treasury Department and Election Assistance Commission.

The Justice Department, which has already filed an appeal with the 5th Circuit Court of Appeals, is now arguing to Doughty that the injunction is too broad, and that some of its exceptions are contradictory. For instance, the carve-out for promoting government policies on matters of public concern is “difficult to reconcile” with the prohibition on encouraging social media companies to moderate content, the Justice Department writes.

The government also says it's unclear who's covered by the injunction -- noting that while Doughty said he was exempting the Food and Drug Administration, that agency is part of Health and Human Services.

The administration is asking Doughty to rule on the request for a stay by Monday.