• by Wendy Davis  @wendyndavis, July 10, 2023

The Biden administration on Monday asked the 5th Circuit Court of Appeals to lift an injunction banning many federal agencies and officials from encouraging social media platforms to suppress posts by users.

The injunction, issued July 4, “could be read to prohibit (among other things) virtually any government communication directed at social-media platforms regarding content moderation,” the Department of Justice wrote in its request for a stay.

The motion came the same day that U.S. District court Judge Terry Doughty in Monroe, Louisiana rejected a request for a stay.

Doughty's order prohibits numerous federal agencies and personnel 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 First Amendment.

The order 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's inaccurate.

When Doughty issued the injunction, he said it wouldn't stop the government from informing tech companies about posts involving crime, national security threats and criminal efforts to suppress voting. It also, according to Doughty, doesn't prohibit 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 of 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 the Department of Justice. It excludes certain other agencies, including the Food and Drug Administration, Treasury Department and Election Assistance Commission.

Doughty's order also applies to specific individuals, including Health and Human Services Secretary Xavier Becerra, Surgeon General Vivek Murthy, and Press Secretary Karine Jean-Pierre.

The judge issued the injunction in response to a lawsuit brought by attorneys general in Louisiana and Missouri, and several individuals who said their posts relating to COVID-19 policies and vaccines were suppressed. The complaint included a claim that the government violated the First Amendment by pressuring social platforms "to censor disfavored speakers and viewpoints by using threats of adverse government action."

Doughty said in an opinion accompanying the injunction that the evidence about the government's efforts to prevent the spread of some content online “depicts an almost dystopian scenario.”

He wrote: “During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian 'Ministry of Truth.'”

Doughty added that posts opposing COVID-19 vaccines, masking requirements, lockdowns and the validity of the 2020 election were among the content that was suppressed on social media.

The Justice Department argues the injunction is so broad and vague that it could affect efforts to debunk false stories, or provide information to the public after natural disasters.

“Consider, for example, the injunction’s prohibition against 'urging, encouraging, pressuring, or inducing' social-media platforms 'in any manner' to moderate their content,” the Justice Department writes in its petition to the 5th Circuit. “May federal officials respond to a false story on influential social-media accounts with a public statement, or a statement to the platforms hosting the accounts, refuting the story?”

The government adds: “No plausible interpretation of the First Amendment would prevent the government from taking such actions, but the injunction could be read to do so.”

The Justice Department also discusses a scenario where, after a natural disaster, a White House Press Secretary urges tech platforms “to act responsibly” by spreading only accurate information.

“The injunction threatens to chill this wholly lawful conduct, and to place the judiciary in the untenable position of superintending the executive branch’s communications,” the government writes.

The administration adds that it will likely prevail on appeal, arguing that asking social media companies to take down posts doesn't violate the First Amendment, unless the government is also threatening the companies with sanctions for failing to comply.

“The district court identified no evidence suggesting that a threat accompanied any request for the removal of content,” the Justice Department writes. “Nor does the record suggest that the platforms felt they had no choice but to comply with all governmental requests.”