• by Wendy Davis  @wendyndavis, July 14, 2023

A three-judge appellate panel on Friday granted the Biden administration's request to temporarily lift an injunction that would have prevented government officials from urging social media platforms to suppress misinformation.

The “temporary administrative stay,” issued by the 5th Circuit Court of Appeals, was issued on an emergency basis, and could remain in effect until the court holds a full hearing on the injunction.

The appeals court's move comes 10 days after U.S. District court Judge Terry Doughty in Monroe, Louisiana banned numerous federal agencies and personnel from “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 First Amendment generally protects all lawful speech, including speech that's inaccurate.

Doughty's order includes specific prohibitions on meeting with social media companies in order to convince them to suppress content protected by free speech principles, flagging specific posts as problematic, or encouraging tech platforms to change their content-moderation guidelines.

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 evidence about the government's efforts to prevent the spread of some content “depicts an almost dystopian scenario.”

“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,'” he wrote.

He 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.

When Doughty issued the injunction, he said it wouldn't stop the government from informing tech companies about posts involving crime, national security threats, or criminal efforts to suppress voting. The order 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 injunction 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. The injunction also covers specific individuals, including Health and Human Services Secretary Xavier Becerra, Surgeon General Vivek Murthy, and Press Secretary Karine Jean-Pierre.

On July10, the Biden administration asked the 5th Circuit to lift the order, arguing it was 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 wrote 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 added: “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 administration also said it's likely to prevail on appeal, arguing that merely social media companies to take down posts doesn't violate the First Amendment, unless the government also threatens the companies with sanctions for failing to comply.

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