A federal judge on July 10 denied the Department of Justice's (DOJ) request to stay a ruling that places limits on government communications with social media firms, rejecting the White House's argument that such an order could put a damper on law enforcement activity online.
U.S. District Judge Terry A. Doughty wrote that his order last week had created exceptions for communications for cyberattacks, election interference, and national security threats. The DOJ and Biden administration, he wrote, didn't provide any specific examples that "would provide grave harm to the American people or our democratic processes.”
“Although this Preliminary Injunction involves numerous agencies, it is not as broad as it appears,” Mr. Doughty wrote on July 10. “It only prohibits something the Defendants have no legal right to do—contacting social media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner, the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.”
The judge further wrote that Republican attorneys general who brought the suit are most likely going to prevail in proving that federal agencies and officials "significantly encouraged," "coerced," or "jointly participated" in allegedly suppressing social media posts that included information critical of COVID-19 vaccines or questioned the outcome of the 2020 presidential election.
In response, lawyers for the Biden administration's DOJ filed an emergency stay of the injunction at the 5th U.S. District Court of Appeals. They argued that Mr. Doughty's ruling was too vague and broad.
“The district court identified no evidence suggesting that a threat accompanied any request for the removal of content. Indeed, the order denying the stay—presumably highlighting the ostensibly strongest evidence—referred to ‘a series of public media statements,’” the administration wrote on July 10.
It came as the attorneys general for Missouri and Louisiana have submitted a petition to oppose the Biden administration's motion to stay an injunction against its efforts allowing it to contact social media firms about a range of online content, including its efforts to flag so-called misinformation.
"Evidence in this case overwhelmingly shows that the way the Government supposedly 'prevent[s] grave harm to the American people and our democratic processes' is to pressure and induce social-media platforms to censor disfavored viewpoints on COVID-19, elections, and other core political speech," they wrote on July 9.
"In the end, their position is fundamentally defiant toward the Court’s judgment. It demonstrates that the Government will continue violating First Amendment rights by censoring core political speech on social media as soon as it can get away with it. The motion to stay should be denied."
Mr. Doughty ruled on July 4 that the Biden administration must cease contacting social media companies about a broad range of online content, including the administration's efforts to flag alleged misinformation. The judge said that some of the administration’s past communications with social media companies violated the First Amendment and that during the pandemic, the government assumed a role similar to that of "an Orwellian Ministry of Truth."
A Trump-appointed judge for the Western District of Louisiana, Mr. Doughty wrote on July 4 that the Cybersecurity and Infrastructure Security Agency, the Department of Homeland Security, the FBI, the Department of Justice, and the Centers for Disease Control and Prevention can't take a range of actions targeting social media posts, companies, and users.
Several officials are specifically named in the order, including Xavier Becerra, Secretary of Health and Human Services; Dr. Hugh Auchincloss, director of the National Institute of Allergy and Infectious Diseases; Surgeon General Vivek H. Murthy; and White House press secretary Karine Jean-Pierre.
Some of the social media companies that were included in the lawsuit are Twitter, Facebook, YouTube, WhatsApp, TikTok, and WeChat, the last two of which are linked to the Chinese Communist Party. The GOP attorneys general brought their lawsuit against the administration in 2022, accusing the government of trying to censor conservative viewpoints.
The ruling marked a win for Republicans, who sued the Biden administration, saying it was using the COVID-19 pandemic and the threat of alleged misinformation as an excuse to target views that went outside the mainstream narrative.
“If you look at the opinion that the judge lays out, he takes from our argument that this is basically one of the most massive undertakings of the federal government to limit American speech in the history of our country," Mr. Landry, a Republican, said. "The things that we uncovered, in this case, should be ... shocking, appalling, and concerning for all Americans.”
Last week, the DOJ filed an appeal of the ruling and sought to lift the injunction in a filing made to the 5th U.S. Circuit Court of Appeals. U.S. officials have previously claimed they were aiming to tamp down alleged misinformation about COVID-19 vaccines to curb preventable deaths, which has long been decried by free speech advocates, conservatives, and doctors who promote alternative therapies for COVID-19.
Ms. Jean-Pierre told reporters on July 5 that the Biden administration "certainly disagree[s] with this decision” and will “continue to promote responsible actions to protect public health, safety, and security when confronted by challenges like a deadly pandemic and foreign attacks on our election.”
“Our view remains that social media platforms have a critical responsibility to take action or to take account of the effects of their platforms are having to the American people but make independent choices about the information they present. They are a private, as you know, entity, and it is their responsibility to—you know, to act accordingly. And so, we’re going to continue to be responsible in that way."