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Government Appeals Social Media Ban To ... UGHHH, The Fifth Circuit

YOU get a prior restraint! And YOU get a prior restraint!

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Afraid african woman hiding face with hands peeping through fingersOn July 4, Judge Terry Doughty of the Western District of Louisiana celebrated America’s birthday by taking a buzzsaw to the First Amendment. In a sweeping order, he banned most of the Biden administration from engaging with private 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 case was brought by several anti-vaxx and conservative media figures whose posts had been removed in 2020 and 2021 from social media, as well as by the states of Louisiana and Missouri. The theory was that the the government leaned on the platforms to censor the plaintiffs, thus transforming Twitter, Facebook, and YouTube into government actors capable of violating the First Amendment. Donald Trump sued the three platforms on the same theory, arguing that Rep. Adam Schiff’s “threats” to revoke Section 230 of the Communications Decency Act, which immunizes websites for user-generated content, conscripted the sites to suspend Trump’s accounts.

If you disregard the fact that Republicans, including Trump himself, have been the loudest voices in favor of 230 repeal, that theory made at least marginal sense. If Adam Schiff had threatened to repeal the law (he didn’t), he was at least part of the government body which could do it — unlike the CDC, DHS, and Cybersecurity and Infrastructure Security Agency, all of which are constrained by Doughty’s order. But in any event, this legal theory has been rejected by every court that encountered it, although most of those cases were in the Ninth Circuit, since the tech platforms’ terms of service require all litigation to take place in California.

These plaintiffs got around that by suing the Biden administration itself, which allowed them to file in the Western District of Louisiana, a more hospitable venue for their fakakta claims. And indeed, that gamble paid off bigtime, when they landed on the docket of Judge Doughty, one of the Trumpiest Trumpers on the federal bench.

Doughty bought the plaintiffs’ theory wholesale, and after granting them six extensions of time for discovery, finally granted “emergency” injunctive relief more than a year after the case was filed. So the plaintiffs can spew coronavirus and election misinformation online to their hearts’ content. In 2023.

After Judge Doughty denied the motion to stay his order pending appeal, reasoning that “Violation of a First Amendment Constitutional right, even for a short period of time, is always irreparable injury,” the government appealed to the Fifth Circuit.

Knowing their audience, the appellate attorneys at the DOJ’s Civil Division avoided inflammatory language, even as they accused Judge Doughty of abusing his discretion with the sweeping injunction. They cite to last month’s Supreme Court decision on the Indian Child Welfare Act written by Justice Barrett affirming the Fifth Circuit’s holding that states lack parens patriae standing to bring actions against the federal government. They point out that there is no evidence that these plaintiffs are likely to be harmed in the absence of an injunction, since the platforms have all suspended their coronavirus moderation policies, and it’s not an election year. And they argue that no First Amendment violation ever took place, pointing out that no other court which considered the issue has ever found that flagging misinformation is coercive.

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But most of all, they claim that the trial judge’s order is too vague to offer any meaningful guidance on how to comply:

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? May they urge the public to trust neither the story nor the platforms that disseminate it? May they answer unsolicited questions from platforms about whether the story is false if the platforms’ policies call for the removal of falsehoods? No plausible interpretation of the First Amendment would prevent the government from taking such actions, but the injunction could be read to do so.

Later the brief wonders if the government would be in contempt of Judge Doughty’s ruling if the CDC flagged a social media post that falsely claimed the measles vaccine causes cancer; or even if it answered a query from the site itself on that topic.

“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 DOJ writes, warning that “It raises grave separation-of-powers concerns.”

The government requests an immediate stay pending appeal, or, at the very least, a ten-day injunction to allow it to appeal to the Supreme Court.

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This being the Fifth Circuit, we’ll just have to hold our breath and wait to see whether the panel is horrifying, or merely very, very bad.

Missouri v. Biden [Fifth Circuit Docket, via Court Listener]

Missouri v. Biden [Trial Docket, via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

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