Government Faces 'Irreparable Harm' if Social Media Injunction Isn't Stayed, Says DOJ

The government faces “irreparable harm” with each day a preliminary injunction remains in effect preventing dozens of federal agencies from engaging in “a vast range of lawful and responsible conduct.” So said DOJ’s Thursday evening's memorandum (docket 3:22-cv-01213) in U.S. District Court for Western Louisiana in Monroe in support of the defendants’ motion to stay the injunction, pending appeal to the 5th U.S. Circut Court of Appeals. Judge Terry Doughty, a Donald Trump appointee, imposed the motion in an unusual July 4 ruling (see 2307050042).

If Doughty denies the instant motion to stay the injunction, DOJ requests an administrative stay of the injunction for seven days to allow time for the 5th Circuit to consider an emergency motion to stay and request for an administrative stay, said the memorandum. DOJ asked Doughty for an expedited ruling on the motion by noon CDT Monday. In light of the expedited consideration to the motion, Doughty signed a minute entry Friday giving the plaintiffs until 8 a.m. CDT Monday to file a response. The plaintiffs are the Republican attorneys general of Louisiana and Missouri.

The injunction’s “broad scope and ambiguous terms (including a lack of clarity with respect to what the injunction does not prohibit) may be read to prevent the Government from engaging in a vast range of lawful and responsible conduct -- including speaking on matters of public concern and working with social media companies on initiatives to prevent grave harm to the American people and our democratic processes,” said the memorandum.

The “immediate and ongoing harms” to the government “outweigh any risk of injury” to plaintiffs if a stay is granted; a stay is “in the public interest,” the memorandum said. Defendants showed “a substantial case on the merits” on plaintiffs’ lack of Article III standing and “failure to present evidence substantiating their First Amendment claims,” it said. The court should “exercise its discretion to temporarily stay the preliminary injunction during the pendency of Defendants’ Fifth Circuit appeal.”

A court that has ruled for one party on the merits isn't required to reverse that position in order to grant a stay to the opposing party, said the memorandum. “Instead, when ‘a serious legal question is involved’ and ‘the balance of the equities weighs heavily in favor of granting the stay,’ a party seeking a stay pending appeal ‘need only present a substantial case on the merits,’” it said, citing Arnold v. Garlock. To determine whether to grant a stay to a pending appeal, the court considers whether the stay applicant made a strong showing he's likely to succeed on the merits, whether he will be irreparably injured without a stay, whether the stay will substantially injure the other party, and “where the public interest lies,” it said.

A stay pending appeal “is appropriate where an injunction ‘is not merely an erroneous adjudication of a lawsuit between private litigants, but an improper intrusion by a federal court into the workings of a coordinated branch of the Government,’” said the memorandum, citing INS v. Legalization Assistant Project.

The court’s ruling prohibiting defendants from “taking any action such as urging, encouraging, pressuring, or inducing in any matter social-media companies" to moderate “content protected by the Free Speech Clause of the First Amendment,” doesn’t clarify what conduct is proscribed, said the memorandum. The court’s exemption to allow the government to exercise “permissible public government speech…is at odds” with its conclusion that public statements by the White House press secretary and surgeon general “likely violate the First Amendment and is difficult to reconcile with the injunction’s prohibition against ‘taking any action such as urging, encouraging, pressuring, or inducing’ social media companies to moderate content on their platforms,” it said.

The injunction isn’t clear on which entities and individuals are covered, said the memorandum. The DOJ has many subcomponents whose actions plaintiffs don't challenge, it said. “By its terms, the injunction applies to all ‘agents, officers, employees, [and] contractors’” of the DOJ, “thus potentially sweeping in every employee of every sub-component of the Department.” The injunction purports not to enjoin the Food and Drug Administration, but it enjoins the Department of Health and Human Services, “of which FDA is a part," said the memorandum.

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

A stay pending appeal would not “substantially injure” plaintiffs, said the memorandum, noting the court didn’t rule on plaintiffs’ motion for preliminary injunction until over a year after it was filed. In their briefing on the preliminary injunction motion, the AGs “failed to identify any irreparable harm occurring during the pendency of that motion” and didn’t identify any “irreparable harm” that’s likely to occur without a preliminary injunction, it said. Instead, their assertions of harm center “almost entirely on conduct that is more than one year old,” it said.

Defendants’ appeal will raise “serious legal question[s]” about Article III standing and the merits of the AGs’ First Amendment claims, said the memorandum, citing Arnold. The court decided Missouri and Louisiana have standing under a parens patriae theory, “despite the Supreme Court’s clear statement” that a state doesn’t have standing as parens patriae to bring an action against the federal government, it said, citing Alfred L. Snapp & Son v. Puerto Rico.