DOJ Files for Emergency Stay of Social Media Injunction, Hints at SCOTUS Review

Saying the First Amendment free speech rights of the plaintiffs in the lawsuit against dozens of Biden defendant administration officials “by far” outweigh the defendants’ "interests," U.S. District Judge Terry Doughty for Western Louisiana in Monroe denied DOJ’s motion to stay his July 4 injunction or alternatively for a seven-day administrative stay. The injunction bars the officials from "engaging in any communication of any kind” with social-media companies for the purpose of suppressing right-leaning content that constitutes protected free speech.

DOJ, within hours of Doughty’s denial, filed an emergency motion at the 5th U.S. Circuit Court of Appeals (docket 23-30445) under Circuit Rule 27.3 for a stay pending appeal in which the government appeared poised to take the case to the Supreme Court. The 5th Circuit, “at a minimum,” should stay the injunction “to the extent it extends beyond actions specifically targeting content posted by plaintiffs,” said the motion.

The 5th Circuit should also grant an immediate administrative stay “to permit the orderly briefing and disposition of this motion,” said DOJ. If the 5th Circuit declines to grant a longer stay, it should at a minimum stay the injunction for 10 days “to permit the Supreme Court to consider an application for a stay, should the Solicitor General elect to file one,” it said.

Even when a district court has concluded that plaintiffs are likely to establish a constitutional violation, it can’t enjoin governmental conduct “without considering the injunction’s countervailing harms to the public interest,” said DOJ. Doughty abused his discretion "by failing to conduct that balancing,” it said. Doughty’s court “would equally have abused its discretion had it determined that the profound harms this injunction will cause to the government and the public interest would be outweighed by its benefit to plaintiffs,” it said.

Doughty, a President Donald Trump appointee, disagrees with the defendants’ assertions they will be irreparably injured absent a stay, and that the balance of the equities weighs heavily in their favor of granting a stay, said his ruling Monday (docket 3:22-cv-01213). The plaintiffs showed, absent the injunction, that there’s “a substantial risk that future harm is likely to occur and that they are likely to satisfy the requirements of Article III standing,” it said.

The defendants wrongly argue the injunction may be interpreted to prevent them “from engaging in a vast range of lawful conduct,” said Doughty’s ruling. The injunction prohibits only what the defendants “have no right to do,” it said. That includes “urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech on social-media platforms.” His order Monday amended his July 4 judgment to define protected free speech as that which is protected by the First Amendment “in accordance with the jurisprudence” of the Supreme Court. The July 4 ruling had suggested wider federal court jurisdiction.

The defendants asked the court to grant them relief to an injunction “that only bars illegal conduct,” said Doughty’s order. The “only effect” of staying the injunction would be to free the defendants “to urge, encourage, pressure, or induce the removal, deletion, suppression, or reduction of content containing protected free speech on social-media platforms,” it said.

The injunction also has eight “exceptions” listing actions that “are NOT prohibited,” said Doughty’s ruling. The defendants “cite no specific action that would be prohibited” by the injunction “that would provide grave harm to the American people or over democratic processes,” it said. “Every one” of their concerns, as submitted in five declarations in support of the motion to stay, was addressed in the injunction exceptions, it said.

Case law shows an enjoined party “must identify a specific concern that the injunction will prohibit,” but the defendants “failed to do so,” said Doughty’s order. The defendants wouldn’t be irreparably harmed by an injunction, and the balance of equities and harm weighs in favor of the plaintiffs, not the defendants, it said.

The defendants also wrongly argue that the injunction “is sweeping in scope and vague in its terms,” said Doughty’s order. The Federal Rules of Civil Procedure require an injunction to describe “in reasonable detail the act or acts restrained or required,” it said. “An ordinary person reading the Court’s order must be able to ascertain from the document itself exactly what conduct is proscribed or prohibited.”

Doughty’s order said he found unpersuasive the defendants’ arguments that both the prohibited conduct and the conduct that’s not prohibited is vague. The defendants argue the definition of “protected free speech” is vague because it refers to jurisprudence of the Supreme Court, the appellate courts and the district courts, it said. They question whether an agency official would be required to research the laws of every federal court to determine what is protected free speech, it said. That was his rationale, it said, for amending the language of the injunction to refer only to SCOTUS jurisprudence.

Although general “obey the law” injunctions “are normally too vague,” language in an injunction to prohibit future violations of a statute will be upheld when it involves the type of acts the defendants allegedly committed, said Doughty’s order. The injunction at issue prohibits the defendants from taking the described actions with social-media companies to restrict protected free speech, newly defined in his amendment by SCOTUS jurisprudence, it said. The reference to SCOTUS jurisprudence “is not vague,” it said. “Defendant officials can be and should be trained to recognize what speech is protected and what speech is not prior to working with social-media companies to suppress or delete postings,” it said.

It’s clear the injunction doesn’t prohibit “government speech,” said Doughty’s order. It was rather “the use of government agencies and employees to coerce and/or significantly encourage social-media platforms to suppress free speech on their platforms” that violated the First Amendment, it said. The government speech exception in the injunction “is not ambiguous or vague,” it said.

The plaintiffs are likely to prove all the enjoined defendants coerced or “significantly encouraged” social media companies to suppress Americans’ social media posts that were anti-vaccine and other content not subject to any exception to the First Amendment, said Doughty’s order. “These items are protected free speech and were seemingly censored because of the viewpoints they expressed,” it said. “Viewpoint discrimination is subject to strict scrutiny,” it said.

Though the injunction involves numerous agencies, it’s “not as broad as it appears,” said Doughty’s order. It prohibits only conduct that the defendants “have no legal right” to engage in, it said.