Social Media Injunction Rests on ‘Erroneous Conception’ of First Amendment, Says DOJ

One of the “central prerogatives” of the president and executive branch officials is to speak to members of the U.S. public, including American companies, “about how they can help mitigate threats,” said DOJ’s emergency motion Monday (docket 23-30445) at the 5th U.S. Circuit Court of Appeals to stay the preliminary injunction that bars Biden administration officials from conversing with social media companies for the purposes of moderating content (see 2307100045). The plaintiffs, including the Republican attorneys general of Louisiana and Missouri, oppose the emergency motion, said DOJ.

The emergency measure came hours after U.S. District Judge Terry Doughty for Western Louisiana in Monroe, a President Donald Trump appointee, denied DOJ’s motion to stay the injunction he imposed July 4. DOJ's emergency motion seeks a stay pending the 5th Circuit appeal of the injunction. It further seeks an immediate administrative stay “to permit the orderly resolution of this motion,” and “in any event” requests relief by July 24, it said. 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 if the Solicitor General opts to file one, it said.

Presidents and other officials “have long exercised the power of persuasion to advance their vision of the public good,” said DOJ’s emergency motion. Though the government can’t coerce private parties “to act on its behalf to achieve indirectly what it could not do directly,” courts set a “high threshold for finding such coercion to give the government sufficient latitude” to advocate and defend its own policies, it said.

Doughty issued a “universal injunction with sweeping language” that could be interpreted to prohibit “virtually any government communication directed at social-media platforms regarding content moderation,” said the emergency motion. Doughty’s belief the injunction “forbids only unconstitutional conduct, while protecting the government’s lawful prerogatives, rested on a fundamentally erroneous conception of the First Amendment,” it said. The judge’s effort to tailor the injunction through a series of carve-outs -- Doughty called them exceptions -- “cured neither the injunction’s overbreadth nor its vagueness,” it said.

Take the example of the injunction’s prohibition against “urging, encouraging, pressuring, or inducing” social-media platforms “in any manner” to moderate their content, said the emergency motion. “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?” it asked. “No plausible interpretation of the First Amendment would prevent the government from taking such actions, but the injunction could be read to do so.”

It's uncertain how the injunction’s prohibitions “might apply to law-enforcement officials, who routinely notify social-media companies of threats or other criminal activity on their platforms,” said the emergency motion. The injunction says the government may inform social-media companies of postings involving criminal activity or criminal conspiracies, it said: “But what if, in an investigation’s early stages, officials lack certainty whether a post rises to the level of criminal activity?”

Consider that a White House press secretary, after a natural disaster, might issue a statement urging social-media platforms to act responsibly by disseminating only accurate information about the disaster because misinformation circulating online could impede relief and response efforts, said the emergency motion. It’s unclear whether that statement would be prohibited under the injunction, or if it falls within the allowance for “permissible public government speech promoting government policies or views on matters of public concern,” it said.

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, said the emergency motion. That raises “grave separation-of-powers concerns,” it said.

The injunction is fraught with “numerous legal errors,” said the emergency motion. Doughty adopted a theory of state parens patriae (parent of the nation) standing that the U.S. Supreme Court has repeatedly rejected, “including as recently as last month,” it said. Doughty’s conclusion that the individual plaintiffs have standing “rests on a handful of past episodes of content moderation by private actors, without any showing that any government action will cause future harm to plaintiffs,” it said.

Doughty’s merits analysis “reflects an insupportably broad view of what interactions can make the government responsible for private parties’ actions,” said the emergency motion. His injunction “vastly exceeds” his “equitable powers,” it said. It forbids conduct “having nothing to do” with the plaintiffs, it said. It also can’t be regarded “as necessary to prevent irreparable harm,” it said. The injunction also lacks “the requisite specificity,” and it will “significantly and irreparably harm the government and the public,” it said. The 5th Circuit should stay it, said DOJ.