It’s ‘Undisputed’ That Government Censors Right-Leaning Social Media Content: GOP AGs

In 82 pages of “detailed factual findings,” U.S. District Judge Terry Doughty for Western Louisiana in Monroe found that federal officials “have covertly injected themselves into the content-moderation decisions of all major social-media platforms,” said the Republican attorneys general of Louisiana and Missouri and the individual plaintiffs in their brief Monday (docket 23-30445) at the 5th U.S. Circuit Court of Appeals in opposition to the government’s emergency motion to stay Doughty’s July 4 preliminary injunction. The New Civil Liberties Alliance also signed the brief.

The 5th Circuit, in granting DOJ a temporary stay in the injunction Friday, ordered the government’s appeal deferred to the oral argument merits panel that receives the case. Oral argument on DOJ’s emergency motion is scheduled for Aug. 10 (see 2307170002). Doughty’s injunction blocked dozens of Biden administration officials from conversing with social media companies about content moderation (see 2307060004).

The government’s social media censorship “campaign” targets “specific speakers” who are “especially influential critics” of the administration’s policies, and “those who organize political opposition to them,” said the opposition brief. The campaign also targets “specific viewpoints on hotly disputed issues,” including COVID-19 vaccines, mask mandates and lockdowns and “the security of voting by mail,” it said.

The federal censorship “fundamentally distorts online discourse in America by silencing influential speakers,” rendering entire viewpoints “unspeakable on social media,” said the opposition brief. Especially prone to government censorship are viewpoints that are “disfavored by federal officials,” it said. In “undisputed findings,” Doughty found, “again and again, that federal action causes the censorship of these speakers and viewpoints,” it said.

Doughty’s injunction to halt “arguably” the most “massive attack” against free speech in U.S. history “should not be stayed,” said the opposition brief. The plaintiffs have standing because the defendants’ conduct “devastates their ability to participate in free and open online discourse,” it said.

Federal censorship silences the plaintiffs themselves and dozens of similar speakers on social media to whom the plaintiffs “would otherwise listen and respond,” said the opposition brief. Federal censorship also “squelches” the plaintiff states’ own speech and disrupts their ability “to hear the voices of their own citizens on great social and political issues,” it said.

The government defendants argue that the injunction “will interfere with legitimate forms of government speech,” said the opposition brief. But in the district court, “they spent months attempting to identify such concerns and submitted five declarations detailing such concerns from senior federal officials,” it said. Doughty’s injunction order “carefully addressed these concerns by providing eight specific, comprehensive exclusions to the injunction to allow full latitude for legitimate government speech,” it said.

Instead of relying on those declarations, the government defendants now raise “a tiny handful of new, speculative hypotheticals, none of which poses a legitimate problem of application,” said the opposition brief. “In any balance, the government-induced silencing of millions of American voices on social media overwhelms this tiny handful of chimerical concerns” about the government’s own speech, it said. The emergency motion should be denied, it said.