July 4 Injunction Installed Judge as ‘Superintendent' of White House Communications: DOJ

U.S. District Judge Terry Doughty for Western Louisiana in Monroe erred when he imposed his July 4 injunction barring dozens of Biden administration officials from conversing with social media platforms on content moderation (see 2307050042), said DOJ’s opening brief Tuesday (docket 23-30445) in the 5th U.S. Circuit Court of Appeals in support of the government's motion to continue the stay in the injunction pending appeal.

Doughty, a President Donald Trump appointee, wrongly concluded that the lead plaintiffs, the Republican attorneys general of Missouri and Louisiana, were likely to succeed on the merits, said DOJ's brief. Doughty also abused his discretion “in applying the equitable factors of the preliminary injunction standard,” said the brief.

The government appellants’ opening brief came just a day after DOJ replied to the plaintiffs’ opposition to the stay (see 2307250002). It's emblematic of the expedited briefing schedule that the 5th Circuit imposed to hear the government’s appeal. Along the lines of that expedited schedule, the plaintiffs’ answering brief is due Aug. 4, and DOJ’s reply brief is due Aug. 8, before oral argument takes place just two days later in New Orleans.

One of the central obligations of government leaders “is to protect the public against innumerable threats,” said DOJ’s brief. A key government role “is simply to provide the public with accurate and timely information, to dispel false rumors, and to explain what actions citizens and businesses can and should take to advance the public good,” it said. It’s “critical,” during crises and also in ordinary circumstances, that government leaders “be able to disseminate accurate information and encourage actions that support the public good,” it said.

The government can’t punish people “for expressing different views,” said DOJ’s brief. Nor can it achieve the same objective indirectly, “by threatening the media with punishment if it disseminates those views,” it said. But there’s “a categorical, well-settled distinction between persuasion and coercion,” it said: “The government must be allowed to seek to persuade people of its views, even where those views are the subject of controversy.”

Doughty’s July 4 ruling imposing the injunction “ignored that fundamental distinction,” said DOJ’s brief. He equated the government’s “legitimate efforts” to identify truthful information with “illicit efforts” to silence the voice of opposition, “and equated legitimate efforts at persuasion with illicit efforts to coerce,” it said.

On the basis of those “false equivalencies,” Doughty issued an injunction with “sweeping language” that could be read to prohibit “virtually any government communication directed at social-media platforms regarding content moderation,” said DOJ’s brief. The judge’s effort to tailor the injunction through a series of carve-outs “failed to cure the injunction’s overbreadth and compounded its vagueness,” it said.

The injunction is improper “in virtually every dimension,” said DOJ’s brief. Doughty found Article III jurisdiction based on a theory of state parens patriae (parent of the country) standing that the U.S. Supreme Court “has repeatedly rejected, including as recently as June,” and on past actions by private companies that don’t establish “a concrete prospect of forward-looking injury caused by the government,” it said. On the merits, Doughty compounded his “misunderstanding” of the First Amendment “by badly misconstruing the factual record,” it said.

Doughty’s remedial choices “were equally flawed,” said DOJ’s brief. The injunction forbids conduct “having nothing to do” with the plaintiffs, “in a manner unnecessary to prevent irreparable harm to them,” it said. It also raises “grave” separation-of-powers concerns “by installing a federal court as superintendent of communications” between the executive branch and the public, it said. The injunction is “replete” with ambiguous terms that “lack the specificity required by Federal Rule of Civil Procedure 65(d), and it should be reversed, it said.