Democratic AGs: Social Media Injunction on Biden Administration ‘Sweeping,’ ‘Ill-Advised’

The July 4 injunction barring dozens of Biden administration officials from conversing with social media platforms about content moderation (see 2307050042) was “erroneous,” said an amicus brief Friday (docket 23-30445) in the 5th U.S. Circuit Court of Appeals from the Democratic attorneys generation of 20 states, plus the District of Columbia, in support of DOJ’s appeal to reverse the injunction. “In purporting to protect First Amendment values,” U.S. District Judge Terry Doughty for Western Louisiana in Monroe, a President Donald Trump appointee, “significantly restricted the flow of public discourse on vitally important issues,” said the AGs.

DOJ’s 5th Circuit appeal is tracking along a very expedited briefing schedule that will have the lead plaintiffs in the case, the Republican AGs of Louisiana and Missouri, submit their answering brief Friday. DOJ’s reply brief is due Aug. 8. Oral argument is scheduled for two days later in New Orleans. The GOP AGs’ unopposed motion Friday asked the 5th Circuit to expand the time allowed for oral arguments to 30 minutes per side from 20, citing the “complex and important issues” for the court’s consideration, “all within a highly expedited manner.”

The federal government, like the amici states, “has an essential role to play in contributing to the marketplace of ideas,” said the amicus brief from the Democratic AGs. Yet Doughty’s injunction “effectively imposes a gag order on large swaths” of the Biden administration, it said: “This will impoverish, rather than protect, wide open and robust debate on a wide range of matters of public importance.”

Doughty’s “sweeping” and “ill-defined” injunction “undermines the public interest and chills important dialogue between the government and social-media companies,” said the brief. The injunction isn’t premised “on any actual threats by federal actors to compel social-media companies to remove certain content,” it said. Nor does the injunction “prohibit only the making of such threats,” it said. The injunction “bars dozens of federal officials and agencies from engaging in large swaths of communications that are critical to the public interest,” it said.

The injunction’s “negative consequences” aren’t limited to the federal government alone, said the brief. The amici states, too, “routinely engage with social-media companies on content moderation,” it said. They customarily exchange recommendations on best practices “and to report specific content that violates the platforms’ own terms of service without dictating how the platforms should address the content or apply their own content-moderation policies,”

The injunction “sets a harmful precedent,” said the brief. If allowed to stand, it could “chill the ability of state and local governments to productively communicate and share information with social-media companies, it said. The result “would substantially undermine both the platforms’ and the governments’ efforts to ensure that social media is safe and secure for all users,” it said.

The amici states' experience “confirms that maintaining an open line of communication between government and social-media companies on subjects of state expertise is productive, mutually beneficial, and non-coercive,” said the amicus brief. Prominent social media companies, including Meta and Twitter, “have lauded the benefits of information-sharing and discourse,” it said. They also created “specific channels for law enforcement and other public and private stakeholders to report potentially harmful content on their platforms,” it said.

Many of the amici states over the years “have engaged in communication and information-sharing with social-media platforms to address the proliferation of harmful content,” said the amicus brief. The communications amounted to “an open dialogue regarding best practices in content moderation,” it said.

This open dialogue “has grown ever more important" for the safety and mental health of young users "as social-media engagement among children continues to skyrocket,” said the amicus brief. Studies have “repeatedly shown” that increased social media use among adolescents “is correlated with worse mental-health outcomes, including depression, poor body image, and even suicide ideation,” it said.

Those findings are of “particular concern” to the amici states, said the brief. They prompted the states “to engage in discussions with social-media companies about the platforms’ role in mitigating the harmful effects of social media on children,” it said. When 44 states and territories learned in 2021 that Meta was planning to launch a version of Instagram for children younger than 13, they explained their concerns “about the dangers such a platform would create for children,” it said. The “helpful” feedback prompted Meta to postpone the launch, it said.

The amici states “also have a substantial interest in protecting other vulnerable populations from scams and other predatory content online,” said the brief. The states also have a strong interest in “election integrity,” it said. They routinely worked alongside social media companies to ensure the elections the states administer “are secure and that voters are not misled about the integrity of the voting process,” it said.