Social Media Injunction Is ‘Unconstitutional Prior Restraint,’ Say Law Groups

U.S. District Judge Terry Doughty’s July 4 injunction barring dozens of Biden administration officials from conversing with social media companies about content moderation is an “unconstitutional prior restraint” on the rights of organizations to speak “freely and petition the government for a redress of grievances,” said an amicus brief Friday (docket 23-30445). Filed at the 5th U.S. Circuit Court of Appeals in support of the government’s efforts to vacate the injunction, the brief was submitted by the Lawyers’ Committee for Civil Rights Under Law, the Brennan Center for Justice at New York University School of Law and Common Cause.

Disinformation “is a major threat to the fabric of democracy,” said the brief. Disinformation “can be used to deceive or intimidate voters into not voting, generate violent hostility toward election workers, and undermine trust in election outcomes,” it said. Some forms of disinformation “are illegal and can be litigated,” it said. But often litigation “is infeasible due to the scale of disinformation, difficulty of identifying perpetrators, and limited resources of prosecutors and civil society,” it said. It’s also often “too slow to address exigent circumstances,” it said.

Disinformation at other times “may not be illegal but is nonetheless harmful,” said the brief. Social media companies with content policies that prohibit disinformation “therefore play a vital role in preserving free and fair elections,” it said. Government agencies and civil society “can support those efforts by sharing information on emerging threats and vulnerable communities,” it said.

Despite not being parties to the case, the injunction appears to significantly undermine amici’s and an undefined but large “number of other groups’ right to communicate with federal, state, and local officials about online disinformation that threatens the communities they serve,” said the brief. Even if the government defendants listened to amici, “their inability to respond would vitiate amici’s right to seek redress based on the content of the grievance being voiced,” it said.

The injunction is “an unlawful infringement of that right,” said the brief. It’s a content-based speech and petition restriction “that fails strict scrutiny,” it said. The injunction also “contravenes” Federal Rule of Civil Procedure 65. If affirmed, it would “substantially undermine the ability of amici to advocate for and protect the voting rights of all Americans,” it said.

Rule 65(d)(1) “commands” that a preliminary injunction order state its terms specifically and describe in reasonable detail the conduct to be enjoined, said the brief. The 5th Circuit has cautioned against injunctions containing broad generalities rather than describing enjoined conduct in sufficient detail, it said. The injunction violates both Rule 65 and “the prohibition on overbroad injunctions,” it said.

An injunction is sufficiently defined where an ordinary person reading the court’s order should be able to ascertain from the document itself exactly what conduct is proscribed, said the brief. Doughty’s injunction “fails this test” because it leaves key terms “undefined,” it said. His injunction “requires amici to guess the proscribed conduct,” and its eight “confusing and contradictory carveouts” for what constitute acceptable government behavior “create additional ambiguity,” it said.