DOJ: Injunction Judge Assigned Himself ‘General Arbiter’ of WH Communications

The efforts by the Republican attorneys general of Louisiana and Missouri to defend the social media injunction against the government “only underscore” the injunction’s many “deficiencies,” said DOJ’s reply brief Tuesday (docket 23-30445) at the 5th U.S. Circuit Court of Appeals in support of reversing the injunction. U.S. District Judge Terry Doughty for Western Louisiana imposed the injunction July 4, temporarily stayed 10 days later by the 5th Circuit pending appeal (see 2307140067), barring dozens of Biden administration officials from conversing with the social media companies about content moderation.

Oral argument on DOJ's appeal will be heard Thursday at 1 p.m. CDT in New Orleans by a three-judge panel of the 5th Circuit. Judges Edith Brown Clement and Jennifer Walker Elrod are President George W. Bush appointees. Judge Don Willett, like Doughty, is an appointee of President Donald Trump.

The GOP AGs, like Doughty in his July 4 order, “fail to identify any concrete and specific threats” by the government “that were directed toward particular actions by social-media companies,” said DOJ’s reply. They instead ask the 5th Circuit “to treat all content moderation by those private entities as government action subject to the First Amendment,” it said. But their argument is “factually and legally baseless,” it said.

The plaintiffs’ theories of Article III standing would install Doughty as “the general arbiter of government interactions with social-media platforms,” said DOJ. That’s a role “beyond the federal courts’ constitutional bounds,” it said. DOJ, in an earlier brief last month, said the injunction effectively installed Doughty as the “superintendent” of White House communications (see 2307260001).

On the merits, the plaintiffs can’t overcome “a basic problem,” said DOJ. The plaintiffs focus on events since President Joe Biden’s 2021 inauguration, but “much of the challenged content moderation by platforms occurred before then,” it said. The plaintiffs “are thus forced to allege that content-moderation actions before 2021 were infected by a congressional pressure campaign,” it said. But their lawsuit isn’t against members of Congress, who in any event would be entitled, just as executive branch officials are, “to consider and discuss legislation concerning social-media companies based on perceived inadequacies in their self-regulation,” it said.

The plaintiffs also refuse to "grapple" with “the legal and practical consequences of their position,” said DOJ. They don’t acknowledge that their “capacious understanding” of state action “would subject a wide range of actions by private companies to First Amendment scrutiny,” it said.

The Republican AGs also dismiss the “separation-of-powers concerns” raised by Doughty’s effort to “to superintend communications” on behalf of the White House, said DOJ. They also try to give the injunction “greater specificity,” largely by urging “implausibly narrow interpretations” of its eight carved-out exemptions, “exacerbating its profound overbreadth problem,” it said. “The preliminary injunction should be reversed.”