States Can’t Show ‘Irreparable Injury’ From Social Media Censorship, Says DOJ

The Republican attorneys general of Louisiana and Missouri, plus the five individual co-plaintiffs in their social media complaint against the Biden administration, “would be entitled to a preliminary injunction” if they could demonstrate that a government threat directed at conduct by social media companies caused them “irreparable injury,” said DOJ attorney Daniel Tenny in 5th U.S. Circuit Court of Appeals oral argument Thursday. “They have not made any such showing, despite months of discovery,” said Tenny.

DOJ's appeal (docket 23-30445) asks the 5th Circuit to reverse the injunction imposed July 4 by U.S. District Judge Terry Doughty for Western Louisiana in Monroe, currently stayed pending the 5th Circuit appeal, that bars dozens of Biden administration officials from conversing with social media companies about content moderation.

Doughty, despite no showing of injury, nevertheless imposed the injunction, “and that was erroneous,” said Tenny. Doughty’s injunction “exceeded the bounds of a concrete case or controversy under Article III that impugned government discussion of issues of public concern,” he said. The injunction “cannot be reconciled with principles of equity, and cannot be reconciled with the requirements of Rule 65" on the specificity of injunctions, he said.

If there were a natural disaster, accompanied by “untrue statements” about that disaster on social media “that were damaging to the public interest,” the government would be “powerless,” under the injunction, “to discourage social media companies from further disseminating those incorrect statements,” said Tenny. Asked by Circuit Judge Jennifer Walker Elrod, a President George W. Bush appointee, why examples like that wouldn’t be covered by the eight exceptions Doughty’s injunction carved out for proper government conduct, Tenny responded that the plaintiffs are on record as asserting that such government conduct wouldn’t be exempt. The exceptions “are very unclear,” he said.

The government’s problems with the injunction are “more fundamental” than the injunction’s breadth and vagueness, said Tenny. “The reason the district court had so much difficulty crafting an injunction is that the district court didn’t actually identify specific conduct of the government that would properly be enjoined,” he said. It took a “broad-brush approach, finding all sorts of things that the government did that it didn’t like,” he said.

The plaintiffs’ attorney, John Sauer, of the James Otis Law Group in St. Louis, said the government’s coercive conduct to censor social media speech was akin to the White House calling Amazon and Barnes & Noble urging them to partner on a program to burn books critical of the Biden administration’s policies. “That’s exactly what you’re seeing in the record here,” said Sauer. After months of “public threats,” combined with “private pressure” from the White House, “you see these platforms just giving in,” he said.

There was a finding in Doughty’s injunction decision that the states are facing “the imminent threat of ongoing future censorship,” said Sauer. “Based on the evidence, that’s not a clearly erroneous finding,” he said. “Governmental inference has caused this censorship,” he said. “There are no platforms that are defendants in this case. We haven’t challenged what the platforms are able to do independently. Our argument is that when the platforms make decisions, it has to be relieved from the bulk of federal pressure and federal coercion.”

The “notion” that social media censorship of COVID-19 content is over is “totally unsupportable,” said Sauer. “Two weeks ago, I gave a talk about this very case,” criticizing the federal government’s censorship, he said. “It was taken down the next day by YouTube,” he said. “I was censored as a lawyer for the Louisiana attorney general,” he said. “Do not tell me that Louisiana doesn’t face ongoing censorship injuries.”