DOJ Asks 5th Circuit to Stay Social Media Injunction, Pending Issuance of Its Mandate

DOJ, in an emergency motion Monday, asked the 5th U.S. Circuit Court of Appeals for a partial stay of the social media preliminary injunction entered July 4 by the U.S. District Judge Terry Doughty, to the extent that Doughty’s injunction is now “inconsistent” with the 5th Circuit’s Friday ruling, pending the issuance of the 5th Circuit’s mandate. The government, in the alternative, asked the 5th Circuit to issue its mandate immediately, said the emergency motion. The mandate without the court’s intervention isn’t scheduled to issue until Oct. 31, it said.

The 5th Circuit’s opinion Friday vacated the injunction as it had applied to officials in three agencies, keeping the restrictions intact on officials with the White House, the Office of the Surgeon General, the FBI and the Centers for Disease Control and Prevention. It also stripped the injunction of all but one of its prohibitions, barring officials from coercing social media platforms to moderate their content.

One of the requested forms of relief “is necessary to avoid allowing the preliminary injunction entered by the district court to take effect” when the 5th Circuit’s 10-day administrative expires Sept. 18, even though the 5th Circuit concluded the injunction should be vacated in part and the remaining portion should be modified. It asked the 5th Circuit to act on the motion by Wednesday “because the nature of the injunction that will take effect upon the expiration of the administrative stay will inform any request for relief the government may file in the Supreme Court,” it said. Either form of relief would avoid the "improper result of allowing the district court’s preliminary injunction to regain effect even after having been held invalid" by the 5th Circuit, it said.