DOJ Asks 5th Circuit to Continue Social Media Injunction’s Administrative Stay

The 5th Circuit U.S. Court of Appeals’ Sept. 8 ruling “properly held” that the plaintiff attorneys general of Louisiana and Missouri weren’t likely to succeed on their claims against the Cybersecurity and Infrastructure Security Agency and State Department defendants, and “properly vacated the injunction against them” (see 2309090001), said DOJ’s response Thursday (docket 23-30445) to the AGs’ petition for rehearing. Their petition “provides no basis for disturbing those holdings,” and reinstating officials from those agencies, and should be denied, it said.

The government’s application for a stay of the U.S. District Court for Western Louisiana’s injunction is pending before the U.S. Supreme Court, said DOJ’s response. If SCOTUS hasn’t granted a stay before the 5th Circuit acts on the rehearing petition, the government asks that the 5th Circuit continue its administrative stay of the injunction until SCOTUS acts on the pending application for a stay, or on any renewed stay application filed within 10 days of the 5th Circuit’s disposition of the petition for rehearing, it said.

The government also asked the 5th Circuit to issue its mandate immediately after acting on the rehearing petition, said DOJ’s response, to avoid allowing the district court’s injunction to take effect without the modifications that the 5th Circuit “deemed proper” in its Sept. 8 order, it said. The 5th Circuit on Sept. 11 honored DOJ’s request for an immediate mandate that cleared the way for the government to seek SCOTUS review. But the 5th Circuit recalled that mandate Tuesday when it decided to consider the plaintiffs’ rehearing petition.

The plaintiffs, including the Republican AGs and five individual social media users, “identify no conduct” by CISA or the State Department that the 5th Circuit overlooked, said DOJ’s response. “They attempt to conflate CISA with the FBI,” ignoring the “inapplicability” to CISA of the grounds on which the court ruled with regard to the FBI, it said. They also improperly seek to attribute to CISA and the State Department the conduct of a private organization, the Election Integrity Partnership (EIP), “without demonstrating either that the private organization should be subject to constitutional constraints or that it would have violated such constraints even if they were applicable,” it said.

The plaintiffs “present an inaccurate description of the factual record, ignoring unrebutted evidence and failing to substantiate their factual assertions,” said DOJ’s response. The 5th Circuit, in short, didn’t “overlook or misapprehend any relevant facts in vacating the injunction as to the CISA and State Department defendants or in vacating a provision of the injunction targeted at particular private organizations,” it said.

The CISA defendants can’t be enjoined on the theory that the CIA “participated in meetings with the FBI,” said DOJ’s response. The plaintiffs don’t identify “any threatening or coercive act” by CISA or any specific conduct that demonstrates CISA “exercised control” over the social media platforms, it said.

Unable to identify any act or omission by CISA that would violate the Constitution, the plaintiffs urge the 9th Circuit to reinstate the injunction against CISA “merely on the ground that CISA cooperated in a general manner with the FBI,” said DOJ’s response. “No doctrine justifies the attribution of one entity’s conduct to another on that ground,” it said.

Nor do the plaintiffs identify any basis on which the asserted cooperation between CISA and the FBI “would cause CISA to have violated the First Amendment,” said DOJ’s response. The 5th Circuit said regular meetings and a working relationship between platforms and agencies weren’t “problematic” from a First Amendment perspective, it said. The plaintiffs don’t establish that CISA “could exercise authority over platforms or force them to take down content,” it said.

Neither CISA nor the State Department can be enjoined based on their interactions with the EIP, said the DOJ response. The plaintiffs make a series of “unwarranted logical leaps” to argue CISA and the State Department could be enjoined based on their supposed “entanglement” with the EIP, it said.

As the 5th Circuit observed, the EIP “is a private organization that possesses its own First Amendment rights to speak about misinformation,” including by flagging content for social media platforms, said DOJ’s response. The plaintiffs offer a “roundabout theory” that the EIP “coerced platforms into changing their content-moderation policies and decisions and that the EIP is in fact a CISA entity,” it said. They’re wrong “on both counts,” it said.

Even if the plaintiffs had shown EIP’s actions were attributable to CISA, they haven’t shown the EIP “did anything more than advocate for the adoption and enforcement of different content-moderation policies,” said DOJ’s response. The plaintiffs’ petition doesn’t suggest, let alone demonstrate, that the EIP, with or without CISA’s involvement, had power over the platforms in any capacity, it said. The plaintiffs also haven’t shown the EIP made requests that were threatening in tone or manner, or that it exercised any other form of advocacy that equated to meaningful control, it said.