NEW ORLEANS – The Biden administration asked a federal appeals court Monday to temporarily block a lower court's order limiting executive branch officials' discussions with social media companies about controversial online posts.
The request for an emergency stay was filed at the 5th U.S. District Court of Appeals shortly after U.S. District Judge Terry Doughty rejected an administration motion that he put his own July 4 order on hold. The order came in a lawsuit filed by Republican attorneys general in Louisiana and Missouri, as well as a conservative website owner and four individual critics of government COVID-19 policies.
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The lawsuit claimed the administration, in effect, censored free speech by using threats of regulatory action or protection while pressuring companies to remove what it deemed misinformation. COVID-19 vaccines, legal issues involving President Joe Biden’s son Hunter and election fraud allegations were among the topics spotlighted in the lawsuit.
Doughty was nominated to the federal bench by former President Donald Trump. His injunction blocked the Department of Health and Human Services, the FBI and multiple other government agencies and administration officials from meeting with or contacting social media companies for the purpose of “encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
Administration attorneys said in the motion filed at the 5th Circuit that Doughty's ruling was too broad and vague, and had the potential to chill government officials' speech on important matters. And they said Doughty failed to point to any evidence that the administration had made threats against social media companies to coerce them to take down posts.
"The district court identified no evidence suggesting that a threat accompanied any request for the removal of content. Indeed, the order denying the stay — presumably highlighting the ostensibly strongest evidence — referred to 'a series of public media statements,'" the administration said.
They asked that the 5th Circuit block Doughty's order while the case is pursued at the appeals court in New Orleans or, at minimum, grant a 10-day block of the order so the administration could prepare to go to the Supreme Court to seek a longer stay.
Earlier Monday, Doughty rejected administration requests that he stay his own order pending appeal.
“In essence," Doughty's Monday order said, "Defendants argue that the injunction should be stayed because it might interfere with the Government’s ability to continue working with social-media companies to censor Americans’ core political speech on the basis of viewpoint. In other words, the Government seeks a stay of the injunction so that it can continue violating the First Amendment.”
Government lawyers have argued that the companies control their own policies regarding misinformation and that the lawsuit casts officials' comments on issues and policy as threats. The administration said Doughty's July 4 order was unclear about who in the executive branch it covers and what they can or cannot say about important topics discussed on social media platforms.
The order could cause “grave harm” by preventing the government from “engaging in a vast range of lawful and responsible conduct,” government lawyers said in requesting the stay Thursday night.
Doughty order said the administration “seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’” The order, which was to remain in effect pending further arguments in Doughty's court, was hailed by conservatives as a victory for free speech and a blow to censorship. But critics said the order and accompanying reasons, covering more than 160 pages, were broad, unclear and could chill government efforts to fight misinformation on important topics.
The criticisms were echoed in the government's Thursday night request for a stay. “The potential breadth of the entities and employees covered by the injunction combined with the injunction’s sweeping substantive scope will chill a wide range of lawful government conduct relating to Defendants’ law enforcement responsibilities, obligations to protect the national security, and prerogative to speak on matters of public concern,” the government's motion said.
The lawsuit's plaintiffs countered with a weekend filing opposing a stay. Among the arguments are that the July 4 injunction carves out exemptions allowing officials to contact social media companies about postings involving criminal activity or public safety threats; national security threats; election-related issues including voter suppression attempts, voting infrastructure threats and illegal campaign contributions; and saying officials can continue "exercising permissible public government speech promoting government policies or views on matters of public concern.”