A federal judge on July 10 denied the Department of Justice’s (DOJ) request to stay a ruling that places limits on government communications with social media firms, rejecting the White House’s argument that such an order could put a damper on law enforcement activity online.
U.S. District Judge Terry A. Doughty wrote that his order last week had created exceptions for communications for cyberattacks, election interference, and national security threats. The DOJ and Biden administration, he wrote, didn’t provide any specific examples that “would provide grave harm to the American people or our democratic processes.”
“Although this Preliminary Injunction involves numerous agencies, it is not as broad as it appears,” Mr. Doughty wrote on July 10. “It only prohibits something the Defendants have no legal right to do—contacting social media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner, the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.”
The judge further wrote that Republican attorneys general who brought the suit are most likely going to prevail in proving that federal agencies and officials “significantly encouraged,” “coerced,” or “jointly participated” in allegedly suppressing social media posts that included information critical of COVID-19 vaccines or questioned the outcome of the 2020 presidential election.
In response, lawyers for the Biden administration’s DOJ filed an emergency stay of the injunction at the 5th U.S. District Court of Appeals. They argued that Mr. Doughty’s ruling was too vague and broad.
“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 wrote on July 10.
It came as the attorneys general for Missouri and Louisiana have submitted a petition to oppose the Biden administration’s motion to stay an injunction against its efforts allowing it to contact social media firms about a range of online content, including its efforts to flag so-called misinformation.
Over the weekend, the two states filed (pdf) a memorandum of opposition to the administration’s motion, coming days after a federal judge partially granted an injunction that blocks various Biden administration officials and government agencies such as the Justice Department and the FBI from working with big tech firms to censor posts on social media. It came in response to a lawsuit filed by the attorneys general, who accused the White House and various federal agencies of putting pressure on social media firms to take down posts or suspend accounts.
“Evidence in this case overwhelmingly shows that the way the Government supposedly ‘prevent[s] grave harm to the American people and our democratic processes’ is to pressure and induce social-media platforms to censor disfavored viewpoints on COVID-19, elections, and other core political speech,” they wrote on July 9.
“In the end, their position is fundamentally defiant toward the Court’s judgment. It demonstrates that the Government will continue violating First Amendment rights by censoring core political speech on social media as soon as it can get away with it. The motion to stay should be denied.”