Federal agencies accused of pressuring social media companies to remove users’ content will remain free to contact those companies for the time being because the U.S. Court of Appeals for the 5th Circuit has temporarily stayed a judge’s order forbidding them from making contact.
The heavily litigated case remains pending before the 5th Circuit. At the same time, a Supreme Court order blocking the judge’s order remained in effect as of press time late on Sept. 27.
The Biden administration has been ordered to make submissions to the 5th Circuit by midday on Sept. 28 as to how that court should proceed.
On July 4, U.S. District Judge Terry Doughty of Louisiana, an appointee of President Donald Trump, issued a ruling that prohibited several agencies, including the Department of Justice (DOJ), the Department of Homeland Security, the State Department, the Cybersecurity and Infrastructure Agency, and the Centers for Disease Control and Prevention (CDC), from intimidating social media companies.
The lawsuit that spawned the injunction was filed by Missouri and Louisiana’s attorneys general, who have accused Biden administration officials of engaging in what amounts to governmental censorship-by-proxy by leaning on social media companies to take down posts or suspend accounts.
The lawsuit alleged that the Biden administration urged or even mandated Facebook, Twitter, LinkedIn, and YouTube “to censor viewpoints and speakers disfavored by the Left,” under the cover of combating “disinformation,” “misinformation,” and “malinformation.”
Judge Doughty’s injunction provides that agencies and their employees may not communicate with the social media companies by “urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech.”
The agencies may not flag content on social media platforms or seek to remove content or suppress its reach. The agencies also may not press the platforms to alter their guidelines for the removal, suppression, or reduction of content that contains protected free speech, the injunction states. But the injunction allowed federal officials to continue to correspond with social media firms regarding criminal activity, national security threats, and other matters.
On Sept. 8, the 5th Circuit partially upheld Judge Doughty’s injunction, allowing certain agencies to communicate with companies in some circumstances.
But on Sept. 14, Supreme Court Justice Samuel Alito put the July 4 ruling on hold, which allowed the government to continue interacting with the social media companies. Then on Sept. 22, Justice Alito extended the stay to 11:59 p.m. on Sept. 27.
As of the evening of Sept. 27, the Supreme Court had neither acted to extend nor to refuse to extend the stay.
But on Sept. 26, Louisiana Attorney General Jeff Landry and Missouri Attorney Andrew Bailey advised (pdf) the Supreme Court in a letter that on Sept. 25 a panel of the 5th Circuit withdrew its order and granted a rehearing in the case at the request of the two Republican attorneys general.
The 5th Circuit ordered the Biden administration to respond to the petition for rehearing by 12 noon on Sept. 28 and stayed Judge Doughty’s injunction “pending resolution of Appellees’ petition for panel rehearing,” according to the letter.
The 5th Circuit order was issued by a three-judge panel. The panel consisted of Judges Edith Clement and Jennifer Elrod, who were appointed by President George W. Bush in 2001 and 2007, respectively, and Judge Don Willett, who was appointed by President Donald Trump in 2017.
Attorney General Bailey told EpochTV’s “American Thought Leaders: Now” sub-series last month that the Biden administration’s “vast censorship enterprise” that is targeting American voices and operates amid “a dystopian scenario, Orwellian in nature,” should be permanently halted.
Mr. Bailey said the preliminary part of the discovery process “has uncovered a relationship of coercion and collusion between the White House across a spectrum of federal agencies to silence American voices on big tech social media in violation of the First Amendment.”
“We’ve got to build a wall of separation between tech and state to protect Americans’ First Amendment rights, and the first brick of that wall was laid on July 4, when the court agreed with our side of the issue and issued a nationwide injunction preventing President [Joe] Biden and the federal bureaucracy from coordinating with big tech social media to silence core political speech, which is protected under the First Amendment.”
After the trial court acted, the DOJ “almost instantly” moved against the injunction and “actually had the audacity to argue that the nation would suffer irreparable harm if they weren’t allowed to continue violating Americans’ First Amendment rights,” Mr. Bailey said at the time.
In the DOJ’s emergency application on Sept. 14, U.S. Solicitor General Elizabeth Prelogar asked the Supreme Court to allow federal officials to call into question online posts that they claim pose a danger to public health. The DOJ argued that federal officials need to be able to correspond with social media companies for national security purposes.
Under Judge Doughty’s injunction, “the Surgeon General, the White House Press Secretary, and many other senior presidential aides risk contempt if their public statements on matters of policy cross the ill-defined lines drawn by the Fifth Circuit,” Ms. Prelogar wrote.
“CDC officials run the same risk if they accurately answer platforms’ questions about public health. And FBI agents risk being hauled into court if they flag content posted by terrorists or disinformation disseminated by covert malign foreign actors.”
Ms. Prelogar also argued that Judge Doughty’s injunction was “vastly overbroad” and said it “covers thousands of federal officers and employees, and it applies to communications with and about all social media platforms.”
The Supreme Court is currently in its summer recess. The court resumes oral arguments on Oct. 2.
