Judge Refuses to Pause Ban on US Agency Social-Media Contact (2)

A federal judge in Louisiana denied a request by the US government to delay an order he imposed last week banning federal agencies and officials from communicating with social media companies.

Within hours of US District Court Judge Terry Doughty’s order refusing to pause his nationwide injunction Monday, the Justice Department asked the 5th US Circuit Court of Appeals to intervene. Doughty had also denied the government’s alternative request for a seven-day pause while it asked the appeals court to step in.

The Justice Department said in its latest filing that it would consider seeking emergency action by US Supreme Court if the 5th Circuit rebuffs its request.

Doughty’s injunction threatened to chill “wholly lawful conduct,” the Justice Department wrote, “and to place the judiciary in the untenable position of superintending the Executive Branch’s communications. It raises grave separation-of-powers concerns.”

In Monday’s ruling, Doughty defended his July 4 order from the Justice Department’s argument that it is overly broad and unclear in defining which communications with tech companies are no longer allowed. He wrote that the government isn’t entitled to delay his order because it is likely to lose the case and failed to identify specific activities that would be hurt in the meantime.

Although the ruling involves numerous agencies, “it is not as broad as it appears,” the judge wrote in the order. “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 order “also contains numerous exceptions,” the judge said.

A Justice Department spokesperson didn’t immediately respond to a request for comment.

The Biden administration wants to put the communications ban on hold while it challenges Doughty’s 155-page opinion concluding the government likely violated the First Amendment in its efforts to persuade tech companies to limit the spread of misinformation and fake accounts, especially during the pandemic.

In asking for a reprieve, government attorneys argued the judge’s order was too broad, unclear and would interfere with the ability of federal agencies to work with tech companies “on initiatives to prevent grave harm to the American people and our democratic processes.”

Read More: Biden Appeal Opens a New Front in Battle Over Internet Speech

Doughty’s order bars an array of agencies and their employees from “urging, encouraging, pressuring, or inducing” social media companies to remove or restrict content covered by the First Amendment’s free speech protections. The judge included exceptions for communications about criminal activity, national security threats, election integrity issues, and other “permissible public government speech.”

The challengers who brought the case — including the Republican state attorneys general of Missouri and Louisiana, as well as individuals who alleged they were harmed by the government’s efforts — had opposed pausing Doughty’s injunction while the case moves forward.

The case is State of Louisiana v. Biden, 3:22-cv-01213, US District Court, Western District of Louisiana (Monroe)

(Updates appeals court filing starting in second paragraph.)

To contact the reporter on this story:
Zoe Tillman in Washington at ztillman2@bloomberg.net

To contact the editors responsible for this story:
Sara Forden at sforden@bloomberg.net

Elizabeth Wasserman

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