The Biden administration is appealing a federal judge's ruling that ordered the government to halt a wide range of communications with social media companies. President Biden and the other federal defendants in the case "hereby appeal" the ruling to the US Court of Appeals for the Fifth Circuit, according to a notice filed in US District Court yesterday. The US will submit a longer filing with arguments to the 5th Circuit appeals court.
On Tuesday, Judge Terry Doughty of US District Court for the Western District of Louisiana granted a preliminary injunction that prohibits White House officials and numerous federal agencies from communicating "with 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."
Doughty found that defendants "significantly encouraged" and in some cases coerced "the social-media companies to such extent that the decision [to modify or suppress content] should be deemed to be the decisions of the Government." The Biden administration has argued that its communications with tech companies are permissible under the First Amendment and vital to counter misinformation about elections, COVID-19, and vaccines.
Department of Justice lawyers are expected to seek a stay of the preliminary injunction. The 5th Circuit court that will handle the Biden appeal last year upheld a Texas law that prohibits social media companies from moderating content based on a user's "viewpoint."
State Dept. cancels Facebook meetings
In the meantime, the Biden administration is taking steps to avoid violating Doughty's injunction. According to The Washington Post, "the State Department canceled its regular meeting Wednesday with Facebook officials to discuss 2024 election preparations and hacking threats."
"State Department officials told Facebook that all future meetings, which had been held monthly, have been 'canceled pending further guidance,'" the Post wrote, citing a source at Facebook.
Doughty, a Trump nominee, made the ruling in a lawsuit filed by the Missouri and Louisiana attorneys general. Doughty ruled that plaintiffs "are likely to succeed on the merits on their claim that the United States Government, through the White House and numerous federal agencies, pressured and encouraged social-media companies to suppress free speech."
The injunction doesn't cut off all contact between the Biden administration and social media companies. Doughty's ruling said the government may continue to inform social networks about posts involving criminal activity or criminal conspiracies, national security threats, extortion, criminal efforts to suppress voting, illegal campaign contributions, cyberattacks against election infrastructure, foreign attempts to influence elections, threats to public safety and security, and posts intending to mislead voters about voting requirements and procedures.
The US can also exercise "permissible public government speech promoting government policies or views on matters of public concern," communicate with social networks "in an effort to detect, prevent, or mitigate malicious cyber activity," and "communicat[e] with social-media companies about deleting, removing, suppressing, or reducing posts on social-media platforms that are not protected free speech by the Free Speech Clause in the First Amendment to the United States Constitution."
Election disinformation talks expected to continue
The Washington Post paraphrased a Homeland Security official as saying that "many of the activities they pursued, such as warnings about election disinformation, are exempted from the injunction and are likely to continue."
State Department meetings with Facebook and other tech companies are used to discuss foreign influence operations, the Post wrote. One person who is familiar with the talks told the news organization that "State will share Russian narratives, things they are seeing in state media in Russia about US topics. They will ask whether Facebook is seeing things from known entities, such as the Chinese Communist Party or the Internet Research Agency." The Internet Research Agency is a Russian company charged with seeking to interfere in the 2016 US presidential election.
White House Press Secretary Karine Jean-Pierre said in a press briefing yesterday that "DOJ is reviewing the injunction" and that "we disagree with the decision."
"We are going to continue to promote responsible actions to protect public health, safety, and security when confronted by challenges like a deadly pandemic and foreign attacks on our election... Our view remains that social media platforms have a critical responsibility to take action or to take account of the effects of their platforms are having to the American people but make independent choices about the information they present," Jean-Pierre said.
In addition to the Missouri and Louisiana attorneys general, the plaintiffs in the case against the Biden administration include professors Jayanta Bhattacharya and Martin Kulldorff, who co-authored the October 2020 "Great Barrington Declaration" that opposed COVID lockdowns and urged a focus on reaching herd immunity. Robert F. Kennedy Jr. and his anti-vaccine Children's Health Defense group, which was banned from Facebook for violating COVID-19 policies, are trying to have their own lawsuit against Biden consolidated with the Missouri/Louisiana case.
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