• by Wendy Davis  @wendyndavis, July 31, 2023

A New York-led coalition of 20 states and the District of Columbia are supporting the Biden administration's request to vacate an injunction that if allowed to take effect, would prevent federal government officials from urging social-media platforms to suppress misinformation.

“The federal government ... has an essential role to play in contributing to the marketplace of ideas, yet the district court’s order effectively imposes a gag order on large swaths of the federal government,” the states write in a friend-of-the-court brief filed Friday with the 5th Circuit Court of Appeals. “This will impoverish, rather than protect, wide open and robust debate on a wide range of matters of public importance.”

The injunction, issued by U.S. District court Judge Terry Doughty in Monroe, Louisiana, prohibits numerous federal agencies and personnel from “taking any action such as urging, encouraging, pressuring, or inducing in any manner social-media companies to remove, delete, suppress, or reduce posted content” protected by the First Amendment.

The order includes bans on meeting with social media companies in order to convince them to suppress content protected by the First Amendment, flagging specific posts as problematic, and encouraging tech platforms to change their content-moderation guidelines.

A three-judge panel of the 5th Circuit on July 14 temporarily lifted the injunction, but only until the court holds a full hearing.

Doughty issued the injunction in response to a lawsuit by attorneys general in Louisiana and Missouri, and several individuals who said their posts related to COVID-19 policies and vaccines were suppressed.

The complaint included a claim that the government violated the First Amendment by pressuring social platforms "to censor disfavored speakers and viewpoints by using threats of adverse government action."

Doughty wrote in a 155-page opinion issued July 4 that the government's effort to prevent the spread of some content “depicts an almost dystopian scenario.”

“During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian 'Ministry of Truth,'” he wrote.

He added that posts opposing COVID-19 vaccines, masking requirements, lockdowns and the validity of the 2020 election were among the content that was suppressed on social media.

When Doughty issued the injunction, he said it wouldn't stop the government from informing tech companies about posts involving crime, national security threats, or criminal efforts to suppress voting.

The order also, according to Doughty, doesn't prohibit officials from “exercising permissible public government speech promoting government policies or views on matters of public concern.”

The Biden administration argued to the 5th Circuit that Doughty's order should be reversed for numerous reasons, including that government officials don't violate the First Amendment by asking social media companies to take down posts, unless the government is also threatening companies with some sort of sanction for failing to remove the material.

It is “wholly appropriate for the White House (or other parts of the government) to speak with platforms when they take issue with the accuracy of content that affects their interests, just as it is appropriate for the White House press office (like the public-relations staff of any private corporation) to call a newspaper or television network to question the accuracy of a story,” the administration argued in a brief filed last week with the 5th Circuit.

“Absent a threat of sanctions for noncompliance or a comparably compelling incentive -- and there is no evidence of either here -- the White House can, for example, permissibly call a social-media company’s attention to a doctored video,” the Department of Justice writes. “It would be extraordinary to suggest that the government is uniquely powerless to call a platform’s attention to issues of this kind. Nor is it constitutionally problematic for the government to discuss with social media platforms the government’s views on appropriate content-moderation practices, provided that the platforms remain free to determine their own practices.”

New York and the other states supporting the Biden administration argue that talks between government officials and social media companies are “frequently mutually desired and beneficial.”

“Information-sharing and dialogue have not been coercive, but rather, helpful in ensuring that social-media companies make fully informed decisions about their own content moderation policies. These communications thus play an important role in safeguarding the public interest,” the states argue.

Among other examples, the states point to efforts to combat incorrect information about voting, as well as to combat cyberbullying.

The 5th Circuit has scheduled a hearing in the matter for August 10.