Arguments set for Biden administration appeal of barring talk to social media companies

A federal appeals court will hear arguments Thursday regarding a lower court’s ruling curtailing communications by officials in the Biden administration with social media companies over controversial posts. 

Last month, U.S. District Judge Terry Doughty ruled administration officials cannot contact social media companies relating to “any manner the removal, deletion, suppression, or reduction” of content on the platforms containing “protected free speech.” 

The Louisiana-based Trump appointee ordered officials from several federal agencies to cease relevant communications with the companies, including the Department of Justice, State Department and Centers for Disease Control and Prevention.  

The decision was a blow to the Biden administration’s efforts to curb disinformation — efforts central to the lawsuit prompting Doughty’s ruling. 

Republican attorneys general in Louisiana and Missouri called those endeavors a “campaign of censorship” in their challenge to the administration’s practices. The case had primarily taken aim at attempts to cut back false information online during the COVID-19 pandemic, which Republicans decried as a violation of the First Amendment. 

A panel of three judges from the 5th Circuit Court of Appeals — which is primarily made of GOP-appointed judges — issued an administrative stay on Doughty’s order until further notice. 

Lawyers led by Brian Boynton, principal deputy assistant attorney general, argued in the administration’s appeal brief that the “sweeping language” in Doughty’s order could be read to prohibit “virtually any government communication directed at social media platforms regarding content moderation.” 

“The unprecedented injunction at issue here installs the district court as the arbiter of which government communications are permissible,” Boynton wrote. “It does so with no basis in law or fact.” 

The lawyers also argued that allowing the ruling to stand would “significantly” harm the government and public interest. They gave the example of a Surgeon General publicly expressing the view that social media companies should take action on suicide prevention, including by “curtailing features that feed suicide-promoting content to persons struggling with suicidal ideation.” 

“Such statements have not a whiff of coercion. But they could be regarded as ‘urging’ or ‘encouraging … social-media companies to change their guidelines for removing, deleting, suppressing, or reducing content containing protected free speech,’” Boynton wrote. 

In the attorneys general’s appeals brief, their counsel argued the judge’s order put a stop to an “egregious campaign” of censorship and should remain in effect. 

“This campaign of federal censorship was so effective that it fundamentally distorted online discourse in America on great social and political questions, rendering entire viewpoints virtually unspeakable on social media,” they argued. 

Republicans on the House Judiciary’s subcommittee on government weaponization — including Chairman Jim Jordan (R-Ohio) — filed an amicus brief in support of the attorneys general, asserting that the Biden administration has repeatedly “distorted the free marketplace of ideas promised by the First Amendment, bringing the weight of federal authority to bear on any speech it dislikes — including memes and jokes.” 

The 5th Circuit Court of Appeals will hear 30 minutes of oral arguments from each side Thursday afternoon.