July 6 (Reuters) – A federal judge’s order barring Biden administration officials from contacting social media companies to moderate their content will face stiff legal challenges on appeal, experts said.
Several jurists and attorneys said that while the lawsuit against the administration’s communications with social media companies raised real concerns about free speech, there was no precedent to support the sweeping preliminary order issued Tuesday by the US district judge. Terry Doughty states in Louisiana that it would drastically limit dozens of government agencies and officials communications with social media companies.
The Biden administration filed a notice with the New Orleans-based US 5th Circuit Court of Appeals on Wednesday saying it was appealing the ruling.
The lawsuit was filed by Republican attorneys general in Louisiana and Missouri, as well as several individuals. The plaintiffs said US officials violated their right to free speech under the First Amendment to the US Constitution by pressuring social media companies to delete posts officials feared could fuel vaccine hesitancy during the COVID-19 pandemic or election conspiracy theories.
Jonathan Turley, a professor at George Washington University Law School who has been sharply critical of such government efforts and has testified against them several times before Congress in recent years, hailed Doughty’s ruling as a “very important moment for those of us who have defied the various government censorship programs and projects”.
However, he said, the injunction “will have a tough time on appeal, because it’s such a rare and new order.”
The order prevents government agencies such as the Department of Health and Human Services and certain government officials from communicating with social media companies “for the purpose of soliciting, encouraging, pressuring, or in any way inducing the removal, deletion, suppression or abridgement of content containing protected free speech” under the first amendment. The ruling is not a final decision, but is intended to remain in effect while the judge considers the merits of the case.
On appeal, the 5th Circuit will consider both Doughty’s finding, set out in a 155-page opinion, that the government violated the First Amendment, and whether the order he issued in response was too broad or necessary. to prevent harm to the plaintiffs.
Although the 5th Circuit is considered among the most conservative of the federal appellate courts, it reversed Doughty’s previous orders in the case that would have allowed senior administration officials to be questioned.
THREAT OF HARM
The Biden administration argued there was no threat of harm because the lawsuit challenged communications that ended more than a year ago.
He also said that while he urged social media companies to stop the spread of dangerous misinformation, the companies themselves — including Facebook and Instagram parent company Meta Platforms Inc (META.O), YouTube owner Alphabet Inc (GOOGL. O) and Twitter Inc – eventually made their own decisions.
Doughty, however, found that the companies were actually being constrained by the threat of retaliation from government regulators.
Meta declined to comment. Alphabet and Twitter did not immediately respond to requests for comment.
Jameel Jaffer, executive director of Columbia University’s Knight First Amendment Institute, said Doughty’s opinion raises “difficult First Amendment questions” but “really offers no principled way to separate legitimate government speech from coercion.” illegitimacy of the government”.
Instead, Jaffer said, Doughty had taken a “I know it when I see it” approach and that his far-reaching solution was too broad.
Mark MacCarthy, a senior fellow at the Brookings Institution think tank who has studied technology and privacy issues, said the administration could trump its argument that plaintiffs were no longer at risk of harm, although he said it was of a “close response”.
Burt Neuborne, a professor at New York University School of Law, was more skeptical of the free speech claims.
“I am not aware of a single communication that conveys a threat or any form of explicit or implied statement saying, You better do this or anything,” he said. “This opinion seems to think that when the government talks to you it inevitably scares you.”
Doughty, nominated by former Republican President Donald Trump, has spoken out against President Joe Biden, a Democrat, in other cases, including an order blocking a COVID vaccine mandate for health care workers.
Reporting by Brendan Pierson in New York and Andrew Goudsward, Kanishka Singh in Washington; Editing by Alexia Garamfalvi and Leslie Adler
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