DOJ asks for stay of order barring federal contact with social media firms

Washington — The Justice Department on Thursday asked a federal court to put on hold its order blocking Biden administration officials from communicating with social media companies while it appeals the decision.

In a filing in support of its request for a stay, federal prosecutors said the preliminary injunction issued by U.S. District Judge Terry Doughty on Tuesday sweeps too broadly and is unclear as to what conduct it allows and who it covers.

The order, they said, "may be read to prevent the Government from engaging in a vast range of lawful and responsible conduct — including speaking on matters of public concern and working with social media companies on initiatives to prevent grave harm to the American people and our democratic processes."

The Justice Department warned that the injunction, which names entire agencies like the Departments of Justice and Health and Human Services, causes "significant confusion" as to who is temporarily barred from working with social media companies.

"The potential breadth of the entities and employees covered by the injunction combined with the injunction's sweeping substantive scope will chill a wide range of lawful government conduct relating to [the administration's] law enforcement responsibilities, obligations to protect the national security, and prerogative to speak on matters of public concern," prosecutors said.

The preliminary injunction granted by Doughty, who was appointed by former President Donald Trump, blocks a number of top Biden administration officials — among them Homeland Security Secretary Alejandro Mayorkas, Health and Human Services Secretary Xavier Becerra, Surgeon General Vivek Murthy and White House press secretary Karine Jean-Pierre — from engaging in a range of communications with social media companies.

The administration officials are temporarily prohibited from working with the companies in ways that are aimed at "urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech."

The order lists several carve-outs, including allowing the Biden administration to inform social media companies of posts involving criminal activity, threats to national security and public safety, and illegal efforts to suppress voting or of foreign attempts to influence elections. 

The Justice Department swiftly notified the court that it intends to appeal Doughty's decision.

The injunction stemmed from a lawsuit filed by the Republican attorneys general of Louisiana and Missouri in 2022 that alleged senior government officials colluded with social-media companies to suppress viewpoints and content on social media platforms, violating the First Amendment.

Their suit accused platforms like Twitter and Facebook of censoring a New York Post story about the contents of a laptop owned by Hunter Biden, President Biden's son, posts about the origins of COVID-19 and various mitigation measures implemented during the pandemic and speech about the integrity of the 2020 presidential election.

The Biden administration, however, said that it often spoke publicly and privately with social media companies to promote its message on public health and safety during the COVID-19 pandemic, identify potential threats to the integrity of elections and flag misinformation spreading on platforms. 

Additionally, much of the conduct alleged occurred during the Trump administration, the Justice Department wrote in a May filing.

"The Constitution preserves the Government's right to encourage specific private behavior, such as joining a war effort, stopping the sale of cigarettes to children, and — in this case — reducing the spread of misinformation that undermines election security or the nation's efforts to protect the public from the spread of a deadly disease," Justice Department lawyers told the court. "A social media company's independent decision to follow the Government's urgings does not transform the company's conduct into government action."

But in an opinion granting the states' request for an injunction, Doughty said they were likely to succeed on the merits of their claims that the Biden administration's efforts violated the First Amendment.

"Using the 2016 election and the COVID-19 pandemic, the Government apparently engaged in a massive effort to suppress disfavored conservative speech," he wrote.