5th Circuit halts order barring Biden administration communications with social media companies

Washington — A federal appeals court on Friday temporarily paused a lower court order that limited communications between top Biden administration officials and social media companies about content posted to their platforms.

The three-judge panel for the 5th U.S. Circuit Court of Appeals granted the Justice Department's request to put on hold the July 4 preliminary injunction from U.S. District Judge Terry Doughty while legal proceedings continue. It also agreed to expedite the administration's appeal. 

The temporary administrative stay will remain in place "until further orders of the court," according to the brief order.

The Justice Department turned to the 5th Circuit for relief after it asked Doughy last week to halt his own order while it pursued an appeal. Doughty, appointed by former President Donald Trump, declined to do so, and in a 13-page ruling rejected the government's assertions that his injunction swept too broadly and threatened to chill lawful conduct.

"Although this Preliminary Injunction involves numerous agencies, it is not as broad as it appears," Doughty wrote. "It only prohibits something the Defendants have no legal right to do — contacting 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."

The judge reiterated that he believes Missouri and Louisiana, who sued the government last year over federal officials' communications with social media companies during the COVID-19 pandemic and 2020 election cycle, are likely to succeed on the merits of their case.

The states "are likely to prove that all of the enjoined defendants coerced, significantly encouraged, and/or jointly participated [with] social-media companies to suppress social-media posts by American citizens that expressed opinions that were anti-COVID-19 vaccines, anti-COVID-19 lockdowns, posts that delegitimized or questioned the results of the 2020 election, and other content not subject to any exception to the First Amendment," he wrote. "These items are protected free speech and were seemingly censored because of the viewpoints they expressed."

The judge's July 4 injunction blocks top Biden administration officials 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 their platforms. 

Among those covered by the injunction are Homeland Security Secretary Alejandro Mayorkas, Health and Human Services Secretary Xavier Becerra, Surgeon General Vivek Murthy and White House press secretary Karine Jean-Pierre, as well as several federal agencies.

The order contains 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. 

In its request that the injunction be halted, the Justice Department warned that it swept too broadly and is unclear as to what conduct is allowed and who is covered.

The injunction, administration lawyers 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 lawsuit brought by the attorneys general of Missouri and Louisiana, as well as several individuals, alleges that 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, Mr. 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.