U.S. Appellate Court Blocks Injunction Against Federal Agencies Acting to Censor Free Speech

• by Carolyn Hendler, JD

• Published July 31, 2023
• Federal & State Courts

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Freedom of speech in the United States was delivered a blow on July 14, 2023 when a U.S. Federal Appeals Court issued a temporary stay blocking a preliminary injunction which limited the U.S. Justice Department’s communication with social media companies seeking to remove “content containing protected free speech.” The Appellate Court panel of Judges, Judge Carl Stewart (appointed by President Bill Clinton), Judge James Graves (appointed by President Barack Obama) and Judge Andrew Oldham (appointed by President Donald Trump) did not issue an explanation for their decision in the government’s favor.^{1 2}

The original lawsuit was brought by Former Missouri Attorney General Eric Schmitt and Louisiana Attorney General Jeff Landry against 67 U.S. federal agencies. The lawsuit accused government officials of engaging in a widespread campaign of pressuring and colluding with social media platforms to censor users’ free speech in violation of the First Amendment of the U.S. Constitution. Plaintiffs submitted more than 1,400 pieces of information taken from internal government documents to support their request for a preliminary injunction, which was granted on July 4 by US District Judge Terry Doughty in Louisiana.^{3 4}

In a March 2023 press release explaining why the lawsuit requesting an injunction against federal government officials was important, Missouri Attorney General Andrew Bailey stated:

The motion for preliminary injunction highlights 1,432 facts showing that top officials in the federal government are coercing and colluding with big tech social media companies to censor free speech… This case is the most important free speech lawsuit in a generation, as we highlight more than 1,400 facts showing the Biden Administration’s blatant coercion and collusion with Big Tech social media companies to suppress speech it disagrees with. I will not rest until the court blocks unelected bureaucrats from violating our constitutional right to free and open debate.⁵

Preliminary Injunction Granted Against the Government

Judge Doughty explained he issued a preliminary injunction against the government due to the “substantial evidence” of censorship demands from the federal agencies and officials to social media companies.⁶

Judge Doughty wrote:

Evidence produced thus far 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.’⁷

 The preliminary injunction prohibited the federal agencies and officials from engaging in discourse with social media companies that amounted to, “encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”⁸

 Justice Department Requests a Stay and Files an Appeal

The Justice Department requested a stay of the court order pending an appeal, but Judge Doughty declined the motion on July 10. Having lost their bid with Judge Doughty, the Justice Department turned to the 5^th Circuit Court of Appeals in New Orleans requesting an emergency stay, which was granted four days later.^{9 10}

The Justice Department’s 22- page request resulted in the Appellate Court agreeing to temporarily block the preliminary injunction pending appeal and expedite the matter. The lengthy request for a stay suggests that the Justice Department is considering bringing the matter to the U.S. Supreme Court, if necessary.^{11 12}

The Justice Department’s filing complained that the injunction had the potential to prevent the government from protecting the public from misinformation about natural disasters, the fentanyl crisis and the security of national elections.¹³

The Emergency Appeal argues, in part, that Judge Doughty’s ruling was over-reaching and overly broad, would irreparably harm the government and that the plaintiffs lacked standing to bring suit against the federal government under the parens patrai theory.¹⁴ The parens patrai theory states that a state may act as a third party to bring a lawsuit that involves the state’s quasi-sovereign interests in order to protect its citizens.¹⁵

Government Officials Deny Coercing Social Media Companies to Censor Citizens

The Government argues that the plaintiffs are not likely to succeed on the First Amendment claim because, “…government officials do not violate the First Amendment when they request that a private intermediary not carry a third party’s speech so long as the officials do not threaten adverse consequences if the intermediary refuses to comply.”¹⁶

Judge Doughty disagreed. In his 155-page decision granting a preliminary injunction, he concluded that the Plaintiffs were likely to succeed on the merit as the government’s actions towards social media companies went beyond mere requests and instead amounted to pressure and “significant encouragement” to remove and suppress free speech to the extent that the social media companies removal and flagging of content was deemed an extension of government action, which violates the First Amendment.

 The Justice Department alleged that the government will suffer irreparable harm because there is the potential that the injunction could be interpreted as limiting the President’s ability to communicate his views of public consequences, which raises a separation of powers issue and could prevent the U.S. Centers for Disease Control and Prevention (CDC) from helping social media platforms to make content-moderation decisions on scientific matters for the protection of the public.¹⁷

However, in the Order denying the Justice Department’s request for a stay, Judge Doughty clarified that his previous order prohibiting federal agencies and officials of the Biden administration from working with social media companies to censor free speech carved out exceptions for communications related to election interference, national security threats and criminal activity.¹⁸

The Order read:

Although this Preliminary Injunction involves numerous agencies, it is not as broad as it appears. 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.¹⁹

The matter eventually will be heard by another appeals panel of judges, who will decide whether to extend or deny the government’s request for a stay of the prior order based on the merits of the case.

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