The thrust of the motion for a stay focuses on the scope of the preliminary injunction, claiming it is overly broad and prohibits speech protected by the First Amendment. That may resonate with an appeals court, and specific injunctive language is the weakest link in defending this substantively strong decision.
On July 4, 2023, a federal judge in the Western District of Louisiana issued a stunning decision and preliminary injunction finding substantial evidence that the federal government colluded with large tech and social media platforms to censor opposition viewpoints online.
We covered the ruling in Independence Day: Federal Court Enjoins Biden-Big Tech Collusive “far-reaching and widespread censorship campaign” against Conservatives, including these excerpts (emphasis added) to the Judge’s Memorandum Decision:
This case is about the Free Speech Clause in the First Amendment to the United States Constitution. The explosion of social-media platforms has resulted in unique free speech issues— this is especially true in light of the COVID-19 pandemic. If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history. In their attempts to suppress alleged disinformation, the Federal Government, and particularly the Defendants named here, are alleged to have blatantly ignored the First Amendment’s right to free speech.
Although the censorship alleged in this case almost exclusively targeted conservative speech, the issues raised herein go beyond party lines….
The Plaintiffs are likely to succeed on the merits in establishing that the Government has used its power to silence the opposition. Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; opposition to the lab-leak theory of COVID-19; opposition to the validity of the 2020 election; opposition to President Biden’s policies; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power. All were suppressed. It is quite telling that each example or category of suppressed speech was conservative in nature. This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech. American citizens have the right to engage in free debate about the significant issues affecting the country.
Although this case is still relatively young, and at this stage the Court is only examining it in terms of Plaintiffs’ likelihood of success on the merits, the 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.”721
721 An “Orwellian ‘Ministry of Truth’” refers to the concept presented in George Orwell’s dystopian novel, ‘1984.’ In the novel, the Ministry of Truth is a governmental institution responsible for altering historical records and disseminating propaganda to manipulate and control public perception.
The Plaintiffs have presented substantial evidence in support of their claims that they were the victims of a far-reaching and widespread censorship campaign. This court finds that they are likely to succeed on the merits of their First Amendment free speech claim against the Defendants. Therefore, a preliminary injunction should issue immediately against the Defendants as set out herein.
The government asked the District Court Judge for a stay pending appeal, which he denied, going through specifically why the injunction is not overly broad.
The government now has filed an Emergency Motion for a Stay with the 5th Circuit Court of Appeals, and has asked for an immediate “administrative stay” (for a short term while the motion for a stay is briefed) or at least a ruling on the motion by July 24. The government also indicates that if the 5th Circuit denies a stay, it will seek a stay from the Supreme Court:
The government respectfully requests a stay pending appeal of the district court’s preliminary injunction. We further request an immediate administrative stay to permit the orderly resolution of this motion, and in any event request relief by July 24, 2023. If the Court declines to grant a longer stay, it should at a minimum stay the injunction for ten days to permit the Supreme Court to consider an application for a stay, should the Solicitor General elect to file one. Plaintiffs oppose this motion.
Here are excerpts from the summary of argument (basically the same argument for a stay made to the District Court judge):
One of the central prerogatives of the President and Executive Branch officials is to speak to members of the American public—including American companies— about how they can help mitigate threats to the Nation…. While the government may not coerce private parties to act on its behalf to achieve indirectly what it could not do directly, courts have set a high threshold for finding such coercion to give the government sufficient latitude to “advocate and defend its own policies.” Board of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000).
Here, however, the district court issued a universal injunction with sweeping language that could be read to prohibit (among other things) virtually any government communication directed at social-media platforms regarding content moderation. The court’s belief that the injunction forbids only unconstitutional conduct, while protecting the government’s lawful prerogatives, rested on a fundamentally erroneous conception of the First Amendment, and the court’s effort to tailor the injunction through a series of carveouts cured neither the injunction’s overbreadth nor its vagueness.
Consider, for example, the injunction’s prohibition against “urging, encouraging, pressuring, or inducing” social-media platforms “in any manner” to moderate their content, A159. May federal officials respond to a false story on influential social-media accounts with a public statement, or a statement to the platforms hosting the accounts, refuting the story? May they urge the public to trust neither the story nor the platforms that disseminate it? May they answer unsolicited questions from platforms about whether the story is false if the platforms’ policies call for the removal of falsehoods? No plausible interpretation of the First Amendment would prevent the government from taking such actions, but the injunction could be read to do so.
Or consider how that prohibition might apply to law-enforcement officials, who routinely notify social-media companies of threats or other criminal activity on their platforms. The injunction states that the government may “inform social-media companies of postings involving criminal activity or criminal conspiracies,” A160, but what if, in an investigation’s early stages, officials lack certainty whether a post rises to the level of criminal activity? ….
The injunction threatens to chill this wholly lawful conduct, and to place the Judiciary in the untenable position of superintending the Executive Branch’s communications. It raises grave separation-of-powers concerns….
The thrust of the motion for a stay focuses on the scope of the preliminary injunction, claiming it is overly broad and prohibits speech protected by the First Amendment. That reflects the difficulty of enforcement – how does a court prevent the Orwellian censorship that can come in a myriad of ways? Clearly the District Court Judge understood the deviousness that resulted in the current situation, and tried to fashion a broad remedy to prevent the government from evading his ruling.
The focus on the breadth of the injuction may resonate with an appeals court, and injunctive language is the weakest link in defending this substantively strong decision.DONATE
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