A Trump-appointed district court judge denied the administration’s request to pause his sweeping ruling preventing many government entities from flagging social media misinformation to the platforms Monday, claiming that those being “censored” suffered far a greater injury than the government.
The Justice Department had asked that the injunction — which prevents wide swaths of the government from flagging posts to such tech behemoths as Twitter, Facebook, Instagram, YouTube and Google — be stayed pending appeal, or at least be administratively stayed for seven days. The DOJ had already appealed the case to the Fifth Circuit Court of Appeals.
A mere two hours after the district judge shot it down, the Justice Department made a similar request of the Fifth Circuit: a stay pending appeal as the top priority, an administrative stay as a backup and, if the Fifth Circuit denies the request, a 10-day stay to give the DOJ time to ask the Supreme Court to pause the injunction instead.
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 DOJ writes in its emergency motion for the Fifth Circuit.
It adds that the injunction “reflects numerous legal errors” and that its scope is an “abuse of discretion.”
The DOJ also offers the court a middle-ground option, asking that it, at the very least, restrict the injunction to content posted by the couple of red state and individual plaintiffs instead of “burdening a vast universe of government actions lacking any connection to plaintiffs.”
Judge Terry Doughty, the district judge the rejected the DOJ’s appeal earlier on Monday, had little sympathy for the government’s plight.
“Plaintiffs 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.”
Doughty, a reliably anti-Biden administration judge, had in hyperbolic terms referred to the administration’s attempt to restrict COVID-19 misinformation as “Orwellian” and “dystopian” in his ruling last week. In his new stay denial, he reiterated some of the same examples of government “censorship” he raised in his initial ruling, most of which were related to anti-vaxxer content.
Among the government’s complaints is that the injunction is so staggeringly far-reaching, applying to individual government officials as well as multiple entire agencies, including Health and Human Services, the FBI and Centers for Disease Control.
“Although this Preliminary Injunction involves numerous agencies, it is not as broad as it appears,” Doughty insisted, pointing to the exemptions in his ruling, including for dangerous posts that threaten national security.
The injunction has been widely panned as distorting the meaning of freedom of speech and the protections provided by the First Amendment.
The case may ultimately be headed for the Supreme Court.
The case is just the latest in the well-worn path anti-administration litigants have recently taken: Trump district judge, usually in Louisiana or Texas, to the 5th Circuit and on to the Supreme Court — all exceptionally friendly venues for right-wing causes. This path has given such litigants at least temporary wins on everything from abortion to the Affordable Care Act.
Congressional Democrats are increasingly aware of this trend, but there’s neither urgency behind a fix nor a feasible legislative path to achieve it given the Republican House majority.
Read the stay denial here:
Read the DOJ’s subsequent appeal to the Fifth Circuit here: