The Justice Department asked the U.S. Court of Appeals for the 5th Circuit on Monday to stay a preliminary injunction that puts extraordinary limits on government communications with social media companies, arguing that the sweeping order could chill law enforcement activity to protect national security interests.
The 22-page request came just hours after U.S. District Judge Terry A. Doughty denied the Justice Department’s request for a stay. Doughty imposed the preliminary injunction limiting government communications with social media companies July 4.
The Justice Department’s filing signaled that it could seek the intervention of the Supreme Court, saying that at a minimum, the 5th Circuit should put the order on pause for 10 days to give the nation’s highest court time to consider an application for a stay.
In its filing, the Justice Department warned that the injunction could bar a wide swath of communications between the government and the tech industry, stopping the president, for instance, from denouncing misinformation about a natural disaster circulating online.
It also said the order has the potential to disrupt communications about the fentanyl crisis or the security of federal elections, warning that it creates legal uncertainty that could lead to “disastrous delays” in responding to misinformation.
In rejecting the Justice Department’s request that he stay his order, Doughty said that the order creates exceptions for communications related to criminal activity, national security threats, cyberattacks and foreign attempts to interfere in elections, and that the Biden administration did not cite any specific examples in which the injunction’s limits on communications “would provide grave harm to the American people or our democratic processes.”
“Although this Preliminary Injunction involves numerous agencies, it is not as broad as it appears,” Doughty, a Trump-appointed judge, wrote in his denial of the stay. “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.”
But the Justice Department’s appeal to the 5th Circuit said those “carveouts cured neither the injunction’s overbreadth nor its vagueness.”
“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?” the request asks. “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.”
Civil rights groups, academics and tech industry officials say the order — which places restrictions on more than a dozen health and law enforcement agencies and officials across the federal government — could undermine work to address disinformation on social media. They warn that the judge’s injunction could unravel efforts to protect U.S. elections that were developed after revelations of Russian interference in the 2016 election.
In issuing the injunction, Doughty said the Republican state attorneys general who brought the lawsuit are likely to prove that a variety of government agencies and officials “coerced, significantly encouraged, and/or jointly participated” in suppressing social media posts that included anti-vaccination views and questioned the results of the 2020 elections.
The State Department last week canceled a meeting about 2024 election preparations with Facebook’s parent company, Meta, in the wake of Doughty’s injunction.
On Monday, state election officials said they would continue their efforts to address online disinformation, despite the injunction. Minnesota Secretary of State Steve Simon criticized the injunction Monday morning but said it was unlikely to affect his office’s efforts, which include communicating with social media platforms and operating a facts vs. myths website that debunks common falsehoods about voting.
“It strikes me as overly broad and intentionally counterproductive in terms of the work that all of us do to push back against disinformation,” Simon said. Still, he noted that the suit was rooted in part in an argument that the federal government’s regulatory role gave it leverage that his office doesn’t have.
“We don’t have guns and badges. There are no penalties we can impose. There is no license we can revoke or suspend,” he said. “We’re in the democracy business, not in the regulatory business.”
Al Schmidt, Pennsylvania’s top election official, said he too does not expect any changes in his state’s plans to counter election misinformation.
“It’s too early to tell and too difficult to predict” whether legal challenges will eventually present obstacles at the state level, said Schmidt, a Republican appointed to his post by Democratic Gov. Josh Shapiro. “It’s certainly something that we’re going to keep an eye on, but I don’t anticipate right now it having any effect on our efforts to combat misinformation in the election space.”