The Biden administration’s battle with Republican-led states over free-speech limits escalated with its appeal of a judge’s sweeping order barring federal officials and agencies from communicating with social media companies over postings they deem objectionable. It’s the latest example of the judiciary flexing its muscles in cases testing the bounds of the First Amendment online.
(Bloomberg) — The Biden administration’s battle with Republican-led states over free-speech limits escalated with its appeal of a judge’s sweeping order barring federal officials and agencies from communicating with social media companies over postings they deem objectionable. It’s the latest example of the judiciary flexing its muscles in cases testing the bounds of the First Amendment online.
The US Justice Department filed a notice of appeal in federal court in Louisiana on Wednesday, signaling its intent to take the fight to the 5th US Circuit Court of Appeals in New Orleans.
The DOJ also plans to ask the court to put the judge’s order on hold during the appeal, according to a person familiar with the case. The case could swiftly land before the US Supreme Court if the government’s request is rejected.
Courts have played a star role mediating fights in recent years over how tech giants moderate what goes on their platforms. With federal law largely shielding companies against being sued over what’s posted online, challengers have increasingly shifted the legal fight to the constitutional arena, probing the relationship between the government and the private sector.
US District Judge Terry Doughty’s injunction on Tuesday represents a break with judges who have been wary of extending the First Amendment’s speech protections to content decisions made by companies, even in situations where government officials tried to exert influence, said Genevieve Lakier, a constitutional law expert at the University of Chicago Law School.
“I was shocked,” said Lakier, who had been following the litigation. “It’s just so broad.”
Doughty, who was nominated by former President Donald Trump, prohibited a wide swath of the Biden administration from contacting tech giants about an array of subjects related to how they manage content. The judge held that the challengers – Republican attorneys general of Missouri and Louisiana and individual users – were likely to win their lawsuit over steps the administration took to limit the spread of misinformation and fake accounts online, especially during the pandemic.
“Our view remains that social media platforms have a critical responsibility to take action or to take account of the effects of their platforms,” White House Press Secretary Karine Jean-Pierre said Wednesday.
Conservatives who have long complained that they’re unfairly targeted when it comes to online moderation praised Doughty’s order.
However, First Amendment advocates expressed concern about the breadth of the injunction and questioned how it could be enforced.
Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said the appeals court should at least narrow the scope of Doughty’s order, warning that it would stop government actors from even criticizing social media companies.
The injunction features exceptions if the government wants to communicate with tech companies about content related to national security, public safety, and election security — categories that some experts say the government could argue apply to the content at issue in the case.
John Vecchione of the New Civil Liberties Alliance, a lead attorney for the individual plaintiffs, said that Doughty’s order appeared “unprecedented” in the social media space, but courts historically had stepped in to stop the government from interfering with print publishers.
Other fights over how the First Amendment applies to social media platforms continue to work through the courts. Last month, Vecchione argued before the 6th Circuit on behalf of individuals who sued the Biden administration after they were suspended from Twitter for pandemic-related posts. A federal judge dismissed the suit, finding the plaintiffs failed to show a relationship between the government’s actions and Twitter’s decisions.
Stepping into the vacuum
Absent tighter regulations and action from Congress, courts repeatedly have been asked to step in to decide when companies are liable for what’s shared on their platforms and when, if ever, the Constitution’s free speech protections apply.
The US Supreme Court is set to barrel headfirst into questions around online speech next term. The justices will likely hear cases challenging laws in Texas and Florida that regulate what kind of speech social media companies can remove. Texas won in the 5th Circuit while Florida lost before the 11th Circuit. The Supreme Court punted on dealing with those cases this term, asking the US Solicitor General to weigh in.
The high court is also set to hear cases about whether elected officials violate the First Amendment when they block people from seeing their social media accounts. Similar cases have been moving through the courts for years. Trump lost such a case when he was in the White House, though the Supreme Court later dismissed it as moot, leaving the underlying issues unsettled.
Trump more recently has been pursuing a First Amendment challenge to his permanent suspension from Twitter following the Jan. 6, 2021, attack on the US Capitol. He sued Twitter and the US government, claiming officials coerced the company into censoring him. A California federal judge dismissed the suit and Trump appealed. The 9th Circuit has yet to hear the case.
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