Fifth Circuit pauses order restricting Biden administration’s tech contacts

The 5th Circuit Court of Appeals on Friday granted a temporary stay of a July 4 order putting sweeping limitations on the Biden administration’s communications with social media companies.

The stay was granted by a panel of 5th Circuit judges, which includes Clinton-appointee Carl E. Stewart, Obama-appointee James E. Graves and Trump-appointee Andrew S. Oldham. Oldham last year wrote an opinion upholding a Texas social media law, which bars social media companies from removing posts based on a person’s political ideology.

The stay comes after a request last week from the Biden Department of Justice, which warned U.S. District Judge Terry A. Doughty’s order could chill law enforcement activity to protect national security interests.

The stay is the latest twist in a partisan legal battle over the future of content moderation – litigation that could have profound effects on the First Amendment.

In his order last week, Doughty said Republicans were likely to prevail in the efforts to show key Biden administration officials and agencies ran afoul of Americans’ constitutional protections. The broad injunction responds to a lawsuit from Republican attorneys general, who allege that government officials went too far in efforts to encourage social media companies to address posts they considered harmful – potentially contributing to vaccine hesitancy during the pandemic or upend elections.

The lawsuit hinges on emails between the Biden administration and tech companies, where White House officials and representatives from other government agencies pressed social media companies on their handling of social media posts, often about anti-vaccination views during the height of the pandemic. The state attorneys general argue that the Biden White House overstepped when it threatened to take antitrust action against the companies or undo Section 230, a legal shield that protects tech giants from lawsuits.

Doughty’s order prohibited key Biden administration agencies and officials from meeting and communicating with social media companies about “protected free speech.” The Justice Department has argued this is an overly broad restriction, which could result in the government being unable to warn people about falsehoods on social media in times of emergency, even blocking the president from warning people of falsehoods during a natural disaster.

“We remain confident in the strength of our case, and look forward to further exposing the largest First Amendment violation in American history,” said Madeline Sieren, a spokeswoman for Missouri attorney general Andrew Bailey, who brought the lawsuit along with Louisiana attorney general Jeff Landry.

Civil rights groups, academics and tech industry insiders say the order risks dismantling years of work to enhance coordination between the U.S. government and social media companies, as the federal government responded to rising election interference and voter suppression efforts after revelations that Russian actors had sowed disinformation on U.S. social sites during the 2016 election.

The order could upend efforts to secure the 2024 elections, civil rights groups and legal experts say. There were early signs of the chilling effect: The State Department canceled a planned meeting with Facebook parent company Meta, where they were scheduled to discuss information sharing to counter foreign disinformation overseas.

Doughty, a Trump-appointed judge, denied the DOJ’s motion for a stay of his order. He said at the time 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.”