5th Circuit Shouldn’t Let Social-Media Injunction ‘Take Effect Again,’ Says DOJ
The plaintiffs’ July 17 opposition to the government’s motion to stay the July 4 injunction barring dozens of Biden administration officials from conversing with social media platforms about content moderation (see 2307180005) “underscores why the injunction should remain stayed pending the resolution of this highly expedited appeal,” said DOJ’s reply Monday (docket 23-30445) at the 5th U.S. Circuit Court of Appeals in support of the stay.
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The lead plaintiffs are the Republican attorneys general of Louisiana and Missouri. Under the expedited briefing schedule, DOJ’s opening brief was due Tuesday, with the plaintffs’ answering briefing due Aug. 4 and DOJ’s reply, Aug. 8. Oral argument is scheduled for Aug. 10 at 1 p.m. CDT in New Orleans.
The plaintiffs, in their opposition to the stay, “make little effort to defend the district court’s primary theory of standing” for the state plaintiffs, said DOJ’s reply. It’s a parens patriae (parent of the country) theory that the U.S. Supreme Court “recently and repeatedly rejected,” it said. The plaintiffs “ignore the bedrock principle that a past injury is insufficient to establish the imminent threat of future injury required for jurisdiction over a claim for prospective relief,” it said.
The plaintiffs invoke the “novel theory” that they established a sufficient injury because they want to listen “to all speech, anywhere, on any platform, on any subject,” said DOJ. But the district court “declined to rely on that argument, for good reason,” it said. If it were right, “a court could entertain any First Amendment claim at the behest of a single plaintiff whose only connection to it was the desire to hear the relevant speech,” it said.
On the merits, the plaintiffs’ repetition of the supposedly “overwhelming evidence” of government “coercion” on the social media platforms to censor right-leaning content “fails to remedy the factual and legal deficiencies of the district court’s analysis,” said DOJ. Like the district court, the plaintiffs “err by confusing persuasion with coercion and making factual assertions that are unmoored from the record,” it said.
The plaintiffs’ efforts to defend the injunction’s breadth “only underscore its deficiencies,” said DOJ. The plaintiffs’ right to listen theory is “insufficient” to support jurisdiction, “much less broad relief,” it said. The plaintiffs “tie themselves in knots” trying to maintain the “false distinction” between the government’s right to speak freely, which they purport to respect, “and the conduct forbidden by the injunction,” it said.
The plaintiffs insist, on the one hand, the injunction clearly permits the government to respond to a false social-media story with a public statement refuting the story and urging the public not to trust it, said DOJ. Yet they “approvingly cite” case law in which the defendants “likely violated the Constitution by doing exactly that,” it said.
The plaintiffs’ effort to defend the injunction’s specificity “fails to address the fundamental concerns identified in our motion,” said DOJ. The problem with terms like “permissible public government speech” isn’t that dictionaries fail to define those words, it said. It’s that a government official “would have no clue what speech qualifies as ‘permissible,’” it said. The 5th Circuit shouldn’t permit the injunction “to take effect again,” it said. If the court declines to maintain its stay of the injunction, it should extend the current administrative stay for 10 days to permit the Supreme Court “to consider any application for a stay” that the solicitor general “may elect to file,” it said.