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Appeals court weighs order on social media content moderation

Lower court had issued an injunction to stop the FBI and other federal entities from communicating with companies to hinder free speech

Louisiana Attorney General Jeff Landry testifies during a March hearing of the House Judiciary Select Subcommittee on the Weaponization of the Federal Government on the case over allegations the government is directing social media companies to censor and suppress Americans' free speech.
Louisiana Attorney General Jeff Landry testifies during a March hearing of the House Judiciary Select Subcommittee on the Weaponization of the Federal Government on the case over allegations the government is directing social media companies to censor and suppress Americans' free speech. (Tom Williams/CQ Roll Call)

An appellate court panel heard arguments Thursday about a lower-court ruling that would restrict the Biden administration’s ability to interact with social media companies on content moderation.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit weighed whether to allow a district court’s preliminary injunction to go into effect as the case works through the courts.

That injunction, which the 5th Circuit has paused for now, would block various federal government entities from contacting in any form social media companies to remove content with “protected free speech.”

The panel, which reserved its most probing questions for the Justice Department, did not indicate when it might rule.

The arguments were the latest in a high-profile legal dispute that’s caught the attention of House Republicans, a group of whom filed a brief in the case earlier this week asking the appellate court to uphold the district court order.

Republican attorney generals in Missouri and Louisiana filed the lawsuit last year against members of the Biden administration. The litigation claimed the federal government colluded with social media companies to suppress certain content under the guise of stopping disinformation.

The panel on Thursday gave no full endorsement of the district court order, but questioned why the Justice Department contends the lower-court judgment is broad, unclear and can be interpreted as banning government officials from lawful and responsible conduct.

“The district court said permissible public government speech was — on matters of public concern — was exempt,” Justice Department attorney Daniel Tenny told the panel. “I have no idea what that means. The inclusion of the word permissible seems to make it impossible for us to figure it out.”

Judge Don R. Willett said it seems perfectly fine for the government to publicly call out a person for posting something that the government thinks is false or dangerous. But he said this case involves the government privately relying on unsubtle strong-arming.

“I’m struck by the fact that this case involves government’s private communications with social media companies,” Willett said.

The Republican attorney generals contend in the lawsuit that federal officials threatened to pull back legal benefits for social media platforms, such as a sweeping immunity law for internet companies known as Section 230, if they did not censor certain viewpoints on their platforms.

Their lawsuit also claimed that the federal government went after conservative-leaning free speech about the coronavirus vaccine, according to a ruling by Judge Terry Doughty, a Trump-appointee in the U.S. District Court for the Western District of Louisiana.

Doughty issued a judgment in the case last month that would block the FBI, the Department of Health and Human Services and other federal entities from communicating with social media companies “urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech.”

In court filings, the Justice Department said the order can be read in a way that prevents government officials from working with social media companies “on initiatives to prevent grave harm to the American people and our democratic processes.”

Accusations of anti-conservative bias on social media platforms have become an intense and often-highlighted grievance for congressional Republicans, who posit the companies have unfairly suppressed conservative viewpoints, either working in tandem or at the behest of the Biden administration.

House Judiciary Chairman Jim Jordan, R-Ohio, was among the group of House Republicans who urged the 5th Circuit to uphold the preliminary injunction, arguing that official pressure to suppress speech violates First Amendment protection.

“On issue after issue, the Biden Administration has distorted the free marketplace of ideas promised by the First Amendment, bringing the weight of federal authority to bear on any speech it dislikes,” the members of Congress argued in a filing.

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