US District Judge Terry Doughty has issued a ruling that hinders the Biden administration’s ability to communicate with social media companies. The decision came about as a result of a lawsuit filed by a diverse group of individuals and entities, including Robert F. Kennedy Jr. and the attorneys general of Missouri and Louisiana, who alleged that their First Amendment rights were being suppressed.
Central to the plaintiffs’ argument is the claim that the government implicitly threatened to repeal Section 230 of the Communications Decency Act, which shields websites from liability for user-generated content. Thus, they contend that social media platforms were coerced into acting as government agents by removing content related to anti-vaccine and election misinformation. However, there is little evidence to support such a threat from the Biden administration, and it is worth noting that the push for § 230 repeal has been attributed primarily to Republicans.
The notion that websites can be deemed government actors based on their enforcement of terms of service has been repeatedly rejected by numerous courts. It is important to recognize that most of these decisions came from the Ninth Circuit, thanks to terms of service forum selection clauses. In this case, however, the plaintiffs strategically sued only the government, thereby allowing them to take advantage of the jurisdiction of the Western District of Louisiana.
Despite a year-long period of discovery and the absence of imminent content suppression, Judge Doughty granted “emergency” injunctive relief to the plaintiffs. This ruling prohibited the government from engaging in any form of communication that would urge or pressure social media companies to remove or suppress content protected by the First Amendment. When the government sought a stay pending appeal, Judge Doughty declined, asserting that any violation of a constitutional right, even if brief, constitutes irreparable harm.
Following the government’s request for emergency appellate relief, the Fifth Circuit issued a brief administrative order staying Judge Doughty’s ruling and expediting the appeal. The order directs that the case be expedited for oral argument and temporarily halts any further actions until the court provides further instructions.
The legal battle over the government’s relationship with social media companies and its impact on free speech continues to unfold. Judge Doughty’s attempt to safeguard free speech through what some view as a significant prior restraint on speech has, for now, been put on hold. The appeal process will shed further light on the pivotal issues at hand.
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