Appeals court temporarily stays order barring Biden officials from colluding with Big Tech

A federal appeals court on Friday temporarily stayed a lower court order restricting Biden administration officials from contacting social media companies because of concerns over suppressing free speech. 

The New Orleans-based 5th US Circuit Court of Appeals ruled in favor of the Justice Department and blocked US District Judge Terry Doughty’s preliminary injunction while the White House appeals the lower court’s order. 

The three-judge panel also agreed to expedite the administration’s appeal. 

Doughty ruled on July 4 that the White House likely violated the First Amendment by flagging content for Big Tech companies to scrub during the COVID-19 pandemic.

The lawsuit against the Biden administration was brought by attorneys general of Louisiana and Missouri last year.  

Doughty, a Trump appointee, denied the Justice Department’s prior request for a stay last week, arguing that his preliminary injunction only prohibited officials from contacting social media companies for the purposes of restricting free speech.

“Although this Preliminary Injunction involves numerous agencies, it is not as broad as it appears,” Doughty wrote. “It only prohibits something the Defendants have no legal right to do — contacting social media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner, the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.”

The DOJ then turned to the 5th Circuit, arguing that Doughty’s ruling could restrict the White House from asking platforms to “act responsibly by disseminating only accurate information” related to a hypothetical natural disaster. 

The Biden administration also argued that Doughty’s injunction may prevent federal law enforcement authorities from contacting social media companies about issues that affect “national security [and] public safety,” such as matters related to the fentanyl crisis and election security. 

The government signaled that if the Fifth Circuit would not grant a stay, it would appeal to the Supreme Court.

“If the Court declines to grant a longer stay, it should at a minimum stay the injunction for ten days to permit the Supreme Court to consider an application for a stay, should the Solicitor General elect to file one,” the DOJ wrote in its filing. 

Homeland Security Secretary Alejandro Mayorkas, Health and Human Services Secretary Xavier Becerra, Surgeon General Vivek Murthy and White House press secretary Karine Jean-Pierre and several federal agencies were among those covered by Doughty’s injunction.