Trump Appointee Refuses to Stay Controversial Order

This is Bloomberg Law with June Brusso from Bloomberg Radio. Louisiana federal judge has refused to put a temporary hold on his controversial order banning federal agencies and officials from communicating with social media companies. Biden administration attorneys had asked Judge Terry Dowdy, a Trump appointee, to stay his nationwide injunction while they pursue an appeal to the Fifth Circuit.

Absolutely so.

The judge found that the plaintiffs were able to meet their burden for the preliminary injunction when it comes to state action. All this means is that when we later consider a Merits decision or Merits opinion, the plaintiffs have done enough to show that this conduct is enough to be enjoined until that merit's decision is heard. The order itself put out several requirements having to do with government interaction with social media.

For the most part, the.

Biden administration defendants are prohibited from communicating with social media companies about content unless it fits into some of the exceptions provided, which were for things such as national security and criminal activity. So that order is currently in place.

Can you tell me why the judge decided why he thinks that the plaintiffs here will win on the merits.

Importantly, what the court was looking for in this case is significant encouragement and coercion from the government. That's the analysis that these judges look for when they are assessing improper state action.

So the court was.

Considering whether any of the government's request to the platforms could be reasonably perceived as threats, for example, to engage in censorship, and from the evidence that was presented and thoroughly discussed throughout the opening of the opinion, the court seemed to agree that there is evidence of significant coercion to engage in censorship from the governments to the tech companies. The court also assessed the extent of the government's overall

The judge find that the bidenminstration was strong arming the companies?

The judge found that there was enough evidence presented to potentially meet that burden required under state action. So in order to then actually determine that significant coercion and encouragement took place on the part of the Biden administration, there

So Judge Dowdy wrote, the present case arguably involves the most massive attack against free speech in United States history. How does he justify that or back that up.

So again it's coming from the extensive evidence that was discussed throughout the opinion. The judge is looking at things like, you know, emails that were sent from Biden.

Administration officials to the social media.

Companies strongly suggesting wrongly wording the government's request to remove content. Additionally, the court cited to the attempts by Biden administration or the suggestions by the Biden administration to impose regulations such as amending or repealing Section two thirty, which of course says, as you know, is the immunity that these services rely on in order to do content moderation in the first place.

So what about the free speech rights of the federal officials who are allegedly making these comments to the social media companies.

There's a question about the beech rights of the government, which is arguably tricky when it comes to drawing a line between when the government can communicate versus when that communication.

Arises to the level of.

Significant colleresion impermissible state action.

So that's one consideration. But there's also another.

Important consideration here, and that is the First Amendment rights of the companies as well, not just the First Amendment rights of the companies to make decisions as to what kind of content they choose to carry or not carry on their services, but potentially also a right to petition

So it goes both ways.

The line is less clear for government officials, but it's pretty glaring for social media companies when it comes to their own engagement, their own voluntary engagement with government.

Was it just the Justice Department that was defending this and could you just summarize their argument the.

Biden administration, the defendants in this case were arguing that their conduct, of course, does not arise to significant encouragement or coercion. To the extent that they're making that argument, they are suggesting that at all times they have requested or reported communications reported content to the social media platforms, but importantly, the decision to remove content has always been

So is it unusual it took this judge a year to rule on this.

I don't think so. I wouldn't be able to speak to the decision making that took place. For this to take a year, I think state action it speaks to the complications that is the state action doctrine.

Doctrine itself is.

Heavily convoluted and heavily contradictory and conflicting with the cases that we've seen in the past.

The bind administration asked the judge to put a temporary hold on the order while it appeals to the Fifth Circuit. The administration argued that the terms of the injunction were overbroad and ambiguous, saying it would leave it up to every individual agency official to have to figure out if certain online speech was or wasn't constitutionally protected. Do you think that was a good argument after reviewing the judges order.

Yes, absolutely, As you just said, what's concerning in this case is that the judge's decision to restrict contact between the administration and social media platforms appears to be overly broad, arbitrary, and contradictory. You know, the Trump appointed judge here directed federal officials to stop notifying social media companies and outside

As you know, there's.

All sorts of content that is on the borders when it comes to criminal content, national security, etc. And so the order is essentially positioned companies either speak with the government or don't speak with the government.

But these exemptions.

Are not going to be enough for there to be a clear decision as to when it is appropriate for government and social media companies to interact.

The Biden administration had asked the judge to stay his nationwide injunction while they pursue an appeal to the Fifth Circuit. Judge Daddy refused to do that. I mean, it's not only that he denied the request for a stay, but he even denied the alternative requests for a seven day pause while it asked the Appeals Court to step in. That just seems mean to me.

I read his order as vindictive, And again it doesn't surprise me only because, well, the same judge who he down the injunction order, who is now deciding whether to stay his injunction. And from the original memo supporting the the injunction, you could pretty much tell that this judge has already determined without more that this is impermissible state action by the Biden administration. And it feels more heavily political than legal here, so I am not surprised by the judge's rejection.

Of this day.

Here did Judge Dowdy add any new reasons for keeping the injunction in place, or did he basically say it's what I said before it's not as and it's not as broad as it appears.

It's the latter.

So Dody kind of stirked hercularly addresses the DOJ's concerns regarding the overbreadth of the order, saying, you know, the order prohibits something that defendants have no legal right to do, which is contacting social media companies for the purposes of urging, encouraging,

And within hours the DOJ filed an appeal with the Fifth Circuit. Tell us a little bit about what the DOJ argued.

So the DJ's request for this limited stay highlighted several concerns, including the District Court's interference with the executive branches powers and duties to communicate with the American public, the plaintiff lack of standing as we've discussed before the district courts in precise state action analysis regarding coercion and significant encouragement, and the overbroad in size.

And imbalanced injunction order as well. The DJ also.

Noted that they would seek an emergency application for stay from the Supreme Court should the Fifth Circuit reject this request.

The DOJ said that this order puts the judiciary in the untenable position of superintending the executive branches communications. I mean, just how would this injunction even be enforced?

That's exactly it. The executive branch has a duty to communicate broadly with the American public about how they can mitigate.

Threats to the nation, as the DJ discussed.

And government officials are also permitted to express views about the world, including whether certain communications, such as from social media companies or news publishers, are false and harmful.

So, given that.

Sort of latitude of the executive branch's duties to advocate for indefend zone policies, there's a reason why we've seen the courts, including the Supreme Court, set such a high threshold for when advocacy be comes coercion or significant encouragement, and here the injunction order impermissively interferes with that duty.

But again, there's already.

An incredibly high standard for these communications, and this order is conflicting with that standard.

I think it seems pretty likely that the Fifth Circuit is going to grant the stay for several reasons, but also because it may be sort of chastened. In the last term, the Supreme Court reverse seven out of nine rulings from the Fifth Circuit, so I'm not sure it wants another case to go up to the Supreme Court.

I would actually be surprised if the Fifth Circuit did not overturn the injunction here, only because from what we've seen again with this Fifth Circuit it with regards to the First Amendment case in the net Choice in Ccia lawsuit regarding First Amendment rights of the services to carry specific content, I would actually suspect that the Fifth Circuit would uphold this injunction based on some of the similar reasoning that they chose to uphold the HB twenty.

Law in Texas.

Have courts been playing an oversized role in mediating fights over how the tech giants moderate what goes on their platforms? I mean, should this be the role of the courts?

I mean, that's the interesting question.

It kind of gets to the heart of this decision because in giving this order, the Court itself is making decisions about what types of speech are acceptable and what types of speech are not acceptable. Again, we're talking about with exemptions that the order presents, and so that begs the question, then, is the court also improperly weighing into editorial discretion when it makes those decision when it sides

And I would venture to say yes in this case certainly.

So let's just talk about the Supreme Court for a moment. Because the Supreme Court delayed a review of Texas and Florida laws that would allow users to sue online platforms for alleged political censorship. Does it seem like the Court will take that up. I'm wondering what the delay is. It seems like a case that's destined to be at the Supreme Court.

Yeah, I mean, reading the tea leaves here, I think that the Court pretty much has to take the Net Choice NCCIA cases up in Texas and Florida. You know, I think there was a lot on the docket, especially with the Gonzales case and the Tamina case and some of the other First Amendment cases we saw earlier this term, and so I think the push to have the Solicitor General way in for the Texas Florida cases was a maneuver to buy time. But this case is teed up between the different state.

Regulations that we've seen come out with.

Regards to forcing services to carry content. Now we have this bided injunction, it seems glaring that the Court will have to make a decision about regulations that attempt to force social media companies private entities to carry First Amendment protected speech.

This is going to the Fifth Circuit, which is one of the most conservative circuits in the country, So who knows what they'll do, But would that be a case for the Supreme Court as well.

I absolutely could see the DOJ pushing this to the Supreme Court because again, the order itself is so broad, and it is creating this hostile environment for both social media companies and government actors when it comes to their ability to collaborate and info gather. But it's also again it brings a lot of First Amendment concerns, as we've discussed, for the government actors themselves, but also for the companies.

To Texas Florida cases in this case as well.

Also, is there a question about the state ags having standing to sue here? Why do they have standing here?

This is a complicated question.

So we're talking about the First Amendment rights of US citizens and in states like Missouri, for example, in Louisiana where.

These cases arose.

The Fourteenth Amendment is what provisions our constitutional First Amendment rights and other rights that are granted by the constitutions for the states as well. And so with regards to a question of state action and impermissively abridging the rights of the users who have had their content removed, whether that be in this case COVID nineteen content or other

Can you talk at all about the case before the Supreme Court whether elected officials violate the First Amendment when they block people from seeing their social media accounts.

Yeah, absolutely so in both of those cases, I believe that's the o'hanley case and the lin Key cases.

In both of those cases they.

Regard government actors removing blocking content and accounts of private US citizens, And it's very similar to this case again with regard to the government has taken an action in that case. And again it's really important to keep in mind here in both cases, in the Spring Court cases and in this injunction order, we're not talking about the conduct of the social media companies. Though the conduct of social media companies can be implicated.

In all three cases.

Here we are talking specifically about government actions on speech. Courts, you know, in the past, have long recognized that state actors, whether they are operating a social media account under their official title or operating it as a personal account, are not able to block content, block accounts remove content that comes from private US citizens, as this would be a violation of the US citizen's right to speech, but also the right to have access to and protest.

The government as well. So similar questions are.

In front of the Supreme Court in the state actor cases.

What will be interesting is.

To see if the Supreme Court agrees that government action here was impermissible when it comes to the government's own decisions to remove content or block some of these accounts, what that will again mean for the social media companies.

I'm wondering, is this an area where Congress should be taking some role instead of leaving it to the courts.

So I think the Constitution itself and existing policy that we have already accounts for this. Again, the First Amendment, it's clear in that it restrains government and state actors from abridging the right to speech of private US citizens. We have a lot of state action doctrine already that gets into the weeds of when broadcasters and publishers do act jointly or are encouraged by state actors to abridge those First Amendment rights. So it's not likely that we need Congress to intervene here.

However, this does present.

Sort of a nuanced situation for state action doctrine and for the First Amendment.

That the courts should be able to resolve.

In the o'hanley case, the Linky case, and even here in the recent injunction order, are there.

Broader implications to Judge Dowdy's order.

The order could open the door for plaintiffs to renew some of their state actor arguments against social media companies, plaintiffs being not just the ones in this case, but as we've seen in previous cases where you know, plate just try to work around section p thirty, you work around the First Amendment.

By suggessing that content.

Removal was that of state action, it really could open the door for them to renew some of those arguments down the road, you know, suggesting that content removals were based on informiscible coercion from the state, and should future courts determine content moderation was the result of informiscible state actions.

Well. Now have to keep watch on what the Fifth Circuit does. Thanks so much for being on the show, Jess. That's Jess Myers's Legal Advocacy Council at the Chamber of Progress. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, And remember to tune into The Bloomberg Law Show every