from the doughty’s-distracted-disasters dept
So we wrote about Judge Terry Doughty’s somewhat questionable ruling preventing the Biden White House from communicating with tech companies or researchers regarding certain areas of disinformation. As we noted, there were some good elements in the ruling, reminding government officials of the 1st Amendment restrictions on coercion in attempting to silence protected speech.
But there were also plenty of extremely problematic elements to the ruling, including the lack of any clear standard by which the government might determine what is allowed and what is forbidden. As we noted, the injunction bars the government from talking about some things, but has exceptions for a bunch of other things. Except, it seems pretty clear that every example that Doughty cited as a problematic example could easily fit into the exceptions he outlined. And that’s a recipe for serious chilling effects on protected speech.
Even worse, we noted that Doughty literally inserted words into a quote to make it say something it never said. He flat out falsified a quote from a Stanford researcher, pretending she said they had set up the Election Integrity Partnership to “get around” the 1st Amendment, when the actual quote from her does not say anything about “getting around” the 1st Amendment, but was literally a statement of fact regarding the 1st Amendment limits on the government’s ability to do things.
Also, I had highlighted how there were emails from Rob Flaherty in the White House that I felt went too far, in angrily demanding that tech companies “explain” certain decisions they had made. At no point should a government official demand an explanation from a media organization about its editorial choices. But, as others have pointed out, the context of Flaherty’s angry email was totally misrespresented by Doughty. His demand for an explanation was not (as implied in the filings) about why certain accounts hadn’t been actioned/removed/etc. but rather about a bug in Facebook’s recommendation engine that removed the President’s account, limiting its growth.
Now… I still think that Flaherty’s email was a massive overreach. The President’s account has no inherent right to be regularly recommended by any recommendation engine, but the context here shows that it had zero to do with trying to take down or moderate accounts. In the context of the judge’s decision, you’d never know that all.
Either way, we’d already seen real world problems stemming from this decision as various government officials were cancelling important meetings with tech companies that had nothing whatsoever to do with content moderation or censorship, because of a fear that it would be seen to violate the law.
The DOJ quickly appealed the ruling, and asked Judge Doughty for a stay on the injunction until the appeal was heard. Granting such a stay is generally seen as standard practice. The plaintiffs in the case filed a brief opposing the stay, and even though the court told the plaintiffs that their filing was deficient (for a small technical reason) Judge Doughty issued his ruling rejecting the request for the stay before the plaintiffs even filed their corrected motion. You can see that the rejection is document number 301 in the docket, where the corrected opposition was document number 303, filed after the motion was already ruled on.
As with Doughty’s original ruling, the ruling rejecting the stay is filled with a lot of misleading and hyperbolic language. He insists that his ruling could not possibly cause harm, because of the exceptions he listed out (ignoring that every single example of speech he complained about easily and obviously fits into those exceptions):
The Preliminary Injunction also has several exceptions which list things that are NOT prohibited. The Preliminary Injunction allows Defendants to exercise permissible public government speech promoting government policies or views on matters of public concern, to inform social-media companies of postings involving criminal activity, criminal conspiracies, national security threats, extortion, other threats, criminal efforts to suppress voting, providing illegal campaign contributions, cyber-attacks against election infrastructure, foreign attempts to influence elections, threats against the public safety or security of the United States, postings intending to mislead voters about voting requirements, procedures, preventing or mitigating malicious cyber activity, and to inform social-media companies about speech not protected by the First Amendment.
Anyway, even the notoriously ridiculous 5th Circuit found Doughty’s move here to be a step too far, very quickly rejected his refusal to grant a stay, and did so in his stead. They also expedited the case to speed up the process.
IT IS ORDERED that this appeal is EXPEDITED to the next available Oral Argument Calendar.
IT IS FURTHER ORDERED that a temporary administrative stay is GRANTED until further orders of the court.
IT IS FURTHER ORDERED that Appellants’ opposed motion for stay pending appeal is deferred to the oral argument merits panel which receives this case.
That’s the entirety of the ruling, but basically the injunction is put on hold. For the time being, the government can again talk to social media companies and researchers. Of course, they cannot talk to them about “censorship” because that has always been barred by the 1st Amendment. At least for the time being, though, they should be free to talk to them about legitimate, non-problematic efforts towards harm reduction.
Filed Under: 1st amendment, 5th circuit, content moderation, jawboning, joe biden, louisiana, missouri, social media, terry doughty
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