Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: Louisiana federal judge has refused to put a temporary hold
Speaker 1: on his controversial order banning federal agencies and officials from
Speaker 1: communicating with social media companies. Biden administration attorneys had asked
Speaker 1: Judge Terry Dowdy, a Trump appointee, to stay his nationwide
Speaker 1: injunction while they pursue an appeal to the Fifth Circuit.
Speaker 1: After a year long delay, the judge had issued the
Speaker 1: order on July fourth, giving a victory to Republican attorneys
Speaker 1: general in Missouri and Louisiana and concluding that the government
Speaker 1: likely violated the First Amendment in its efforts to persuade
Speaker 1: tech companies to take steps to limit the spread of
Speaker 1: misinformation and fake accounts, especially during the pandemic. Joining me
Speaker 1: is Jess Meyer's Legal Advocacy Council at the Chamber of Progress.
Speaker 1: Just I want to start with the July five fourth opinion,
Speaker 1: which is one hundred and fifty five pages. Can you
Speaker 1: summarize his findings for us?
Speaker 2: Absolutely so.
Speaker 3: The judge found that the plaintiffs were able to meet
Speaker 3: their burden for the preliminary injunction when it comes to
Speaker 3: state action. All this means is that when we later
Speaker 3: consider a Merits decision or Merits opinion, the plaintiffs have
Speaker 3: done enough to show that this conduct is enough to
Speaker 3: be enjoined until that merit's decision is heard. The order
Speaker 3: itself put out several requirements having to do with government
Speaker 3: interaction with social media.
Speaker 2: For the most part, the.
Speaker 3: Biden administration defendants are prohibited from communicating with social media
Speaker 3: companies about content unless it fits into some of the
Speaker 3: exceptions provided, which were for things such as national security
Speaker 3: and criminal activity. So that order is currently in place.
Speaker 1: Can you tell me why the judge decided why he
Speaker 1: thinks that the plaintiffs here will win on the merits.
Speaker 3: Importantly, what the court was looking for in this case
Speaker 3: is significant encouragement and coercion from the government. That's the
Speaker 3: analysis that these judges look for when they are assessing
Speaker 3: improper state action.
Speaker 2: So the court was.
Speaker 3: Considering whether any of the government's request to the platforms
Speaker 3: could be reasonably perceived as threats, for example, to engage
Speaker 3: in censorship, and from the evidence that was presented and
Speaker 3: thoroughly discussed throughout the opening of the opinion, the court
Speaker 3: seemed to agree that there is evidence of significant coercion
Speaker 3: to engage in censorship from the governments to the tech companies.
Speaker 3: The court also assessed the extent of the government's overall
Speaker 3: involvement in the platform's content moderation decisions. And again it
Speaker 3: presents a question as to you know, what is the
Speaker 3: extent that the government is just rotely requesting or reporting
Speaker 3: that content should be taken down versus strong arming the
Speaker 3: companies for example, And did.
Speaker 1: The judge find that the bidenminstration was strong arming the companies?
Speaker 3: The judge found that there was enough evidence presented to
Speaker 3: potentially meet that burden required under state action. So in
Speaker 3: order to then actually determine that significant coercion and encouragement
Speaker 3: took place on the part of the Biden administration, there
Speaker 3: would have to be a merits discussion. The Court now,
Speaker 3: in granting this preliminary injunction, has found that there is
Speaker 3: enough evidence to reasonably decide to enjoin the actions between
Speaker 3: the government and social media companies as we wait for
Speaker 3: a Merit's decision.
Speaker 1: So Judge Dowdy wrote, the present case arguably involves the
Speaker 1: most massive attack against free speech in United States history.
Speaker 1: How does he justify that or back that up.
Speaker 3: So again it's coming from the extensive evidence that was
Speaker 3: discussed throughout the opinion. The judge is looking at things like,
Speaker 3: you know, emails that were sent from Biden.
Speaker 2: Administration officials to the social media.
Speaker 3: Companies strongly suggesting wrongly wording the government's request to remove content. Additionally,
Speaker 3: the court cited to the attempts by Biden administration or
Speaker 3: the suggestions by the Biden administration to impose regulations such
Speaker 3: as amending or repealing Section two thirty, which of course says,
Speaker 3: as you know, is the immunity that these services rely
Speaker 3: on in order to do content moderation in the first place.
Speaker 3: So these types of suggestions and what could be perceived
Speaker 3: as threats is what the court was really honing in
Speaker 3: on when it was making a decision that it thinks
Speaker 3: there is enough evidence there to suggest that state action occurred.
Speaker 1: So what about the free speech rights of the federal
Speaker 1: officials who are allegedly making these comments to the social
Speaker 1: media companies.
Speaker 3: There's a question about the beech rights of the government,
Speaker 3: which is arguably tricky when it comes to drawing a
Speaker 3: line between when the government can communicate versus when that communication.
Speaker 2: Arises to the level of.
Speaker 3: Significant colleresion impermissible state action.
Speaker 2: So that's one consideration. But there's also another.
Speaker 3: Important consideration here, and that is the First Amendment rights
Speaker 3: of the companies as well, not just the First Amendment
Speaker 3: rights of the companies to make decisions as to what
Speaker 3: kind of content they choose to carry or not carry
Speaker 3: on their services, but potentially also a right to petition
Speaker 3: the government as well. These companies have a right to
Speaker 3: communicate with their government representatives when it comes to trying
Speaker 3: to become informed to make decisions about some of this edgier,
Speaker 3: trickier content that they're making decisions on.
Speaker 2: So it goes both ways.
Speaker 3: The line is less clear for government officials, but it's
Speaker 3: pretty glaring for social media companies when it comes to
Speaker 3: their own engagement, their own voluntary engagement with government.
Speaker 1: Was it just the Justice Department that was defending this
Speaker 1: and could you just summarize their argument the.
Speaker 3: Biden administration, the defendants in this case were arguing that
Speaker 3: their conduct, of course, does not arise to significant encouragement
Speaker 3: or coercion. To the extent that they're making that argument,
Speaker 3: they are suggesting that at all times they have requested
Speaker 3: or reported communications reported content to the social media platforms,
Speaker 3: but importantly, the decision to remove content has always been
Speaker 3: left up to the social media platforms. So the government
Speaker 3: is essentially arguing that simply submitting request to the social
Speaker 3: media companies about content is not enough to arise the
Speaker 3: level of coercion that we have seen the Supreme Court
Speaker 3: and other courts before determined for state action.
Speaker 1: So is it unusual it took this judge a year
Speaker 1: to rule on this.
Speaker 3: I don't think so. I wouldn't be able to speak
Speaker 3: to the decision making that took place. For this to
Speaker 3: take a year, I think state action it speaks to
Speaker 3: the complications that is the state action doctrine.
Speaker 2: Doctrine itself is.
Speaker 3: Heavily convoluted and heavily contradictory and conflicting with the cases
Speaker 3: that we've seen in the past.
Speaker 1: The bind administration asked the judge to put a temporary
Speaker 1: hold on the order while it appeals to the Fifth Circuit.
Speaker 1: The administration argued that the terms of the injunction were
Speaker 1: overbroad and ambiguous, saying it would leave it up to
Speaker 1: every individual agency official to have to figure out if
Speaker 1: certain online speech was or wasn't constitutionally protected. Do you
Speaker 1: think that was a good argument after reviewing the judges order.
Speaker 3: Yes, absolutely, As you just said, what's concerning in this
Speaker 3: case is that the judge's decision to restrict contact between
Speaker 3: the administration and social media platforms appears to be overly broad, arbitrary,
Speaker 3: and contradictory. You know, the Trump appointed judge here directed
Speaker 3: federal officials to stop notifying social media companies and outside
Speaker 3: re researchers of problematic content. Of course, while that order
Speaker 3: made some exceptions, as we've discussed, for crime, national security,
Speaker 3: and attempts to suppress voter rights, a lot of these
Speaker 3: exemptions are in fact contradictory. So, for example, the exemption
Speaker 3: allowing the government to exercise permissible public government speech conflicts
Speaker 3: with the judge's conclusion that statements by the Surgeon General
Speaker 3: and the White House Press Secretary violated the First Amendment.
Speaker 2: As you know, there's.
Speaker 3: All sorts of content that is on the borders when
Speaker 3: it comes to criminal content, national security, etc. And so
Speaker 3: the order is essentially positioned companies either speak with the
Speaker 3: government or don't speak with the government.
Speaker 2: But these exemptions.
Speaker 3: Are not going to be enough for there to be
Speaker 3: a clear decision as to when it is appropriate for
Speaker 3: government and social media companies to interact.
Speaker 1: The Biden administration had asked the judge to stay his
Speaker 1: nationwide injunction while they pursue an appeal to the Fifth Circuit.
Speaker 1: Judge Daddy refused to do that. I mean, it's not
Speaker 1: only that he denied the request for a stay, but
Speaker 1: he even denied the alternative requests for a seven day
Speaker 1: pause while it asked the Appeals Court to step in.
Speaker 1: That just seems mean to me.
Speaker 3: I read his order as vindictive, And again it doesn't
Speaker 3: surprise me only because, well, the same judge who he
Speaker 3: down the injunction order, who is now deciding whether to
Speaker 3: stay his injunction. And from the original memo supporting the
Speaker 3: the injunction, you could pretty much tell that this judge
Speaker 3: has already determined without more that this is impermissible state
Speaker 3: action by the Biden administration. And it feels more heavily
Speaker 3: political than legal here, so I am not surprised by
Speaker 3: the judge's rejection.
Speaker 2: Of this day.
Speaker 1: Here did Judge Dowdy add any new reasons for keeping
Speaker 1: the injunction in place, or did he basically say it's
Speaker 1: what I said before it's not as and it's not
Speaker 1: as broad as it appears.
Speaker 2: It's the latter.
Speaker 3: So Dody kind of stirked hercularly addresses the DOJ's concerns
Speaker 3: regarding the overbreadth of the order, saying, you know, the
Speaker 3: order prohibits something that defendants have no legal right to do,
Speaker 3: which is contacting social media companies for the purposes of urging, encouraging,
Speaker 3: or pressuring companies to engage in content moderation. But it
Speaker 3: doesn't address DOJ's arguments that all of the examples provided
Speaker 3: in the complaint do not arise to urging encouraging coercion
Speaker 3: significant encouragement that the court is supposed to assess here.
Speaker 3: So it's exactly that the judge did not issue any
Speaker 3: new reasoning in rejecting their stay application and instead just
Speaker 3: kind of used circular logic to explain why the order
Speaker 3: should stay.
Speaker 1: And within hours the DOJ filed an appeal with the
Speaker 1: Fifth Circuit. Tell us a little bit about what the
Speaker 1: DOJ argued.
Speaker 3: So the DJ's request for this limited stay highlighted several concerns,
Speaker 3: including the District Court's interference with the executive branches powers
Speaker 3: and duties to communicate with the American public, the plaintiff
Speaker 3: lack of standing as we've discussed before the district courts
Speaker 3: in precise state action analysis regarding coercion and significant encouragement,
Speaker 3: and the overbroad in size.
Speaker 2: And imbalanced injunction order as well. The DJ also.
Speaker 3: Noted that they would seek an emergency application for stay
Speaker 3: from the Supreme Court should the Fifth Circuit reject this request.
Speaker 1: The DOJ said that this order puts the judiciary in
Speaker 1: the untenable position of superintending the executive branches communications. I mean,
Speaker 1: just how would this injunction even be enforced?
Speaker 3: That's exactly it. The executive branch has a duty to
Speaker 3: communicate broadly with the American public about how they can mitigate.
Speaker 2: Threats to the nation, as the DJ discussed.
Speaker 3: And government officials are also permitted to express views about
Speaker 3: the world, including whether certain communications, such as from social
Speaker 3: media companies or news publishers, are false and harmful.
Speaker 2: So, given that.
Speaker 3: Sort of latitude of the executive branch's duties to advocate
Speaker 3: for indefend zone policies, there's a reason why we've seen
Speaker 3: the courts, including the Supreme Court, set such a high
Speaker 3: threshold for when advocacy be comes coercion or significant encouragement,
Speaker 3: and here the injunction order impermissively interferes with that duty.
Speaker 3: So in order to enforce it, there would again have
Speaker 3: to be a threshold question as to whether the communications
Speaker 3: prohibited by the order actually rise to this level of
Speaker 3: state action, in order to determine whether the communications meet
Speaker 3: some of the exemptions in the doj order.
Speaker 2: But again, there's already.
Speaker 3: An incredibly high standard for these communications, and this order
Speaker 3: is conflicting with that standard.
Speaker 1: I think it seems pretty likely that the Fifth Circuit
Speaker 1: is going to grant the stay for several reasons, but
Speaker 1: also because it may be sort of chastened. In the
Speaker 1: last term, the Supreme Court reverse seven out of nine
Speaker 1: rulings from the Fifth Circuit, so I'm not sure it
Speaker 1: wants another case to go up to the Supreme Court.
Speaker 3: I would actually be surprised if the Fifth Circuit did
Speaker 3: not overturn the injunction here, only because from what we've
Speaker 3: seen again with this Fifth Circuit it with regards to
Speaker 3: the First Amendment case in the net Choice in Ccia
Speaker 3: lawsuit regarding First Amendment rights of the services to carry
Speaker 3: specific content, I would actually suspect that the Fifth Circuit
Speaker 3: would uphold this injunction based on some of the similar
Speaker 3: reasoning that they chose to uphold the HB twenty.
Speaker 2: Law in Texas.
Speaker 1: Have courts been playing an oversized role in mediating fights
Speaker 1: over how the tech giants moderate what goes on their platforms?
Speaker 1: I mean, should this be the role of the courts?
Speaker 2: I mean, that's the interesting question.
Speaker 3: It kind of gets to the heart of this decision
Speaker 3: because in giving this order, the Court itself is making
Speaker 3: decisions about what types of speech are acceptable and what
Speaker 3: types of speech are not acceptable. Again, we're talking about
Speaker 3: with exemptions that the order presents, and so that begs
Speaker 3: the question, then, is the court also improperly weighing into
Speaker 3: editorial discretion when it makes those decision when it sides
Speaker 3: with the plaintiffs in this case? And if so, then
Speaker 3: is the government the courts are they informissively using state
Speaker 3: action to enable censorship on these social media platforms?
Speaker 2: And I would venture to say yes in this case certainly.
Speaker 1: So let's just talk about the Supreme Court for a moment.
Speaker 1: Because the Supreme Court delayed a review of Texas and
Speaker 1: Florida laws that would allow users to sue online platforms
Speaker 1: for alleged political censorship. Does it seem like the Court
Speaker 1: will take that up. I'm wondering what the delay is.
Speaker 1: It seems like a case that's destined to be at
Speaker 1: the Supreme Court.
Speaker 3: Yeah, I mean, reading the tea leaves here, I think
Speaker 3: that the Court pretty much has to take the Net
Speaker 3: Choice NCCIA cases up in Texas and Florida. You know,
Speaker 3: I think there was a lot on the docket, especially
Speaker 3: with the Gonzales case and the Tamina case and some
Speaker 3: of the other First Amendment cases we saw earlier this term,
Speaker 3: and so I think the push to have the Solicitor
Speaker 3: General way in for the Texas Florida cases was a
Speaker 3: maneuver to buy time. But this case is teed up
Speaker 3: between the different state.
Speaker 2: Regulations that we've seen come out with.
Speaker 3: Regards to forcing services to carry content. Now we have
Speaker 3: this bided injunction, it seems glaring that the Court will
Speaker 3: have to make a decision about regulations that attempt to
Speaker 3: force social media companies private entities to carry First Amendment
Speaker 3: protected speech.
Speaker 1: This is going to the Fifth Circuit, which is one
Speaker 1: of the most conservative circuits in the country, So who
Speaker 1: knows what they'll do, But would that be a case
Speaker 1: for the Supreme Court as well.
Speaker 3: I absolutely could see the DOJ pushing this to the
Speaker 3: Supreme Court because again, the order itself is so broad,
Speaker 3: and it is creating this hostile environment for both social
Speaker 3: media companies and government actors when it comes to their
Speaker 3: ability to collaborate and info gather. But it's also again
Speaker 3: it brings a lot of First Amendment concerns, as we've discussed,
Speaker 3: for the government actors themselves, but also for the companies.
Speaker 3: At the end of the day, if we reach a
Speaker 3: merits decision that says that the government does act improperly
Speaker 3: when it sends requests to take down content to social
Speaker 3: media companies, that content that the social media companies removed
Speaker 3: could very well be considered improper state action and then
Speaker 3: those companies would be forced to reinstate that content. So
Speaker 3: we also have some must carry issues that are very similar.
Speaker 2: To Texas Florida cases in this case as well.
Speaker 1: Also, is there a question about the state ags having
Speaker 1: standing to sue here? Why do they have standing here?
Speaker 2: This is a complicated question.
Speaker 3: So we're talking about the First Amendment rights of US
Speaker 3: citizens and in states like Missouri, for example, in Louisiana where.
Speaker 2: These cases arose.
Speaker 3: The Fourteenth Amendment is what provisions our constitutional First Amendment
Speaker 3: rights and other rights that are granted by the constitutions
Speaker 3: for the states as well. And so with regards to
Speaker 3: a question of state action and impermissively abridging the rights
Speaker 3: of the users who have had their content removed, whether
Speaker 3: that be in this case COVID nineteen content or other
Speaker 3: types of content. That is sort of the idea that
Speaker 3: you know that the AG is pursuing with regards to
Speaker 3: standing in this case, and the Court seem to agree
Speaker 3: on that as well.
Speaker 1: Can you talk at all about the case before the
Speaker 1: Supreme Court whether elected officials violate the First Amendment when
Speaker 1: they block people from seeing their social media accounts.
Speaker 3: Yeah, absolutely so in both of those cases, I believe
Speaker 3: that's the o'hanley case and the lin Key cases.
Speaker 2: In both of those cases they.
Speaker 3: Regard government actors removing blocking content and accounts of private
Speaker 3: US citizens, And it's very similar to this case again
Speaker 3: with regard to the government has taken an action in
Speaker 3: that case. And again it's really important to keep in
Speaker 3: mind here in both cases, in the Spring Court cases
Speaker 3: and in this injunction order, we're not talking about the
Speaker 3: conduct of the social media companies. Though the conduct of
Speaker 3: social media companies can be implicated.
Speaker 2: In all three cases.
Speaker 3: Here we are talking specifically about government actions on speech. Courts,
Speaker 3: you know, in the past, have long recognized that state actors,
Speaker 3: whether they are operating a social media account under their
Speaker 3: official title or operating it as a personal account, are
Speaker 3: not able to block content, block accounts remove content that
Speaker 3: comes from private US citizens, as this would be a
Speaker 3: violation of the US citizen's right to speech, but also
Speaker 3: the right to have access to and protest.
Speaker 2: The government as well. So similar questions are.
Speaker 3: In front of the Supreme Court in the state actor cases.
Speaker 2: What will be interesting is.
Speaker 3: To see if the Supreme Court agrees that government action
Speaker 3: here was impermissible when it comes to the government's own
Speaker 3: decisions to remove content or block some of these accounts,
Speaker 3: what that will again mean for the social media companies.
Speaker 1: I'm wondering, is this an area where Congress should be
Speaker 1: taking some role instead of leaving it to the courts.
Speaker 3: So I think the Constitution itself and existing policy that
Speaker 3: we have already accounts for this. Again, the First Amendment,
Speaker 3: it's clear in that it restrains government and state actors
Speaker 3: from abridging the right to speech of private US citizens.
Speaker 3: We have a lot of state action doctrine already that
Speaker 3: gets into the weeds of when broadcasters and publishers do
Speaker 3: act jointly or are encouraged by state actors to abridge
Speaker 3: those First Amendment rights. So it's not likely that we
Speaker 3: need Congress to intervene here.
Speaker 2: However, this does present.
Speaker 3: Sort of a nuanced situation for state action doctrine and
Speaker 3: for the First Amendment.
Speaker 2: That the courts should be able to resolve.
Speaker 3: In the o'hanley case, the Linky case, and even here
Speaker 3: in the recent injunction order, are there.
Speaker 1: Broader implications to Judge Dowdy's order.
Speaker 3: The order could open the door for plaintiffs to renew
Speaker 3: some of their state actor arguments against social media companies,
Speaker 3: plaintiffs being not just the ones in this case, but
Speaker 3: as we've seen in previous cases where you know, plate
Speaker 3: just try to work around section p thirty, you work
Speaker 3: around the First Amendment.
Speaker 2: By suggessing that content.
Speaker 3: Removal was that of state action, it really could open
Speaker 3: the door for them to renew some of those arguments
Speaker 3: down the road, you know, suggesting that content removals were
Speaker 3: based on informiscible coercion from the state, and should future
Speaker 3: courts determine content moderation was the result of informiscible state actions.
Speaker 3: Social media companies again maybe forced to reinstate accounts and
Speaker 3: content against their preferences, which could lead to the reinstatement
Speaker 3: of pernicious misinformation and disinformation, hate speech, and more so,
Speaker 3: the implications of this case are much broader than just
Speaker 3: can the government communicate with social media? It goes beyond that,
Speaker 3: and it really it comes down to the kinds of
Speaker 3: speech that private actors such as the social media companies
Speaker 3: will be forced to carry.
Speaker 1: Well. Now have to keep watch on what the Fifth
Speaker 1: Circuit does. Thanks so much for being on the show, Jess.
Speaker 1: That's Jess Myers's Legal Advocacy Council at the Chamber of Progress.
Speaker 1: And that's it for this edition of The Bloomberg Law Show.
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