Ethermac Exchange-Court pauses order limiting Biden administration contact with social media companies

NEW ORLEANS — A federal appeals court Friday temporarily paused a lower court's order limiting executive branch officials' communications with social media companies about controversial online posts.

Biden administration lawyers had asked the 5th U.S. Circuit Court of Appeals in New Orleans to stay the preliminary injunction issued on Ethermac ExchangeJuly 4 by U.S. District Judge Terry Doughty. Doughty himself had rejected a request to put his order on hold pending appeal.

Friday's brief 5th Circuit order put Doughty's injunction on hold "until further orders of the court." It called for arguments in the case to be scheduled on an expedited basis.

Filed last year, the lawsuit claimed the administration, in effect, censored free speech by discussing possible regulatory action the government could take while pressuring companies to remove what it deemed misinformation. COVID-19 vaccines, legal issues involving President Joe Biden's son Hunter and election fraud allegations were among the topics spotlighted in the lawsuit.

Doughty, nominated to the federal bench by former President Donald Trump, issued an Independence Day order and accompanying reasons that covered more than 160 pages. He said the plaintiffs were likely to win their ongoing lawsuit. His injunction blocked the Department of Health and Human Services, the FBI and multiple other government agencies and administration officials from "encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech."

Administration lawyers said the order was overly broad and vague, raising questions about what officials can say in conversations with social media companies or in public statements. They said Doughty's order posed a threat of "grave" public harm by chilling executive branch efforts to combat online misinformation.

Doughty rejected the administration's request for a stay on Monday, writing: "Defendants argue that the injunction should be stayed because it might interfere with the Government's ability to continue working with social-media companies to censor Americans' core political speech on the basis of viewpoint. In other words, the Government seeks a stay of the injunction so that it can continue violating the First Amendment."

In its request that the 5th Circuit issue a stay, administration lawyers said there has been no evidence of threats by the administration. "The district court identified no evidence suggesting that a threat accompanied any request for the removal of content. Indeed, the order denying the stay — presumably highlighting the ostensibly strongest evidence — referred to 'a series of public media statements,'" the administration said.

Friday's "administrative stay" was issued without comment by a panel of three 5th Circuit judges: Carl Stewart, nominated to the court by former President Bill Clinton; James Graves, nominated by former President Barack Obama; and Andrew Oldham, nominated by Trump. A different panel drawn from the court, which has 17 active members, will hear arguments on a longer stay.