The claim: The Biden administration officially filed a case to overturn the First Amendment
A July 6 Facebook post (direct link, archive link) by conservative commentator Tim Pool shows him discussing an appeal filed by the Biden administration in a court case over social media censorship.
“Biden Admin officially files case to OVERRIDE 1st Amendment, Democrats Seek Authority to CENSORE Americans,” the post’s caption read.
The post generated more than 800 shares in one day.
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Our opinion: False
The claim refers to an appeal filed by the Justice Department after a federal judge blocked government officials from coordinating with social media companies. The appeal cannot overturn the First Amendment. Constitutional changes require a thorough approval process that includes ratification by three-quarters of the state legislatures.
The Biden administration can’t undo the First Amendment
Republican attorneys general in Missouri and Louisiana filed a lawsuit against the Biden administration and federal agencies in May 2022, which challenged how government officials coordinated with social media companies to moderate the content. The government says it’s an effort to fight misinformation, while the lawsuit argues it’s conservative censorship.
On July 4, Louisiana U.S. District Judge Terry A. Doughty ruled that the administration likely violated the First Amendment and granted a preliminary injunction restraining officials from the Centers for Disease Control and Prevention, the FBI and d ‘other agencies to coordinate with social media companies to remove or delete content. The Justice Department appealed the decision on July 5.
But contrary to the post’s claim, legal experts said the Biden administration’s appeal was not an attempt to strike down the First Amendment.
A constitutional amendment can only be canceled by a new amendment. Proposing a new amendment requires a two-thirds vote of Congress or a convention called by the states, according to the White House. The amendment would then have to be ratified by three-quarters of the state legislatures.
“No president — or anyone else — can file a claim to strike down the First Amendment or any other part of the Constitution,” Ric Simmons, a law professor at Ohio State University, told USA TODAY. “No court can strike down any part of the Constitution – it is the supreme law of the land – and therefore no one can file a claim seeking this remedy.”
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Rather, the appeal is an effort to overturn the district judge’s ruling that the administration violated part of the Constitution, according to David Super, a constitutional law expert at Georgetown University.
“When the Justice Department argues that this or that administration has not violated the Constitution, it is not arguing to overturn the Constitution: it is simply arguing that the plaintiffs’ interpretation is incorrect,” Super said. “No court has the power to strike down any part of the Constitution. The circuit court of appeals would presumably set aside the ordinance or uphold it, but in any case the validity and effect of the First Amendment would not be in no way compromised.
Simmons agreed, noting that the appeal simply asks an appeals court to interpret the First Amendment differently than the lower court judge.
“Essentially, the trial court said that if the executive branch goes to social media companies to discuss their policies, that outreach may violate the First Amendment by making social media companies feel coerced by the government to say or not to say certain things,” Simmons said. “This is a very specific and narrow First Amendment issue that will have little or no impact on how the First Amendment applies in the vast majority of cases.”
If the government’s appeal is successful, the impact would be limited to the situation at issue in the case, according to Bradley Moss, a national security lawyer. The current administration and future administrations could continue to engage in this same type of outreach and coordination with private social media platforms.
USA TODAY contacted Pool for comment but did not immediately receive a response.
Our fact-checking sources:
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Ric Simmons, July 6, email exchange with USA TODAY
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Bradley Moss, July 6, email exchange with USA TODAY
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David Super, July 6, email exchange with USA TODAY
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Marc Scholl, July 6, email exchange with USA TODAY
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District Court for the Western District of Louisiana, May 5, 2022, Missouri v. Biden
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District Court for the Western District of Louisiana, July 4, Preliminary Injunction
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District Court for the Western District of Louisiana, July 5, notice of appeal
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White House, accessed July 7, The Constitution
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This article originally appeared on USA TODAY: Legal experts say Justice Department appeal misinterpreted | Fact check