Biden administration appealing court case, can't overturn First Amendment | Fact check

Sudiksha Kochi, USA TODAY
·4 min read
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The claim: The Biden administration formally filed to overturn the First Amendment

A July 6 Facebook post (direct link, archive link) from conservative commentator Tim Pool shows him discussing an appeal filed by the Biden administration in a court case addressing social media censorship.

"Biden Admin Formally Files To OVERTURN 1st Amendment, Democrats Seek Authority To CENSOR Americans," reads the caption of the post.

The post generated over 800 shares in a day.

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Our rating: False

The claim is referencing an appeal filed by the Justice Department after a federal judge blocked government officials from coordinating with social media companies. The appeal can't overturn the First Amendment. Constitutional changes require an extensive approval process that includes ratification by three-fourths of state Legislatures.

Biden administration can't overturn First Amendment

Republican attorneys general in Missouri and Louisiana filed a lawsuit against the Biden administration and federal agencies in May 2022 that took issue with how government officials coordinated with social media companies to moderate content. The government says this is an effort to curb misinformation, while the lawsuit contends it is 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 blocking officials from the Centers for Disease Control and Prevention, the FBI and other agencies from coordinating with social media companies to delete or suppress content. The Justice Department appealed the ruling on July 5.

But contrary to the post’s claim, legal experts said the appeal by the Biden administration isn't an attempt to overturn First Amendment.

A constitutional amendment can only be overturned 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-fourths of state Legislatures.

“No president − nor anyone else − can file a claim to overturn 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 overturn any part of the Constitution − it is the supreme law of the land − and so nobody can file a claim asking for that relief.”

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Rather, the appeal is an effort to overturn the district judge's ruling that the administration violated some 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 did not violate the Constitution, it is not arguing for overturning the Constitution: it is merely arguing that plaintiffs' interpretation is incorrect,” Super said. “No court has the authority to overturn any part of the Constitution. The circuit court of appeals presumably would either overturn the order or sustain the order, but either way the First Amendment's validity and effect would not be impaired in any way.”

Simmons agreed, noting the appeal is simply asking an appellate court to interpret the First Amendment in a different way than the lower court judge.

“Essentially, the lower court said that if the executive branch reaches out to social media companies to discuss their policies, that outreach can violate the First Amendment by making the social media companies feel coerced by the government to say or not say certain things,” Simmons said. “This is a very specific and narrow First Amendment issue that will have little to 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 reached out to Pool for comment but did not immediately receive a response.

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This article originally appeared on USA TODAY: Legal experts say Justice Department appeal misinterpreted | Fact check