The 5th U.S. Circuit Court of Appeals in New Orleans ruled on Friday that the Biden administration, the FBI, and the CDC likely violated the First Amendment by pressuring social media platforms to remove or suppress posts on COVID-19 that they deemed problematic. The ruling is a major victory for conservatives who have long argued that social media platforms were censoring their views on the pandemic.
Government officials “coerced” and “commandeered” platforms’ decisions
The appeals court, composed of three judges appointed by Republican presidents, modified a lower court’s injunction that barred some government officials from contacting social media platforms to urge them to take down content. The appeals court said that the White House, the surgeon general, the CDC, and the FBI cannot “coerce” social media platforms to make their moderation decisions by way of “intimidating messages and threats of adverse consequences”. The court also said that the government officials “significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment”.
The ruling cited examples of such coercion and commandeering, such as President Biden’s statement that social media platforms were “killing people” by allowing misinformation to spread, Surgeon General Vivek Murthy’s call for an “all-of-society approach” to combat misinformation, and FBI Director Christopher Wray’s warning that misinformation could lead to violence. The court said that these statements were not merely expressing opinions or providing information, but rather “attempting to enlist private actors in a censorship campaign”.
Lawsuit filed by states and individuals opposed to Biden’s COVID-19 policy
The ruling stems from a lawsuit filed by the states of Missouri and Louisiana, a conservative website owner, and four individuals who opposed the Biden administration’s COVID-19 policy.
The plaintiffs claimed that the government officials violated their free speech rights by colluding with social media platforms to censor their posts on COVID-19. The plaintiffs also alleged that the government officials threatened the platforms with antitrust lawsuits or changes to federal law that protect their liability.
The lawsuit was filed in July, after the Biden administration announced a new strategy to combat COVID-19 misinformation online. The strategy included flagging problematic posts for Facebook, working with doctors and influencers to amplify accurate information, and expanding outreach to local media and community organizations.
Lower court’s injunction was “overbroad” and “unnecessary”
The appeals court agreed with the lower court that the plaintiffs were likely to succeed on their First Amendment claim, but found that the lower court’s injunction was “overbroad” and “unnecessary”. The lower court’s injunction prohibited a wide range of officials across the administration, including the Department of Health and Human Services and more than a dozen individual government officials, from engaging in any communication with social media platforms regarding COVID-19 content. The appeals court said that this injunction risked barring the government from engaging in legal conduct, such as providing factual information or expressing opinions.
The appeals court narrowed down the scope of the injunction, applying it only to the White House, the surgeon general, the CDC, and the FBI. The appeals court also removed some of the prohibitions in the lower court’s injunction, such as preventing the government from requesting data or reports from social media platforms, or from participating in any voluntary program or initiative with them. The appeals court said that these prohibitions were not supported by evidence or necessary to prevent irreparable harm.
The appeals court gave the Biden administration 10 days to seek a Supreme Court review of its decision. The National Institute of Allergy and Infectious Diseases, the Cybersecurity and Infrastructure Agency, and the State Department were removed from the order.