The judges’ decision modifies a lower court’s injunction that had affected a wide range of government departments and agencies. The new ruling limits that impact to the White House, the surgeon general, the Centers for Disease Control and Prevention and the FBI, barring officials in those government offices from coercing social media platforms to take down or otherwise limit posts on their websites.
The ruling, written by three judges appointed by Republican presidents, comes after a different 5th Circuit panel had temporarily blocked an order that had put restrictions on the Biden administration’s communications with social media firms. That order had included the departments of State, Health and Human Services, and Homeland Security as well as the U.S. Census Bureau, the National Institutes of Allergies and Infectious Diseases and the Cybersecurity and Infrastructure Security Agency. The 5th Circuit removed them, saying they had not coerced the social media companies.
The judges wrote that the White House likely “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences.” They also found the White House “significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment.”
A White House spokesperson said in a statement that the Justice Department was “reviewing” the decision and evaluating its options.
“This Administration has promoted responsible actions to protect public health, safety, and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections,” the White House official said. “Our consistent view remains that social media platforms have a critical responsibility to take account of the effects their platforms are having on the American people, but make independent choices about the information they present.”
The decision is likely to have a wide-ranging impact on how the federal government communicates with the public about key public health issues and the 2024 elections.
The appeals court judges found that pressure from the White House and the CDC affected how social media platforms handled posts about covid-19 in 2021, as the Biden administration sought to encourage the public to obtain vaccinations.
The judges also zeroed in on the FBI’s communications with tech platforms in the run-up to the 2020 elections, which included regular meetings with the tech companies. The judges wrote that the FBI’s activities were “not limited to purely foreign threats,” citing instances where the law enforcement agency “targeted” posts that originated inside the United States, including some that stated incorrect poll hours or mail-in voting procedures.
The Justice Department did not immediately respond to requests for comment, and it was not immediately clear if it would appeal the ruling.
The Justice Department had argued that District Judge Terry A. Doughty’s July 4 ruling was overly broad and could “chill” a wide range of lawful communications between the government and social media companies, especially in the face of public emergencies.
The FBI, Google and Meta declined to comment. X and the Surgeon General’s office did not immediately respond to requests for comment.
Any appeal of the order would bring the debate over online speech before the Supreme Court, which is already expected to take up conflicting appeals court rulings over state social media laws this year.
The decision did limit the scope of Judge Doughty’s injunction, which had specifically named leaders at DHS, HHS and other agencies exempted. The judges on Friday said many of those individuals “were permissibly exercising government speech.”
“That distinction is important because the state-action doctrine is vitally important to our Nation’s operation — by distinguishing between the state and the People, it promotes ‘a robust sphere of individual liberty,’” the 5th Circuit judges wrote.
Stanford Law School professor Daphne Keller said the 5th Circuit’s ruling appeared to allow “a lot of normal communications as long as they are not threatening or taking over control of platforms’ content decisions.”
“But it also says they can’t `significantly encourage’ platforms to remove lawful content, so the real question is what that means,” she said.
Friday’s decision came in response to a lawsuit brought by Republican attorneys general in Louisiana and Missouri who allege that government officials violated the First Amendment in their efforts to encourage social media companies to address posts that they worried could contribute to vaccine hesitancy during the pandemic or upend elections.
Missouri Attorney General Andrew Bailey celebrated the decision as a victory in a statement.
“The first brick was laid in the wall of separation between tech and state on July 4,” he said. “Today’s ruling is yet another brick.”
This is a developing story. Please check back for update
