The 5th Circuit US Court of Appeals has ruled that the Biden administration likely violated the First Amendment when it pressured social media platforms to remove content it considered “misinformation” about the Covid-19 pandemic, vaccines and other topics.

The ruling by a three-judge panel of the New Orleans-based court partially upheld a July 4 injunction issued by a lower court in Missouri et al. v. Biden et al, a lawsuit filed in May 2022 by the attorneys-general of Missouri and Louisiana along with several medical experts and journalists, alleging key government officials colluded with social media platforms to censor posts the government deemed “misinformation” or “disinformation.”

On July 14, the 5th Circuit granted the Biden administration a temporary administrative stay of the July 4 injunction. Oral arguments were heard in the case on August 10.

Judges Edith Clement, Jennifer Elrod and Don Willett, co-authors of last Friday’s 74-page opinion, rejected the US Department of Justice’s (DOJ) request to fully reverse the lower court’s injunction that barred several Biden administration officials and federal agencies from communicating with social media companies about Covid-19-related topics.

The 5th Circuit found that White House officials, the surgeon general, the Centres for Disease Control and Prevention (CDC) and the FBI “likely coerced or significantly encouraged social media platforms to moderate content, rendering those decisions state actions. In doing so, the officials likely violated the First Amendment.”

The judges’ ruling upheld the spirit of the original injunction, stating: “Defendants and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress or reduce, including through altering their algorithms, posted social-media content containing protected free speech.

“That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request or supervising, directing or otherwise meaningfully controlling the social-media companies’ decision-making process.”

The judges said Biden administration officials “have engaged in a broad pressure campaign designed to coerce social-media companies into suppressing speakers, viewpoints, and content disfavoured by the government. The harms that radiate from such conduct extend far beyond just the plaintiffs; it impacts every social-media user.”

“The government is not permitted to use the government-speech doctrine to muffle the expression of disfavoured viewpoints,” the judges wrote.

Recent documents released as part of the “Twitter Files” and “Facebook Files” uncovered evidence the Biden administration and several key government officials pressured social media platforms to remove content that ran contrary to official narratives on Covid-19, vaccines and election interference.

In a statement provided to The Defender, Louisiana Attorney General Jeff Landry described the ruling as “a significant victory for the American people.”

“It confirms what we have said from the very beginning: The federal government is not permitted to engage in viewpoint censorship, no matter your political ideology,” Landry said.

In a tweet, Landry called the 5th Circuit’s decision “a major win against censorship, totalitarianism, and Biden.”

Children’s Health Defense (CHD) President Mary Holland said she was “delighted that the 5th Circuit unanimously upheld Judge Terry Doughty’s prophetic July 4 decision granting an injunction to halt the Biden administration’s censorship-industrial complex.”

Jenin Younes, a lawyer with the New Civil Liberties Alliance, which represents several of the individual plaintiffs in the lawsuit, called the decision “a crucial and historic victory for free speech in an era when social media is the modern-day equivalent of the traditional public square.”

Younes told The Defender, “As the Fifth Circuit recognized, the First Amendment does not tolerate the government coercing or encouraging tech companies to censor disfavoured viewpoints,” she said.

This included suppression of “true speech that might stoke vaccine hesitancy,” Younes said, that resulted in “the censorship of some of the most accomplished doctors and scientists in the world, while “the American public was deprived of its right to hear information and ideas that were not in line with the government’s.”

Rick Jaffe, who represents plaintiffs in medical censorship cases, took issue with some of the wording in the 5th Circuit’s ruling. On his blog, Jaffe said the 5th Circuit’s standard for not allowing the government to “significantly” encourage social media platforms to remove or suppress content, raises legal questions.

“The main problem for me is that I think this ‘cannot significantly encourage’ is flat-out unworkable as a legal guidance principle to the hundreds of federal employees who could encounter the social media companies,” he wrote. “Sometimes you need bright lines, and I think this is one of those times.”

Jaffe told The Defender, “I don’t see why government employees acting within the scope of their employment even have a First Amendment right.” Noting that the First Amendment “protects individuals from government restrictions of speech,” he said government employees’ right to speech “would be derived from some other source, like police power or public health.”

The 5th Circuit’s ruling limited the injunction, removing the communication restrictions for the National Institute of Allergy and Infectious Diseases (NIAID), the Cybersecurity and Infrastructure Agency (CISA) and the US Department of State.

According to the judges, the July 4 injunction was “both vague and broader than necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary juncture,” adding that as a result, the initial injunction “could also capture otherwise legal speech.”

Austin-based technology attorney W. Scott McCollough said that while the court did pare back the preliminary injunction, this was “in part because the evidence gleaned by the plaintiffs during preliminary discovery was too thin on whether the NIAID, State Department and CISA went beyond the permitted line.”

However, McCollough said, the case is still at the preliminary injunction stage, not the merits. “When the matter gets back on track in the District Court, there will be full discovery and more evidence on those actors is likely to be adduced.”

According to McCollough, CISA, which was implicated in the “Twitter Files,” “does have some regulatory authority, including over critical infrastructure. So, it is likely that CISA does have ‘power over the platforms in [some] capacity.’”

According to the 5th Circuit, “the district court was correct in its assessment – ‘unrelenting pressure’ from certain government officials likely ‘had the intended result of suppressing millions of protected free speech postings by American citizens.’ We see no error or abuse of discretion in that finding.”

Specifically, the judges wrote that the White House and the Surgeon General’s office “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences,” and “significantly encouraged the platforms’ decisions by commandeering their decision-making processes.”

“Generally speaking, officials from the White House and Surgeon General’s office had extensive, organised communications with platforms,” the judges stated, adding that they “made express threats and, at the very least, leaned into the inherent authority of the president’s office.”

• The Defender report