Biden Administration officials likely violated the First Amendment by “coercing” and “significantly encouraging” social media companies to censor citizens’ protected free speech, according to the 5th Circuit Court of Appeals.
In early July, a federal judge from Louisiana issued an injunction against myriad government officials prohibiting them from working with social media companies to exert any form of control over users’ “protected free speech.”
Almost immediately, the Biden Administration issued a notice of appeal for the ruling.
In doing this, federal officials effectively sought to have the courts reinstate their ability to collaborate with social media companies for content moderation.
Government officials have not contested the facts of the case. Instead, they have challenged the court’s interpretation of their legality. While they admit to the instances of coordination and communication cited by the defendants, they argue that they acted within their legal rights.
Defendants, on the other hand, suggest that officials’ conduct was in violation of the First Amendment.
The ruling issued by the 5th Circuit Court of Appeals late last week largely affirms the defendants’ case, although it does constrain the breadth of the claims, as well as the reach of the injunction.
After examining the facts of the case, the court decided that the defendants clearly had standing to pursue injunctive relief from the courts for injuries sustained at the hands of federal officials.
The circuit court also determined that the White House, the Surgeon General, the FBI, and the CDC “likely” violated the First Amendment by inappropriately communicating and collaborating with social media companies.
It was also found, however, that the NIAID, the State Department, and the CISA — who were also named in the lawsuit — were acting within their legal rights.
With regard to the injunction issued by the lower court judge, it was determined that its prohibitions were “overbroad.” Consequently, the circuit court struck down the vast majority of the injunction and modified the remaining provision to be more carefully targeted at preventing unconstitutional action on the part of the defendants.
Establishing Standing
Before delving into the merits of the case, the 5th Circuit Court of Appeals explained in-depth why the plaintiffs in the case have standing to seek “injunctive relief” for the injuries exacted on them by the Biden Administration.
According to the ruling:
“The Plaintiffs have standing because they have demonstrated on going harm from past social-media censorship and a likelihood of future censorship both of which are injuries traceable to government-coerced enforcement of social-media platforms’ content-moderation policies and redressable by an injunction against the government officials.”
The Plaintiffs Face A Threat of Future Injury From the Biden Administration
The Biden Administration does “not contest that these past injuries occurred.” Rather, they are arguing that the plaintiffs do not have standing to pursue “injunctive relief” because they “have failed to demonstrate that the harm from these past injuries is ongoing or that similar injury is likely to reoccur in the future.”
The 5th Circuit Court judge disagreed with both aspects of their argument.
The ruling notes that all five of the plaintiffs “have stated in sworn declarations that their prior censorship has caused them to self-censor and carefully word social-media posts moving forward in hopes of avoiding suspensions, bans, and censorship in the future.”
According to the ruling, the Supreme Court has previously recognized that “this chilling of the Individual Plaintiffs’ exercise of their First Amendment rights is, itself, a constitutionally sufficient injury.”
It is further explained that while such injury cannot be “imaginary or wholly speculative,” those expressed by the plaintiffs in this case are “far from hypothetical.”
“Rather, they are grounded in the very real censorship injuries they have previously suffered to their speech on social media, which are ‘evidence of the likelihood of a future injury,'” the ruling states.
“Supported by this evidence,” the judge continues, “the Individual Plaintiffs’ self-censorship is a cognizable, ongoing harm resulting from their past censorship injuries, and therefore constitutes injury-in-fact upon which those Plaintiffs may pursue injunctive relief.”
The ruling also makes the case that the plaintiffs have demonstrated a “substantial risk that the injuries they suffered in the past will reoccur.”
While the Biden Administration argued that “there is no threat of future injury” to the plaintiffs because “Twitter has stopped enforcing its COVID-related misinformation policy,” the judge states that “this does nothing to mitigate the risk of future harm to the Individual Plaintiffs.”
The judge then lays out three reasons why the plaintiffs in the case are at risk of future injury from the defendants in the case.
Firstly, the judge states that “Twitter continues to enforce a robust general misinformation policy” that applies to other topics about which “the Individual Plaintiffs seek to express views,” and for which they have “been censored for their views.”
Secondly, the ruling notes that the plaintiffs “use social-media platforms other than Twitter…which still enforce COVID- or health-specific misinformation policies.”
Lastly — “and most fundamentally” according to the ruling — the plaintiffs are “not seeking to enjoin Twitter’s content moderation policies” but rather “the government’s interference with those social-media companies’ independent application of their policies.”
According to the ruling, “there is no evidence to suggest that the government’s meddling has ceased.”
“To the contrary, the officials’ attorney conceded at oral argument that they continue to be in regular contact with social-media platforms concerning content-moderation issues today,” the judge states.
The Biden Administration also argued that “future harm is unlikely” because the all social media accounts that had previously been suspended have since been reinstated.
According to the judge, however, the fact that the plaintiffs “continue to be active speakers on social media, they continue to face the very real and imminent threat of government-coerced social-media censorship.”
Injury Is Traceable to the Biden Administration’s Conduct
The 5th Circuit Court of Appeals also determined that the injuries sustained by the plaintiffs are reasonably traceable to the Biden Administration’s conduct.
While the Biden Administration has argued that the injuries sustained by the plaintiffs cannot be traced back to officials’ conduct on account of the fact that the misinformation policies in question were adopted in early 2020, prior to the Biden Administration taking office.
According to the ruling, however, this is “irrelevant” on account of the fact that the question relevant to the case at hand is whether the injuries can be traced back to “government-coerced enforcement of those policies.”
The ruling explains that because the social media companies were to have “react[ed] in a predictable way” to the government’s actions, “the platforms’ censorship decisions were likely attributable at least in part to the platforms’ reluctance to risk the adverse legal or regulatory consequences that could result from a refusal to adhere to the government’s directives.”
The judge states that it was likely, when “faced with unrelenting pressure from the most powerful office in the world, social-media platforms did, and would continue to, bend to the government’s will.”
The Merits of the Case
According to the court, there are two primary ways in which members of the Biden Administration could have unconstitutionally influenced social media companies to censor Americans’ protected free speech, either through coercion or significant encouragement.
“When a private party is coerced or significantly encouraged by the government to such a degree that its ‘choice’ — which if made by the government would be unconstitutional — [the decision] ‘must in law be deemed to be that of the State,” the ruling states.
It is explained in the ruling that coercion is understood as the government taking actions that could “reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.”
Encouragement is defined as actions where there is “some exercise of active (not passive), meaningful (impactful enough to render them responsible) control on the part of the government over the private party’s challenged decision.”
Coercion & Significant Encouragement
“On multiple occasions, the officials coerced the platforms into direct action via urgent, uncompromising demands to moderate content,” the ruling stated.
“When the officials’ demands were not met, the platforms received promises of legal regime changes, enforcement actions, and other unspoken threats,” the ruling read. “That was likely coercive.”
According to the ruling, the requests made by the Administration to social media companies were “phrased virtually as orders,” and the “persistent nature of their messages” only served to add to the coercive character of the communications.
“Given their treatment of the platforms as a whole,” the 5th Circuit Court said, “we find the officials’ tone and demeanor was coercive, not merely persuasive.”
It was further argued that the evidence presented in the case suggests that the government’s coercive efforts were successful. “There is plenty of evidence — both direct and circumstantial, considering the platforms’ contemporaneous actions — that the platforms were influence by the officials’ demands,” the ruling said.
The court concluded bluntly, stating that “it is apparent that the officials’ messages could ‘reasonably be construed’ as threats.”
It was also explained in the ruling that Biden Administration officials “significantly encouraged” social media companies to censor protected free speech according to their wishes.
“We find that the officials also significantly encouraged the platforms to moderate content by exercising active, meaningful control over those decisions,” the court wrote.
“In sum, we find that the White House officials, in conjunction with the Surgeon General’s office, coerced and significantly encouraged the platforms to moderate content,” the ruling concluded. “As a result, the platforms’ actions ‘must in law be deemed to be that of the State.'”
Who Else Likely Violated the Constitution In This Way?
It was also found that “the FBI, too, likely (1) coerced the platforms into moderating content, and (2) encouraged them to do so by effecting changes to their moderation policies, both in violation of the First Amendment.”
The ruling also stated that while the social media platforms were not “coerced by CDC officials,” the court was “left with no choice but to conclude that the CDC significantly encouraged the platforms’ moderation decisions” such that “those decisions ‘must in law be deemed to be that of the state.'”
Whose Actions Did Not Violate the Constitution?
Although they agreed with the lower court on many points, 5th Circuit District Court did not support all of its findings.
According to the ruling, the court of appeals determined that the lower court “erred in enjoining” the NIAID, the State Department, and the CISA, as “there was not, at this stage, sufficient evidence to find that it was likely these groups coerced or significantly encourage[d] the platforms.”
Distinguishing the behavior of these officials from that of the White House, Surgeon General, CDC, and FBI was crucial, in their opinion, “it promotes ‘a robust sphere of individual liberty.'”
So What Happens to the Injunction?
Despite the ruling’s strong assertions that the Biden Administration likely violated the First Amendment, it dramatically curtailed the injunction issued by the lower court, arguing that it was “overbroad.”
According to the ruling, an injunction is considered overbroad, if it “enjoins a defendant from engaging in legal conduct,” which the court of appeals contends is the case for “nine of the preliminary injunction’s ten prohibitions.”
The only facet of the injunction that the circuit court upheld was that which “bars the officials from ‘threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.'”
Even then, this prohibition was modified such that it will “exclusively target illegal conduct and provide the officials with additional guidance or instruction on what behavior is prohibited.”
At this time, it still remains to be seen how the lawsuit filed against members of the Biden Administration and other federal agencies will ultimately resolve. The amended injunction issued will remain in effect until the case is resolved or the courts take further action on the matter.
Read the Ruling from the 5th Circuit Court of Appeals
