The Biden administration likely infringed upon the First Amendment when it leaned on social media companies to remove false or misleading COVID-19 content, a federal court of appeals ruled Friday — narrowing a bombshell district court order that barred several officials and agencies from communicating with the platforms.
The White House, surgeon general, Centers for Disease Control and Prevention and the FBI “likely coerced or significantly encouraged social-media platforms to moderate content” and in doing so, “likely violated the First Amendment,” the New Orleans-based Fifth US Circuit Court of Appeals determined.
The three-judge panel, however, adjusted the scope of US District Judge Terry Doughty’s July 4 order, which had been temporarily stayed on July 14, removing officials from the National Institute of Allergy and Infectious Disease, the Cybersecurity and Infrastructure Security Agency and the State Department from the injunction.
The appeals court called parts of Doughty’s preliminary injunction “vague and broader than necessary.”
Doughty, a Trump appointee, had determined that the Biden administration likely colluded with Big Tech to censor protected speech during the COVID-19 pandemic and that the plaintiffs, led by the states of Missouri and Louisiana, were likely to succeed in their court battle.
His preliminary injunction restricted dozens of Biden administration officials and agencies from attempting to coordinate with social media giants to remove content.
The Fifth Circuit vacated nine of the 10 provisions in Doughty’s order that prevented Biden administration officials from “urging, encouraging, pressuring” or “inducing” social media companies from removing content, arguing that those requests do not violate the Constitution “unless and until such conduct crosses the line into coercion or significant encouragement.”
Similarly, the appeals court determined that “following up with social-media companies” about content moderation, “requesting content reports from social-media companies” or asking platforms to “Be on The Lookout” for certain types of material does not violate individuals’ First Amendment rights.
“There would be no way for a federal official to know exactly when his or her actions cross the line from permissibly communicating with a social-media company to impermissibly ‘urging, encouraging, pressuring, or inducing’ them ‘in any way,’” the judges wrote.
“The injunction’s language must be further tailored to exclusively target illegal conduct and provide the officials with additional guidance or instruction on what behavior is prohibited,” they argued, modifying the language of the one provision left in place to bar only actions that “ 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 processes.”
The opinion was handed down by Circuit Judges Edith Clement, Jennifer Walker Elrod and Don Willett — all Republican appointees.
The order is on pause for 10 days pending a Supreme Court appeal.