5th Circuit Court of Appeals Upholds Injunction Limiting Communications Between the Government and Social Media Platforms

Courtesy of Unsplash

By Robert Portillo, Staff Writer

On the 8^th of September 2023, the New-Orleans based U.S. 5^th Circuit Court of Appeals affirmed in part and reversed in part a District Court ordered injunction limiting the communications between the government and social media companies.^[1] In its decision, the court indicated it was likely that the conduct of certain government entities, including that of the Biden Administration, violated the First Amendment of The Constitution when they coerced and threatened social media companies to remove posts that the government contended to have contributed to the spread of “misinformation.”^[2]

In the suit brought in the Western District of Louisiana, plaintiffs included the states of Missouri and Louisiana through their GOP Attorney Generals, three doctors, a news website, and a health care activist.^[3] The preliminary injunction issued by District Court Judge Terry Doughty on July 4^th, 2023,^[4] included the State Department, Department of Homeland Security, and Health and Human Services, but has since been narrowed by the Court of Appeals decision to apply only to the White House, Surgeon General, CDC, and FBI.^[5]

The primary subject matter of the communications in question surrounded the moderation of posts discussing the COVID-19 pandemic and the results of the 2020 presidential election.^[6] The Court of Appeals in its opinion set forth the facts relating to the communications between nearly every major American social media company and certain government entities.^[7] These communications date back at least to the 2020 presidential transition and continue to this day.^[8] Social media companies in this time frame have altered their content policies and sent consistent reports to government officials in regard to their company’s moderation efforts.^[9]

In at least one email, a White House official demanded a post be taken down “ASAP” and to “keep an eye out for tweets that fall in this same genre.”^[10] In another correspondence from a White House official, a platform was told to “remove [an] account immediately” and the official stated he could not “stress the degree to which this needs to be resolved immediately.”^[11] The platforms often met such requests from officials.^[12]

Relating to the requests for information regarding the companies moderation policies and reports sent to officials by the platforms, one company made an employee “available on a regular basis,” and officials were even given access to special tools like a “Partner Support Portal” that ensured requests of the officials were “prioritized automatically.”^[13] In another instance, a White House official reached out to Facebook at least twelve times for details and data about Facebook’s moderation policies and asked what “interventions” were being taken to hinder the spread of “misinformation.”^[14]

Still, the White House felt not enough was being done on the part of these social media companies. One official told a platform that it “remain[ed] concerned” that the platform was encouraging vaccine hesitancy, which was a “concern that is shared at the highest (and I mean highest) levels of the [White House].”^[15] Speaking at a press conference, the Surgeon General said platforms were “one of the biggest obstacles to controlling the COVID pandemic because they had “enabled misinformation to poison” public discourse and “have extraordinary reach.”^[16] The next day, President Biden said that platforms were “killing people” through their inaction. Several days later a White House official said they were “reviewing” the legal liability of platforms and noted “the president speak[s] very aggressively about that” as “they should be held accountable.”^[17]

The court concluded in their legal analysis that the plaintiff’s case successfully met the necessary elements for relief and upheld the injunction with a few modifications.^[18] These modifications included the narrowing of the parties the injunction would apply to as noted earlier, and specifically modified one of the injunctions prohibitions.^[19] The injunction does allow the government to continue communicating with platforms about posts involving criminal activity, threats to national security, and foreign interference in elections.^[20]

The Circuit Court delayed the effective date of the injunction by ten days to allow for an emergency appeal to the Supreme Court.^[21] The Justice Department has asked the Supreme Court to block the injunction.^[22] Justice Alito has since frozen the injunction to allow time for the Justice Department to file an appeal.^[23] The Biden Administration has contended that an upholding of the injunction will hinder the government’s ability to combat false and misleading claims relating to public health and elections.^[24]

The decision of Circuit Court’s panel, which consisted solely of GOP-appointed Judges,^[25] will only further ignite the omnipresent debate over what kinds of speech are so dangerous and damaging as to create a compelling state interest to limit them. The final decision issued in this matter, whether it be that of the Circuit Court or Supreme Court, will undoubtedly create significant precedent as it relates to the rights the government possesses in the moderation of content on the modern world’s most prominent arenas of public discourse.

^[1] https://storage.courtlistener.com/recap/gov.uscourts.ca5.214640/gov.uscourts.ca5.214640.238.1.pdf

^[2] Id.

^[3] Id.

^[4] https://www.npr.org/2023/09/08/1197971952/biden-administration-fifth-circuit-ruling-social-media-injunction

^[5] https://storage.courtlistener.com/recap/gov.uscourts.ca5.214640/gov.uscourts.ca5.214640.238.1.pdf

^[6] Id.

^[7] Id.

^[8] Id.

^[9] Id.

^[10] Id.

^[11] Id.

^[12] Id.