COURT: WHITE HOUSE, CDC LIKELY VIOLATED 1ST AMENDMENT

Panel scales back order limiting social media contact

The 5th U.S. Circuit Court of Appeals on Friday ruled that the Biden White House, top government health officials and the FBI likely violated the First Amendment by improperly influencing tech companies’ decisions to remove or suppress posts on COVID-19 and elections.

The decision is largely a victory for conservatives who have long argued that social media platforms’ content moderation efforts restrict their free speech rights.

The judges’ decision modifies a lower court’s injunction, barring some government officials in the White House and FBI from coercing social media platforms to take down or otherwise limit posts on their website.

The ruling, written by three judges appointed by Republican presidents, comes after the 5th Circuit temporarily blocked an order that had put wide-ranging restrictions on the Biden administration’s communications with social media firms. That order had named a wider range of government agencies, including the departments of Health and Human Services, State and Homeland Security as well as the U.S. Census Bureau. The 5th Circuit removed them.

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 decisionmaking 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 could have a wide-ranging impact on how the federal government communicates with the public about key public health issues and the 2024 elections. 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.

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 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 stateaction 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.