A federal appeals court on Friday said the Biden administration likely violated the First Amendment in some of its communications with social media companies, but also narrowed a lower court judge’s order on the matter.
The US 5th Circuit Court of Appeals ruled that certain administration officials – namely in the White House, the surgeon general, the US Centers for Disease Control and Prevention, and the Federal Bureau of Investigation – likely “coerced or significantly encouraged social media platforms to moderate content” in violation of the First Amendment in its efforts to combat Covid-19 disinformation.
But the three-judge panel said the preliminary injunction issued by US District Judge Terry Doughty in July, which ordered some Biden administration agencies and top officials not to communicate with social media companies about certain content, was “both vague and broader than necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary juncture.”
The Biden administration had previously argued in the lawsuit brought by Republican attorneys general claiming unconstitutional censorship that channels with social media companies must stay open so that the federal government can help protect the public from threats to election security, Covid-19 misinformation and other dangers.
In briefs submitted earlier this summer, the administration wrote, “There is a categorical, well-settled distinction between persuasion and coercion,” adding that Doughty had “equated legitimate efforts at persuasion with illicit efforts to coerce.”
The 5th Circuit left in place part of the injunction that barred certain Biden administration 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.”
“But,” the appeals court said, “those terms could also capture otherwise legal speech. So, 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.”
The appeals court reversed several aspects of Doughty’s sweeping order, concluding that those pieces of it risked blocking the federal government “from engaging in legal conduct.”
The 5th circuit left the order, which had been temporarily blocked earlier in the summer, on pause for 10 days so that the case can be appealed to the Supreme Court.
The opinion was handed down jointly by Circuit Judges Edith Clement, Jennifer Walker Elrod and Don Willett – all appointees of Republican presidents.
The conservative appeals court sided with many of the arguments put forward by the plaintiffs, which included private individuals as well Missouri and Louisiana, but also narrowed the injunction’s scope so that it only applied to the White House, the surgeon general, the CDC and the FBI. Doughty had included other agencies in his July order.
This story has been updated with additional information.