Missouri, et al. v. Biden, et al., No. 23-30445 (5th Cir.) Per curiam opinion of three judge panel released September 8, 2023.
The United States Court of Appeals for the Fifth Circuit, having reviewed the record and the law concerning injunctions relating to First Amendment claims, has concluded that the United States District Court did not err in enjoining the Biden Administration, the Surgeon General, the Centers for Disease Control, and the Federal Bureau of Investigation from further coercion or excessive encouragement of social media platform’s policies and practices concerning content and accounts. In a per curiam opinion, the three judge panel of the Fifth Circuit found no error in the perception that federal leaders substantially engaged with social medial platforms, threatening punishment should the platforms not acquiesce in government commands, in likely violation of the First Amendment rights of plaintiff private citizens and states.
The appellate court did not agree that other named defendants were likely to have violated the First Amendment, as their actions did not create such a close nexus between government and private entities actions that the the acts of the platforms could be seen as the acts of the government.
Notwithstanding the perceived Executive Branch and law enforcement violations of the First Amendment, the Fifth Circuit observed that the federal government has and retains the power to convey its own messages, and may communicate with social media platforms to address those messages, provided such engagement with the platforms is not coercive.
Let us count the ways. The opinion recounts the ways in which, on multiple occasions, the White House, the Surgeon General, the Centers for Disease Control, and the Federal Bureau of Investigation injected themselves into the operations of social media platforms during the Covid-19 pandemic, ostensibly in the, only name of inhibiting the dissemination of misinformation, by insisting on removal of information disfavored by the government, demanding reforms of moderation policies, and none too subtly indicating that the platforms’ failure to comply with government demands could have adverse consequences.
Individual Plaintiffs: What is Past Is Prologue. The Fifth Circuit rejected the government’s argument that any injury suffered by the individual plaintiffs is wholly in the past, negating standing to seek to enjoin future harms.
The court opined that past speech suppression has created a prior restraint operating against plaintiffs in the present in the form of fearful self-censorship, which circumstances support standing to seek injunctive relief.
Moreover, the restoration of accounts that had been suppressed and representations that future harm will not occur did not persuade the court, as the key issue is government interference, not media self-governance.
Not Exactly Hands Off. The court rejected the argument that all of the decisions were those of the social media platforms, as the core issue is coercive government interference with the media platforms, and that government intrusion is demonstrated on the record of the case.
Injunctive Relief Can Help. The court found redressability to have been established where granting relief would preclude unlawful government interference with social media entities moderation policies, which demonstrates that there is a relationship between the request relief and the harms alleged.
Government Plaintiffs’ Speech Interests. The Fifth Circuit panel rejected the argument that states have no First Amendment rights, as states can be seen to have a sovereign right to speech on the states’ own behalf, and the states are injured where state officials’ accounts are “censored, due to federal coercion.” Slip op. at 26. In addition, states’ reciprocal listening to citizens is impaired by federal interference with media platforms.
The crux of the matter. “The government may not abridge free speech.” Slip op. at 28. Although a private party has no such obligation concerning free speech, that is not the case where the government coerces or encourages a private party to behave in a way that would be unconstitutional had the government acted alone.
In the Missouri v. Biden opinion, the Fifth Circuit panel has adopted nomenclature respecting considerations relevant to government coercion or significant encouragement that will be called the “close nexus” test, obsoleting former phrases as “fair attribution” or “state compulsion.” The panel noted that this case does not involve “joint action.”
The “close nexus” test examines the actions complained of and the scope of government intervention, whether by innocuous persuasion or problematic coercion or significant encouragement.
Significant encouragement must be active and meaningful control over a private party’s decisions. Mere regulation cannot be enough. To establish a “close nexus,” it must be shown that the government is practically “responsible” for the decision.” Slip op. at 31, citing Blum v Yaretsky, 441 U.S. 991, 1004 (1982).
Active meaningful control must be present either through entanglement in decision making or direct involvement in carrying out the decision, such that the decision must be seen as that of the state.
Significant encouragement may exist without either joint action or complete control of the private party.
Coercion or compulsion will also satisfy the “close nexus” test, although coercion may be more subtle, as the state is free to advocate for its own positions. Examining whether there is persuasion or intimation of punishment for failure to comply with a government request may be a tipping point toward establishing coercion.
Distinguishing convincing versus coercive behavior may be obtained by examining a government speakers choice of words and tone, the perception of threat, regulatory authority, and adverse consequences. Slip op. at 36, citing National Rifle Ass’n v. Vullo, 49 F.4th 700, 715 (2nd Cir. 2022).
Seeming may warrant believing. The Fifth Circuit thinks that a government demand may be coercive even if the speaker lacks direct authority to make good on a threat, so long as there is some power in operation in the background. Slip op. at 47-48.
Actual direct authority is not necessary to engage in impermissible pressure.
Explicit vocalization of a threat is not necessary if the threat is apparent from the circumstances.
Not to put to fine a point on it. In this case, government officials told social media platforms that they were killing or poisoning people and that fundamental reforms were in the offing to ensure the platforms’ accountability.
Simply going along with “no strings attached” state requests, without threat of punishment, is not sufficient to create a “close nexus” between private action and government interference with speech, as the Ninth Circuit has opined. But here, however, the Fifth Circuit has concluded that officials’ statements could be construed as threats.
The Fifth Circuit found that government officials significantly encouraged content moderation by “exercising active, meaningful control over platform decision making, including entangling themselves with platform moderation policies.
The panel observed that what were initially simple inquiries into social media moderation processes bloomed into questions about internal processes and then evolved into questions about why certain content was not removed. Moreover, federal officials would demand that private companies change their policies, doing so both privately and publicly.
The social media companies capitulated and advised the White House that they would accede to the government’s demands.
In addition to White House and other high level official involvement, the FBI urged the social media companies to take down content. it was not necessary to articulate any threat where inherently coercive authority pervaded the law enforcement function. Similarly, specific consequences did not need to be articulated where all concerned were aware of the armament of remedies the FBI had at its disposal. Threats of hacking by state actors to spread misinformation intimidated the social medial platforms sufficiently to prompt the sites to take down content and close accounts in compliance with FBI directives.
Just as administration officials had done, the FBI injected itself into platform decision making, making recommendations that platforms adopted. When those recommendations became interwoven into social media platform decision making, it could no longer be said that the platforms were acting interdependently of significant federal involvement. Slip op. at 56.
The Centers for Disease Control were not plainly coercive but significantly encouraged moderation decisions, particularly by flagging content for removal. However, as the CDC had no power to compel social media platform decisions, nor did they allude to adverse consequences, the Fifth Circuit did not perceive coercion.
However, significant encouragement by the CDC was found in “Be on the Lookout” meetings among officials and media representatives and “advisories” about “hot topics” concerning the pandemic. Concomitantly the CDC directed changes to platform moderation policies. On inquiry by the platforms, the CDC would pronounce whether content was ‘misinformation’ and/or in need of government approved labels. Platforms sought approval from the CDC to conform their acts to CDC dictates, refraining from actin where the CDC had not weighted in on particular items. Slip op. at 58.
The social media platforms could not and did not act independently in these circumstances, the Fifth Circuit found. While not compelled, the platforms’ content decisions could nonetheless be deemed to be those of the states.
Other federal powers persuasive, but not compelling. The National Institute of Allergies and Infectious Diseases (NAIAD), the Department of State, and the Cybersecurity and Infrastructure Security Agency (CISA) did not communicate with social media platforms, although Anthony Fauci, M.D., Director of NAIAD, promoted some government views, while discouraging others.
The appellate court stressed that government is permitted to express views without offending the First Amendment, and here, in the absence of coercion or significant encouragement, these federal officials cannot be seen to have violated the First Amendment.
The Department of State alerted social media platforms about adverse state actors’ methodologies, but took no part in engagement in content, flagging items, or policy changes. There were not threats and no apparent authority to execute threats.
CISA flagged content, but the Fifth Circuit found this to be convincing rather than coercive, and CISA had no power nor did its requests threaten, although the requests were not trivial.
The federal district court was correct, the Fifth Circuit has concluded, except that the trial court included individuals in its order of injunction that had not engaged in impermissible coercion significant encouragement. Thus, their acts could not be seen as creating the kind of ‘close nexus’ that would permit concluding that the acts of the government and the acts of the private entity were in unison, the latter being attributable to the former, and in violation of the First Amendment, as the government could not have taken such actions on its own without violating the First Amendment.
No repair to be had. The Fifth Circuit reiterated the well established principle that deprivations of First Amendment rights, even for brief periods of time, can be seen as causing irreparable harm. This was seen as true in this case where assertions support the notion that further First Amendment deprivations are threatened.
Speech freedoms in the balance. The appellate panel stated that the balance of equities may be examined in light of the public interest versus that of the government, stressing that where the government is the opposing party, as in this case, the public interest and the government interest are merged.
“Government speech” cannot cancel First Amendment rights. The Fifth Circuit has rejected the argument that the executive branch’s “government speech” interests outweigh plaintiffs’ First Amendment rights, nor may the government use “government speech” to “silence or muffle the expression of disfavored viewpoints.” Slip op. at 64, citing Matal v. Tam, 582 U.S. 218, 235 (2017).
Even though it is correct that the government wants to communicate with social media companies, the government cannot pursue its ends to the extent that the government engages in viewpoint suppression. Moreover, the appellate court stressed, the use of injunctions to protect First Amendment freedoms are always in the public interest. Equity favors the plaintiffs, the court has found Slip op. at 64, citing Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir 2012).
But! But! With all these considerations favoring the plaintiffs’ requests for injunctive relief, the appellate court found that the trial court had erred in issuing an order that was far too broad — reaching individuals and entities who had not potentially violated the First Amendment — and far too vague — leaving properly affected individuals and entitles to ‘guess’ at what interactions with social media companies would be permitted and what would be forbid. den. Slip op. at 65-66.
Friendly persuasion permissible. It is not unlawful for the government to urge, encourage, pressure, or induce any social media company to act with respect to content moderation unless the government “crosses the line into coercion or significant encouragement.” Slip op. at 66.
Similarly, following up with media companies about content or requesting reports or asking companies to watch out for posts is not unlawful. Id.
Immediate reform of order indicated. The vagueness of the order of injunctive relief is highly problematic, the Fifth Circuit has found, as the government cannot know what might be impermissible where such broad generalities are used. The injunction’s carve-outs do not cure this problem.
Barring the government from working i partnership with private entitles on social media policies is impermissible, particularly where doing so would impact their rights of third parties not involved in this suit, which entitles have First Amendment rights of their own, concerning which no prior restraints ought to be attached
While the ordinary remedy would be remand, in light of the press of time in this case, the Fifth Circuit determined that it would revise the initial trial court order itself, revoking all but one provision and modifying that provision to read:
Defendants, and their employees and agents, shall take no
actions, formal or informal, directly or indirectly, to 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
Slip op. at 70.
The Fifth Circuit has emphasized that the government defendants cannot coerce or significantly encourage content moderation decisions, threaten adverse consequences, or threaten harm upon noncompliance, nor can the government supervise content moderation decision or engage in those decisions. Slip op. at 71. Simply stated, the government may not interfere with social media platforms’ independent decision making.
Beneficiaries not present. The appellate court is not troubled by the fact that potential plaintiffs not parties to this case might benefit from the injunction against government interference in social media platforms. The extension of benefits to non-parties is not overly broad where the harms that flow from government actions affect every single social media user.
The upshot. Through its September 8, 2023 Opinion and Order, the Fifth Circuit has taken the following action concerning the July 4, 2023 Order of the U.S District Court for the Western District of Louisiana:
Affirmed respecting:
The White House
The Surgeon General
The Centers for Disease Control
The Federal Bureau of Investigation
The affirmation of the injunction affects the following individuals and entitles:
Executive Office of the President of the United States:
White House Press Secretary, Karine Jean-Pierre;
Counsel to the President, Stuart F. Delery;
White House Partnerships Manager, Aisha Shah;
Special Assistant to the President, Sarah Beran;
Administrator of the United States Digital Service within the Office of Management and Budget, Mina Hsiang;
White House National Climate Advisor, Ali Zaidi;
White House Senior COVID-19 Advisor, formerly Andrew Slavitt;
Deputy Assistant to the President and Director of Digital Strategy, formerly Rob Flaherty; White House COVID-19 Director of Strategic Communications and Engagement, Dori Salcido;
White House Digital Director for the COVID-19 Response Team, formerly Clarke Humphrey;
Deputy Director of Strategic Communications and Engagement of the White House COVID-19 Response Team, formerly Benjamin Wakana;
Deputy Director for Strategic Communications and External Engagement for the White House COVID-19 Response Team, formerly Subhan Cheema;
White House COVID-19 Supply Coordinator, formerly Timothy W. Manning; and Chief Medical Advisor to the President, Dr. Hugh Auchincloss, along with their directors, administrators and employees.
Surgeon General Vivek H. Murthy;
Chief Engagement Officer for the Surgeon General, Katharine Dealy, along with their directors, administrators and employees.
The Centers for Disease Control and Prevention (“CDC”):
And specifically the following employees:
Carol Y. Crawford, Chief of the Digital Media Branch of the CDC Division of Public Affairs;
Jay Dempsey, Social-media Team Leader, Digital Media Branch, CDC Division of Public Affairs; and
Kate Galatas, CDC Deputy Communications Director.
The Federal Bureau of Investigation (“FBI”):
And specifically the following employees: Laura Dehmlow, Section Chief, FBI Foreign Influence Task Force;
Elvis M. Chan, Supervisory Special Agent of Squad CY-1 in the FBI San Francisco Division.
Reversed as to:
NIAID Officials
CISA Officials
State Department Officials.
Vacated except as to provision six as modified by the Fifth Circuit on September 8, 2023.
Stayed administratively pending application for Supreme Court review
Missouri v. Biden No. 23-30445 (5th Cir.) September 8, 2023
Missouri v Biden 22-cv-1213 (W.D. La.) July 4 2023