A federal appeals court has partially upheld an injunction preventing the federal government from acting to “significantly encourage” content moderation decisions by social media companies.
Last May, the States of Missouri and Louisiana, along with several private individuals, launched legal action against President Biden and numerous federal agencies and officials, on the basis that the federal government was impermissibly dictating the content moderation decisions of social media companies, in violation of the First Amendment. Discovery in the case has been explosive, with smoking-gun evidence that federal officials were exerting intense pressure on social media companies.
In light of the evidence, District Court Judge Terry Doughty in Louisiana issued a temporary injunction on July 4, 2023, on the basis that the plaintiffs were likely to win the case and were continuing to suffer harm in the meantime, ordering the federal government to stop telling social media companies what to do. (The hard-hitting and broadly applicable injunction was covered by EIR on July 7 and 11.)
The government appealed the injunction to the 5th Circuit Court of Appeals, which ruled on Friday, September 8, that the injunction would be partially maintained and a ten-day stay would be implemented to give the government the chance to appeal to the Supreme Court. The three judge panel of the Fifth Circuit concluded: “The district court’s judgment is affirmed with respect to the White House, the Surgeon General, the CDC, and the FBI, and reversed as to all other officials.” Also, the entire injunction is temporarily paused: “The Appellants’ request to extend the administrative stay for ten days following the date hereof pending an application to the Supreme Court of the United States is granted, and the matter is stayed.”
Although the Fifth Circuit has reduced the power of the injunction, it is extremely significant that it was maintained in part. Of the ten restrictions given earlier by Judge Doughty, only one remains, preventing the defendants from acting 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.”
The judges wrote that the administration had likely “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences.” They cite multiple emails, which reveal that the government officials “were not shy in their requests” but rather were sometimes “persistent and angry” and demanded that posts be removed “ASAP.”
This preliminary injunction, based on the urgency of providing more immediate relief to plaintiffs who seem quite likely to end up succeeding in the actual trial itself, which has yet to take place.
Missouri Attorney General Andrew Bailey said, via a press release, “We filed this landmark lawsuit against dozens of officials in the federal government to halt the biggest violation of the First Amendment in our nation’s history. The first brick was laid in the wall of separation between tech and state on July 4. Today’s ruling is yet another brick… Missouri will continue to lead the way in the fight to defend our most fundamental freedoms.”
The Fifth Circuit’s 74-page ruling is available here.
