Court upholds free speech in White House censorship case

A New Orleans-based federal appeals court Friday upheld a lower court ruling in July that blocked the White House, FBI, Centers for Disease Control and Prevention, and other federal agencies from influencing social media platforms’ content moderation decisions.

Friday’s unanimous opinion by a panel of the 5th U.S. Circuit Court of Appeals found that the White House both encouraged and coerced Facebook, Twitter (now X), YouTube, and Google to take down flagged content and to close user accounts.

Shortly after the 2020 election, Biden administration officials enlisted the companies in tamping down supposed misinformation about topics such as the COVID-19 lab-leak theory, pandemic lockdowns, vaccine side effects, election fraud, and the discovery of Hunter Biden’s laptop.

The court upheld the lower court’s decision rejecting the Biden administration’s argument that officials’ requests or persuasion attempts were permissible government speech.

“On multiple occasions, the officials coerced the platforms into direct action via urgent, uncompromising demands to moderate content,” wrote the three circuit judges in an unsigned opinion. They recited a litany of ways in which administration officials threatened to take action—including legal reforms and enforcement actions—if the companies did not comply.

The court noted that officials were “persistent and angry” when posts they asked to be removed were not taken down. They asked things like “how does something like [this] happen” and “what good is” flagging if companies did not remove the content—threatening further action.

“In sum, we find that the White House officials, in conjunction with the surgeon general’s office, coerced and significantly encouraged the platforms to moderate content,” the court concluded. While the judges found the FBI and CDC less coercive, they concluded both agencies also significantly pressured the platforms’ content moderators—all in violation of the First Amendment.

While upholding the district court’s order, the appeals court pared it back. Other than the White House, surgeon general’s office, CDC, and FBI, the court found that other governmental agencies—including the State Department—swept up by the order did not significantly coerce the platforms in their content moderation and so did nothing illegal.

Judges also trimmed what they termed a vague and overbroad prohibition on government agencies interacting with the companies. They left in place a single provision that bars “coerc[ing] or significantly encourag[ing] social-media companies to remove, delete, suppress, or reduce … posted social-media content containing protected free speech.”

Republican attorneys general in Louisiana and Missouri filed the lawsuit last year. Epidemiologists Dr. Jayanta Bhattacharya and Dr. Martin Kulldorff joined the lawsuit as individuals, expressing concern about the damaging health effects of COVID-19 lockdowns.

Late Friday, Missouri Attorney General Andrew Bailey, a Republican, hailed the ruling as one that would “halt the biggest violation of the First Amendment in our nation’s history” and vowed he would continue to fight for fundamental freedoms. “The first brick was laid in the wall of separation between tech and state on July 4,” said Bailey, referring to the district court’s earlier ruling. “Today’s ruling is yet another brick.”

Bhattacharya, a Stanford professor and son of Indian immigrants who left India during the authoritarian rule of Indira Gandhi, also celebrated the ruling. “As I read the decision, I was overcome with emotion,” he wrote in The Free Press. “I think my father, who died when I was 20, would be proud that I played a role in this. I know my mother is.”

Circuit court judges put a hold on their ruling for 10 days to allow the U.S. Department of Justice time to decide whether to appeal to the Supreme Court. The Biden administration has not yet commented on the ruling. If there is no appeal, the case will proceed to trial on whether the court’s order should be made permanent.