A federal appeals court has affirmed that some federal agencies coerced social-media companies in violation of the First Amendment, but justices also narrowed a lower court decision in litigation advanced by Louisiana Attorney General Jeff Landry.
The Fifth Circuit Court of Appeals on Sept. 8 concluded that the White House, FBI, Centers for Disease Control and Prevention and the surgeon general violated the free speech rights of the plaintiffs after the agencies encouraged tech companies to censor disfavored speech.
But the appeals court found that the sprawling conclusions and injunction imposed against officials by a Louisiana federal district court were excessive. It rejected nine of 10 provisions of the injunction approved by the lower court and modified the 10th provision by saying defendants cannot coerce tech companies to suppress content by “intimating some form of punishment will follow a failure to comply” or moving to direct the companies’ decision-making mechanisms.
The court found that neither the National Institute of Allergy and Infectious Diseases nor the Cybersecurity and Infrastructure Security Agency (CISA) should have been part of the injunction since there was insufficient evidence to establish coercion.
“... the record shows, at most, that public statements by NIAID Director Anthony Fauci and other NIAID officials promoted the government’s scientific and policy views and attempted to discredit opposing ones – quintessential examples of government speech that do not run afoul of the First Amendment,” the court said.
A professional organization representing technology companies expressed satisfaction with the appeals court ruling.
“The Fifth Circuit’s decision in Missouri v. Biden is an important victory for free expression,” Nicole Saad Bembridge, NetChoice's associate director of litigation, told the Louisiana Record in an email. “Users and private social media services are entitled to content-moderation decisions made free of government coercion, whether that coercion comes from the political left or right.”
The Fifth Circuit’s decision narrowed and defined the legal boundaries of government “jawboning,” according to Bembridge, but it also allowed for lawful communications between the government and tech companies.
“The judges’ careful ruling strikes the right balance for freedom of speech online,” she said.
The plaintiffs’ viewpoints that were targeted by federal officials included the COVID-19 lab-leak theory, vaccine side-effects, election fraud allegations and the Hunter Biden laptop disclosures.
“This is a significant victory for the American people,” Landry said in a prepared statement. “And it confirms what we have said from the very beginning: The federal government is not permitted to engage in viewpoint suppression, no matter your political ideology.”