An American flag flies on top of the White House, Feb. 12, 2022, in Washington. A federal appeals court Friday, Sept. 8, 2023, significantly whittled down a lower court’s order curbing Biden administration communications with social media companies over controversial content about COVID-19 and other issues.
Manuel Balce Ceneta/AP
Manuel Balce Ceneta/AP
The U.S. Fifth Circuit Court of Appeals has upheld an injunction restricting how the government can communicate with social media companies, which the Biden administration warns will stymie efforts to counter false and misleading claims about elections, public health and other important topics.
The panel of judges, all GOP nominees, say that the administration’s efforts to flag what it considered to be false and harmful content about COVID, the 2020 election and other topics that violated the social media companies’ policies likely amount to a violation of the First Amendment. The court found that Biden Administration officials coerced and threatened the social media companies to take down content.
“The officials have engaged in a broad pressure campaign designed to coerce social-media companies into suppressing speakers, viewpoints, and content disfavored by the government,” a three-judge panel wrote. “The harms that radiate from such conduct extend far beyond just the Plaintiffs; it impacts every social-media user.”
Still, the order limits the scale of the injunction, which had previously included the State Department, the Department of Homeland Security, Health and Human Services. Today’s order applies only to the White House, the surgeon general, the CDC and FBI.
The preliminary injunction limiting the government’s communications was issued on July 4 by District Court Judge Terry Doughty, in a lawsuit brought against the Biden administration by the Republican attorneys general of Missouri and Louisiana.
The AGs claim the government is illegally colluding with social media companies to suppress protected free speech, by urging platforms such as Facebook and Twitter to take action on posts contributing to vaccine hesitancy and other hot-button issues.
The lawsuit stems from long-standing Republican complaints that social media companies censor conservatives for their views. It comes as the platforms are backing away from the more aggressive stance on content moderation they took the wake of the 2016 presidential election, when Russia tried to use social media to manipulate American voters, and the COVID-19 pandemic, when falsehoods and conspiracy theories about the disease and vaccines circulated widely online. Independent researchers who study the spread of disinformation are also coming under political and legal pressure from conservatives and their allies who allege they are part of a broad conspiracy to silence particular points of view.
Judge Doughty’s injunction was wide-ranging, barring several federal departments, agencies and some specific officials from a range of communications with social media companies, including notifying platforms about specific posts that may be against their own rules or asking for information about content moderation efforts. It provided exceptions for the government to inform social media companies about posts involving criminal activity, national security threats, and foreign interference in elections.
Lawyers for the Biden administration argued the injunction was overly broad and vague, warning: “It would stymie the government’s legitimate and crucial efforts to address threats to the public welfare.”
Government agencies regularly communicate with tech companies, including flagging posts that may violate the companies’ rules, and discussing national security issues like hacking and election protection. The Biden White House has regularly criticized tech companies for not doing enough to combat false and misleading claims about public health and elections on social media.
The Trump administration also communicated with platforms about content it objected to. After Twitter fact-checked then-President Donald Trump’s tweets in 2020, Trump signed an executive order taking aim at an important legal shield for online platforms.
The Biden administration says it isn’t telling social media companies what to take down or how to set their policies, but that it has an interest in promoting accurate information about urgent issues like public health and elections, and curbing the spread of illegal material including terrorism and child sex abuse.
Even as Doughty’s injunction was put on pause while the appeals court considered it, the ruling had a chilling effect. The State Department reportedly canceled a standing weekly meeting with Facebook officials to discuss the 2024 election.