Biden Officials Blocked From Encouraging Social Media Moderation

Biden administration officials were again barred by the Fifth Circuit from pushing social media companies to moderate content on their websites.

The US Court of Appeals for the Fifth Circuit partially affirmed the decision of a lower court to preliminarily enjoin certain members of the administration for allegedly infringing the First Amendment rights of users who posted “divisive” content about Covid-19, election fraud, and Hunter Biden’s laptop.

“The platforms, in capitulation to state-sponsored pressure, changed their moderation policies,” Tuesday’s per curiam opinion said. “The platforms explicitly recognized that.”

The opinion comes one week after the appeals court withdrew a similar order to block officials from pressuring the sites. The Fifth Circuit agreed to rehear its previous decision, withdrew that previous decision by the panel, and substituted a new one.

Tuesday’s decision limits the lower court’s preliminary injunction to affect only the White House, the Surgeon General, the Centers for Disease Control and Prevention, the Federal Bureau of Investigation, and the Cybersecurity and Infrastructure Security Agency. The appeals court panel reversed the injunction as to all other officials.

The Fifth Circuit’s original decision, which was withdrawn in favor of Tuesday’s opinion, hadn’t included CISA among the enjoined parties.

“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,” the appeals court said.

Under the injunction, the officials “cannot coerce or significantly encourage a platform’s content-moderation decisions,” the opinion said.

Republican attorneys general from Missouri and Louisiana allege Biden administration officials pressured employees from Meta’s Facebook, Alphabet’s YouTube, and X (formerly known as Twitter) to censor content.

Judges Edith Brown Clement, Jennifer Walker Elrod, and Don R. Willet comprised the panel.

The states are represented by their respective Offices of the Attorney General. Louisiana is additionally represented by James Otis Law Group LLC.

The case is Missouri v. Biden, 5th Cir., No. 23-30445, 10/3/23.