Fifth Cir. Puts Hold on Biden Social Media Contacts Injunction

The Fifth Circuit Tuesday withdrew its order barring some members of the Biden administration from pressuring social media platforms over moderating vaccine misinformation, while a First Amendment suit by two Republican attorneys general proceeds.

The court issued the order one day after it had granted a request for rehearing by Missouri and Louisiana, which sought to extend the scope of the preliminary injunction. The court instead ordered that the Biden administration respond to the petition for rehearing by Sept. 28, and ordered that the preliminary injunction issued by the US District Court for the Western District of Louisiana remain stayed pending resolution of the petition for panel rehearing.

The appeals court’s reversal coincides with a US Supreme Court filing by the US Solicitor General citing the “unexplained grant of panel rehearing” as additional grounds to stay the preliminary injunction.

The US Court of Appeals for the Fifth Circuit had upheld but limited the scope of the trial court’s injunction, finding the states are likely to succeed on the merits of their First Amendment claims. The three-judge panel narrowed the injunction to the White House, the Surgeon General, the Centers for Disease Control, and the FBI.

• In their petition for rehearing, the states said the panel “overlooked or misapprehended material points of fact relevant to the injunction” against the Cybersecurity and Infrastructure Security Agency, the State Department’s Global Engagement Center, and the Election Integrity Partnership/Virality Project
• The CISA “serves as the ‘nerve center’ of federal censorship efforts,” and its actions “constitute particularly egregious violations of the First Amendment,” the A.G.'s say
• The suit alleges the administration worked with Meta, Twitter, and YouTube to censor free speech

The states are represented by their Attorney General’s Offices. Louisiana is additionally represented by James Otis Law Group LLC.

The case is Missouri v. Biden, 5th Cir., No. 23-30445, 9/26/23.