• by Wendy Davis  @wendyndavis, September 10, 2023

A federal appeals panel ruled Friday that the White House and other federal officials likely violated the First Amendment by pressuring social-media platforms to suppress posts about matters including vaccines and COVID-19.

The judges also issued an injunction that prohibits officials in the White House, Surgeon General's office, Federal Bureau of Investigation and Centers for Disease Control from attempting to “coerce or significantly encourage a platform’s content-moderation decisions.”

But the panel lifted some other restrictions that had been included in a broader injunction issued in July by U.S. District court Judge Terry Doughty in Monroe, Louisiana.

Friday's order, issued by a three-judge panel of the 5th Circuit Court of Appeals, came in a lawsuit brought by attorneys general in Louisiana and Missouri, and several individuals who said their posts relating to COVID-19 policies and vaccines were suppressed.

Among other allegations, they said the government violated the First Amendment by pressuring social platforms "to censor disfavored speakers and viewpoints by using threats of adverse government action."

Doughty sided with the plaintiffs, writing that the government's effort to prevent the spread of some social media posts regarding COVID-19, vaccines and other matters “depicts an almost dystopian scenario.”

He wrote: “During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian 'Ministry of Truth.'”

The Biden administration appealed the injunction to the 5th Circuit, arguing Doughty's order was so broad that it could be interpreted as prohibiting “virtually any government communication directed at social-media platforms regarding content moderation.”

The appellate panel largely agreed with Doughty that federal officials went too far in attempting to control content on social media platforms.

“On multiple occasions, the officials coerced the platforms into direct action via urgent, uncompromising demands to moderate content,” the judges wrote in a 74-page decision. “The officials threatened -- both expressly and implicitly -- to retaliate against inaction. Officials threw out the prospect of legal reforms and enforcement actions while subtly insinuating it would be in the platforms’ best interests to comply.”

At the same time, judges said the original injunction was was so vague and sweeping that it could have prohibited government officials from engaging in lawful activity.

For instance, one provision of the original injunction would have prohibited officials from “urging, encouraging, pressuring, or inducing in any manner social-media companies to change their guidelines for removing, deleting, suppressing, or reducing content containing protected free speech.”

The appellate judges wrote: “'Urging, encouraging, pressuring' or even 'inducing' action does not violate the Constitution unless and until such conduct crosses the line into coercion or significant encouragement.”

Doughty's original injunction was temporarily blocked by the 5th Circuit in July.

The new injunction won't take effect until at least September 18, to give the Biden administration time to decide whether to ask the Supreme Court to intervene.