The 5th Circuit Court of Appeals ruled last week that the White House as an entity has violated the First Amendment by manipulating speech and enjoined it from coercing or encouraging the content decisions made by social media platforms.
"It applies to the White House, the FBI, and the CDC," said Zhonette Brown, senior litigation counsel with New Civil Liberties Alliance. "This does not encompass the Cyber and Infrastructure Security Agency, the State Department or the National Institute of Allergy and Infectious Disease."
Brown is among the attorneys who are of counsel in State of Missouri ex rel. Schmitt et al. v. Joseph R. Biden, Jr. et al, which alleges that YouTube, Meta, and Twitter acted as an arm of the U.S. government in violation of the First Amendment especially in the case of conservative users who disagree with U.S. Pres. Joe Biden’s administration.
Brown
| NCLA website
As previously reported in the St. Louis Record, the attorneys general of Louisiana and Missouri originally filed the lawsuit in the Western District of Louisiana in May 2022. Western District of Louisiana Judge Terry Doughty granted a preliminary injunction but the federal government appealed to the 5th Circuit Court of Appeals in New Orleans.
"We don't think that this Circuit took it far enough but obviously the case will continue regardless and so we will continue to gather evidence and add back in those additional defendants when it comes to the final injunction," Brown told the St. Louis Record.
Plaintiffs include the State of Missouri, the State of Louisiana, Aaron Kheriaty, Martin Kulldorff, Jim Hoft, Jayanta Bhattacharya and Jill Hines
Although prohibitions one, two, three, four, five, seven, eight, nine, and 10 of the injunction requested by the conservative plaintiffs were vacated, the federal appellate judges allowed provision six to stand with some revision.
“Under the modified injunction, the enjoined Defendants cannot coerce or significantly encourage a platform’s content-moderation decisions,” the Sept. 8 order states. “Such conduct includes threats of adverse consequences—even if those threats are not verbalized and never materialize—so long as a reasonable person would construe a government’s message as alluding to some form of punishment…The government cannot subject the platforms to legal, regulatory, or economic consequences (beyond reputational harms) if they do not comply with a given request.”
The government's motion for a stay pending appeal was denied as moot. In the event it files a Petition for Writ of Certiari with the U.S Supreme Court, however, the 5th Circuit Court of judges agreed to extend an administrative stay for ten days.
“I think the federal government is evaluating their options because although they were able to scale the preliminary injunction back, it’s not great to have a finding that the White House engaged in censorship and to have this injunction against the White House and the FBI," Brown added.