State of Missouri v. Biden ( 2023 )

Case: 23-30445 Document: 00516918271 Page: 1 Date Filed: 10/03/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
October 3, 2023
No. 23-30445 Lyle W. Cayce
____________ Clerk
State of Missouri; State of Louisiana; Aaron Kheriaty;
Martin Kulldorff; Jim Hoft; Jayanta Bhattacharya;
Jill Hines,
Plaintiffs—Appellees,
versus
Joseph R. Biden, Jr.; Vivek H. Murthy; Xavier Becerra;
Department of Health & Human Services; Anthony
Fauci; Et al.,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:22-CV-1213
______________________________
ON PETITION FOR REHEARING
Before Clement, Elrod, and Willett, Circuit Judges.
Per Curiam:
The petition for panel rehearing is GRANTED. We WITHDRAW
our previous opinion and substitute the following.
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A group of social-media users and two states allege that numerous
federal officials coerced social-media platforms into censoring certain social-
media content, in violation of the First Amendment. We agree, but only as to
some of those officials. So, we AFFIRM in part, REVERSE in part,
VACATE the injunction in part, and MODIFY the injunction in part.
I.
For the last few years—at least since the 2020 presidential
transition—a group of federal officials has been in regular contact with nearly
every major American social-media company about the spread of
“misinformation” on their platforms. In their concern, those officials—
hailing from the White House, the CDC, the FBI, and a few other agencies—
urged the platforms to remove disfavored content and accounts from their
sites. And, the platforms seemingly complied. They gave the officials access
to an expedited reporting system, downgraded or removed flagged posts, and
deplatformed users. The platforms also changed their internal policies to
capture more flagged content and sent steady reports on their moderation
activities to the officials. That went on through the COVID-19 pandemic, the
2022 congressional election, and continues to this day.
Enter this lawsuit. The Plaintiffs—three doctors, a news website, a
healthcare activist, and two states 1—had posts and stories removed or
_____________________
1
Specifically, the Plaintiffs are (1) Jayanta Bhattacharya and Martin Kulldorff, two
epidemiologists who co-wrote the Great Barrington Declaration, an article criticizing
COVID-19 lockdowns; (2) Jill Hines, an activist who spearheaded “Reopen Louisiana”;
(3) Aaron Kheriaty, a psychiatrist who opposed lockdowns and vaccine mandates; (4) Jim
Hoft, the owner of the Gateway Pundit, a once-deplatformed news site; and (5) Missouri
and Louisiana, who assert their sovereign and quasi-sovereign interests in protecting their
citizens and the free flow of information. Bhattacharya, Kulldorff, Hines, Kheriaty, and
Hoft, collectively, are referred to herein as the “Individual Plaintiffs.” Missouri and
Louisiana, together, are referred to as the “State Plaintiffs.”
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downgraded by the platforms. Their content touched on a host of divisive
topics like the COVID-19 lab-leak theory, pandemic lockdowns, vaccine side-
effects, election fraud, and the Hunter Biden laptop story. The Plaintiffs
maintain that although the platforms stifled their speech, the government
officials were the ones pulling the strings—they “coerced, threatened, and
pressured [the] social-media platforms to censor [them]” through private
communications and legal threats. So, they sued the officials 2 for First
Amendment violations and asked the district court to enjoin the officials’
conduct. In response, the officials argued that they only “sought to mitigate
the hazards of online misinformation” by “calling attention to content” that
violated the “platforms’ policies,” a form of permissible government speech.
The district court agreed with the Plaintiffs and granted preliminary
injunctive relief. In reaching that decision, it reviewed the conduct of several
federal offices, but only enjoined the White House, the Surgeon General, the
CDC, the FBI, the National Institute of Allergy and Infectious Diseases
(NIAID), the Cybersecurity and Infrastructure Security Agency (CISA), and
_____________________
2
The defendant-officials include (1) the President; (2) his Press Secretary; (3) the
Surgeon General; (4) the Department of Health and Human Services; (5) the HHS’s
Director; (6) Anthony Fauci in his capacity as the Director of the National Institute of
Allergy and Infectious Diseases; (7) the NIAID; (8) the Centers for Disease Control; (9)
the CDC’s Digital Media Chief; (10) the Census Bureau; (11) the Senior Advisor for
Communications at the Census Bureau; (12) the Department of Commerce; (13) the
Secretary of the Department of Homeland Security; (14) the Senior Counselor to the
Secretary of the DHS; (15) the DHS; (16) the Cybersecurity and Infrastructure Security
Agency; (17) the Director of CISA; (18) the Department of Justice; (19) the Federal Bureau
of Investigation; (20) a special agent of the FBI; (21) a section chief of the FBI; (22) the
Food and Drug Administration; (23) the Director of Social Media at the FDA; (24) the
Department of State; (25) the Department of Treasury; (26) the Department of
Commerce; and (27) the Election Assistance Commission. The Plaintiffs also sued a host
of various advisors, officials, and deputies in the White House, the FDA, the CDC, the
Census Bureau, the HHS, and CISA. Note that some of these officials were not enjoined
and, therefore, are not mentioned again in this opinion.
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the Department of State. We briefly review—per the district court’s order
and the record—those officials’ conduct.
A.
Considering their close cooperation and the ministerial ecosystem, we
take the White House and the Surgeon General’s office together. Officials
from both offices began communicating with social media companies—
including Facebook, Twitter (now known as “X”), YouTube, and Google—
in early 2021. From the outset, that came with requests to take down flagged
content. In one email, a White House official told a platform to take a post
down “ASAP,” and instructed it to “keep an eye out for tweets that fall in
this same [] genre” so that they could be removed, too. In another, an official
told a platform to “remove [an] account immediately”—he could not “stress
the degree to which this needs to be resolved immediately.” Often, those
requests for removal were met.
But, the White House officials did not only flag content. Later that
year, they started monitoring the platforms’ moderation activities, too. In
that vein, the officials asked for—and received—frequent updates from the
platforms. Those updates revealed, however, that the platforms’ policies
were not clear-cut and did not always lead to content being demoted. So, the
White House pressed the platforms. For example, one White House official
demanded more details and data on Facebook’s internal policies at least
twelve times, including to ask what was being done to curtail “dubious” or
“sensational” content, what “interventions” were being taken, what
“measurable impact” the platforms’ moderation policies had, “how much
content [was] being demoted,” and what “misinformation” was not being
downgraded. In one instance, that official lamented that flagging did not
“historically mean[] that [a post] was removed.” In another, the same official
told a platform that they had “been asking [] pretty directly, over a series of
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conversations” for “what actions [the platform has] been taking to mitigate”
vaccine hesitancy, to end the platform’s “shell game,” and that they were
“gravely concerned” the platform was “one of the top drivers of vaccine
hesitancy.” Another time, an official asked why a flagged post was “still up”
as it had “gotten pretty far.” The official queried “how does something like
that happen,” and maintained that “I don’t think our position is that you
should remove vaccine hesitant stuff,” but “slowing it down seems
reasonable.” Always, the officials asked for more data and stronger
“intervention[s].”
From the beginning, the platforms cooperated with the White House.
One company made an employee “available on a regular basis,” and another
gave the officials access to special tools like a “Partner Support Portal”
which “ensure[d]” that their requests were “prioritized automatically.”
They all attended regular meetings. But, once White House officials began to
demand more from the platforms, they seemingly stepped-up their efforts to
appease the officials. When there was confusion, the platforms would call to
“clear up” any “misunderstanding[s]” and provide data detailing their
moderation activities. When there was doubt, they met with the officials,
tried to “partner” with them, and assured them that they were actively trying
to “remove the most harmful COVID-19 misleading information.” At times,
their responses bordered on capitulation. One platform employee, when
pressed about not “level[ing]” with the White House, told an official that he
would “continue to do it to the best of [his] ability, and [he will] expect [the
official] to hold [him] accountable.” Similarly, that platform told the Surgeon
General that “[w]e’re [] committed to addressing the [] misinformation that
you’ve called on us to address.” The platforms were apparently eager to stay
in the officials’ good graces. For example, in an effort to get ahead of a
negative news story, Facebook preemptively reached out to the White House
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officials to tell them that the story “doesn’t accurately represent the problem
or the solutions we have put in place.”
The officials were often unsatisfied. They continued to press the
platforms on the topic of misinformation throughout 2021, especially when
they seemingly veered from the officials’ preferred course. When Facebook
did not take a prominent pundit’s “popular post[]” down, a White House
official asked “what good is” the reporting system, and signed off with “last
time we did this dance, it ended in an insurrection.” In another message, an
official sent Facebook a Washington Post article detailing the platform’s
alleged failures to limit misinformation with the statement “[y]ou are hiding
the ball.” A day later, a second official replied that they felt Facebook was
not “trying to solve the problem” and the White House was
“[i]nternally . . . considering our options on what to do about it.” In another
instance, an official—demanding “assurances” that a platform was taking
action—likened the platform’s alleged inaction to the 2020 election, which
it “helped increase skepticism in, and an insurrection which was plotted, in
large part, on your platform.”
To ensure that problematic content was being taken down, the
officials—via meetings and emails—pressed the platforms to change their
moderation policies. For example, one official emailed Facebook a document
recommending changes to the platform’s internal policies, including to its
deplatforming and downgrading systems, with the note that “this is
circulating around the building and informing thinking.” In another instance,
the Surgeon General asked the platforms to take part in an “all-of-society”
approach to COVID by implementing stronger misinformation
“monitoring” programs, redesigning their algorithms to “avoid amplifying
misinformation,” targeting “repeat offenders,” “[a]mplify[ing]
communications from trusted . . . experts,” and “[e]valuat[ing] the
effectiveness of internal policies.”
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The platforms apparently yielded. They not only continued to take
down content the officials flagged, and provided requested data to the White
House, but they also changed their moderation policies expressly in
accordance with the officials’ wishes. For example, one platform said it knew
its “position on [misinformation] continues to be a particular concern” for
the White House, and said it was “making a number of changes” to capture
and downgrade a “broader set” of flagged content. The platform noted that,
in line with the officials’ requests, it would “make sure that these additional
[changes] show results—the stronger demotions in particular should deliver
real impact.” Another time, a platform represented that it was going to
change its moderation policies and activities to fit with express guidance from
the CDC and other federal officials. Similarly, one platform noted that it was
taking down flagged content which seemingly was not barred under previous
iterations of its moderation policy.
Relatedly, the platforms enacted several changes that coincided with
the officials’ aims shortly after meeting with them. For example, one
platform sent out a post-meeting list of “commitments” including a policy
“change[]” “focused on reducing the virality” of anti-vaccine content even
when it “does not contain actionable misinformation.” On another occasion,
one platform listed “policy updates . . . regarding repeat misinformation”
after meeting with the Surgeon General’s office and signed off that “[w]e
think there’s considerably more we can do in partnership with you and your
teams to drive behavior.”
Even when the platforms did not expressly adopt changes, though,
they removed flagged content that did not run afoul of their policies. For
example, one email from Facebook stated that although a group of posts did
not “violate our community standards,” it “should have demoted them
before they went viral.” In another instance, Facebook recognized that a
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popular video did not qualify for removal under its policies but promised that
it was being “labeled” and “demoted” anyway after the officials flagged it.
At the same time, the platforms often boosted the officials’ activities
at their request. For example, for a vaccine “roll out,” the officials shared
“what [t]he admin’s plans are” and “what we’re seeing as the biggest
headwinds” that the platforms could help with. The platforms “welcome[d]
the opportunity” to lend a hand. Similarly, when a COVID vaccine was
halted, the White House asked a platform to—through
“hard . . . intervention[s]” and “algorithmic amplification”—“make sure
that a favorable review reaches as many people” as possible to stem the
spread of alleged misinformation. The officials also asked for labeling of posts
and a 24-hour “report-back” period to monitor the public’s response. Again,
the platforms obliged—they were “keen to amplify any messaging you want
us to project,” i.e., “the right messages.” Another time, a platform told the
White House it was “eager” to help with vaccine efforts, including by
“amplify[ing]” content. Similarly, a few months later, after the White House
shared some of the “administration’s plans” for vaccines in an industry
meeting, Facebook reiterated that it was “committed to the effort of
amplifying the rollout of [those] vaccines.”
Still, White House officials felt the platforms were not doing enough.
One told a platform that it “remain[ed] concerned” that the platform was
encouraging vaccine hesitancy, which was a “concern that is shared at the
highest (and I mean highest) levels of the [White House].” So, the official
asked for the platform’s “road map to improvement” and said it would be
“good to have from you all . . . a deeper dive on [misinformation] reduction.”
Another time, the official responded to a moderation report by flagging a
user’s account and saying it is “[h]ard to take any of this seriously when
you’re actively promoting anti-vaccine pages.” The platform subsequently
“removed” the account “entirely” from its site, detailed new changes to the
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company’s moderation policies, and told the official that “[w]e clearly still
have work to do.” The official responded that “removing bad information”
is “one of the easy, low-bar things you guys [can] do to make people like me
think you’re taking action.” The official emphasized that other platforms had
“done pretty well” at demoting non-sanctioned information, and said “I
don’t know why you guys can’t figure this out.”
The officials’ frustrations reached a boiling point in July of 2021. That
month, in a joint press conference with the Surgeon General’s office, the
White House Press Secretary said that the White House “expect[s] more”
from the platforms, including that they “consistently take action against
misinformation” and “operate with greater transparency and
accountability.” Specifically, the White House called on platforms to adopt
“proposed changes,” including limiting the reach of “misinformation,”
creating a “robust enforcement strategy,” taking “faster action” because
they were taking “too long,” and amplifying “quality information.” The
Press Secretary said that the White House “engag[es] with [the platforms]
regularly and they certainly understand what our asks are.” She also
expressly noted that several accounts, despite being flagged by the White
House, “remain active” on a few platforms.
The Surgeon General also spoke at the press conference. He said the
platforms were “one of the biggest obstacles” to controlling the COVID
pandemic because they had “enabled misinformation to poison” public
discourse and “have extraordinary reach.” He labeled social-media-based
misinformation an “urgent public health threat[]” that was “literally
costing . . . lives.” He asked social-media companies to “operate with greater
transparency and accountability,” “monitor misinformation more closely,”
and “consistently take action against misinformation super-spreaders on
their platforms.” The Surgeon General contemporaneously issued a public
advisory “calling out social media platforms” and saying they “have a role to
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play to improve [] health outcomes.” The next day, President Biden said that
the platforms were “killing people” by not acting on misinformation. Then,
a few days later, a White House official said they were “reviewing” the legal
liability of platforms—noting “the president speak[s] very aggressively
about” that—because “they should be held accountable.”
The platforms responded with total compliance. Their answer was
four-fold. First, they capitulated to the officials’ allegations. The day after
the President spoke, Facebook asked what it could do to “get back to a good
place” with the White House. It sought to “better understand . . . what the
White House expects from us on misinformation going forward.” Second,
the platforms changed their internal policies. Facebook reached out to see
“how we can be more transparent,” comply with the officials’ requests, and
“deescalate” any tension. Others fell in line, too—YouTube and Google told
an official that they were “working on [it]” and relayed the “steps they are
currently taking” to do better. A few days later, Facebook told the Surgeon
General that “[w]e hear your call for us to do more,” and wanted to “make
sure [he] saw the steps [it took]” to “adjust policies on what we are removing
with respect to misinformation,” including “expand[ing] the group of false
claims” that it removes. That included the officials’ “specific
recommendations for improvement,” and the platform “want[ed] to make
sure to keep [the Surgeon General] informed of [its] work on each.”
Third, the platforms began taking down content and deplatforming
users they had not previously targeted. For example, Facebook started
removing information posted by the “disinfo dozen”—a group of influencers
identified as problematic by the White House—despite earlier
representations that those users were not in violation of their policies. In
general, the platforms had pushed back against deplatforming users in the
past, but that changed. Facebook also made other pages that “had not yet
met their removal thresholds[] more difficult to find on our platform,” and
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promised to send updates and take more action. A month later, members of
the disinfo dozen were deplatformed across several sites. Fourth, the
platforms continued to amplify or assist the officials’ activities, such as a
vaccine “booster” campaign.
Still, the White House kept the pressure up. Officials continuously
expressed that they would keep pushing the platforms to act. And, in the
following year, the White House Press Secretary stressed that, in regard to
problematic users on the platforms, the “President has long been concerned
about the power of large” social media companies and that they “must be
held accountable for the harms they cause.” She continued that the President
“has been a strong supporter of fundamental reforms to achieve that goal,
including reforms to [S]ection 230, enacting antitrust reforms, requiring
more transparency, and more.” Per the officials, their back-and-forth with
the platforms continues to this day.
B.
Next, we turn to the CDC. Much like the White House officials, the
CDC tried to “engage on a [] regular basis” with the platforms. They also
received reports on the platforms’ moderation activities and policy updates.
And, like the other officials, the CDC also flagged content for removal that
was subsequently taken down. In one email, an official mentioned sixteen
posts and stated, “[W]e are seeing a great deal of misinfo [] that we wanted
to flag for you all.” In another email, CDC officials noted that flagged content
had been removed. And, the CDC actively sought to promote its officials’
views over others. For example, they asked “what [was] being done on the
amplification-side” of things.
Unlike the other officials, though, the CDC officials also provided
direct guidance to the platforms on the application of the platforms’ internal
policies and moderation activities. They did so in three ways. First, CDC
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officials authoritatively told the platforms what was (and was not)
misinformation. For example, in meetings—styled as “Be On the Lookout”
alerts—officials educated the platforms on “misinformation[] hot topics.”
Second, CDC officials asked for, or at least encouraged, harmonious changes
to the platforms’ moderation policies. One platform noted that “[a]s soon as
the CDC updates [us],” it would change information on its website to comply
with the officials’ views. In that same email, the platform said it was
expanding its “misinfo policies” and it was “able to make this change based
on the conversation we had last week with the CDC.” In another email, a
platform noted “several updates to our COVID-19 Misinformation and
Harm policy based on your inputs.” Third, through its guidance, the CDC
outright directed the platforms to take certain actions. In one post-meeting
email, an official said that “as mentioned on the call, any contextual
information that can be added to posts” on some alleged “disinformation”
“could be very effective.”
Ultimately, the CDC’s guidance informed, if not directly affected, the
platforms’ moderation decisions. The platforms sought answers from the
officials as to whether certain controversial claims were “true or false” and
whether related posts should be taken down as misleading. The CDC officials
obliged, directing the platforms as to what was or was not misinformation.
Such designations directly controlled the platforms’ decision-making
process for the removal of content. One platform noted that “[t]here are
several claims that we will be able to remove as soon as the CDC debunks
them; until then, we are unable to remove them.”
C.
Next, we consider the conduct of the FBI officials. The agency’s
officials regularly met with the platforms at least since the 2020 election. In
these meetings, the FBI shared “strategic information with [] social-media
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companies” to alert them to misinformation trends in the lead-up to federal
elections. For example, right before the 2022 congressional election, the FBI
tipped the platforms off to “hack and dump” operations from “state-
sponsored actors” that would spread misinformation through their sites. In
another instance, they alerted the platforms to the activities and locations of
“Russian troll farms.” The FBI apparently acquired this information from
ongoing investigations.
Per their operations, the FBI monitored the platforms’ moderation
policies, and asked for detailed assessments during their regular meetings.
The platforms apparently changed their moderation policies in response to
the FBI’s debriefs. For example, some platforms changed their “terms of
service” to be able to tackle content that was tied to hacking operations.
But, the FBI’s activities were not limited to purely foreign threats. In
the build up to federal elections, the FBI set up “command” posts that would
flag concerning content and relay developments to the platforms. In those
operations, the officials also targeted domestically sourced “disinformation”
like posts that stated incorrect poll hours or mail-in voting procedures.
Apparently, the FBI’s flagging operations across-the-board led to posts being
taken down 50% of the time.
D.
Next, we look at CISA. CISA—working in close connection with the
FBI—held regular industry meetings with the platforms concerning their
moderation policies, pushing them to adopt CISA’s proposed practices for
addressing “mis-, dis-, and mal-information.” CISA also engaged in
“switchboarding” operations, meaning, at least in theory, that CISA officials
acted as an intermediary for third parties by forwarding flagged content from
them to the platforms. For example, during a federal election, CISA officials
would receive “something on social media that [local election officials]
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deemed to be disinformation aimed at their jurisdiction” and, in turn, CISA
would “share [that] with the appropriate social media compan[y].” But,
CISA’s role went beyond mere information sharing. Like the CDC for
COVID-related claims, CISA told the platforms whether certain election-
related claims were true or false. CISA’s actions apparently led to
moderation policies being altered and content being removed or demoted by
the recipient platforms.
E.
Finally, we briefly discuss the remaining offices, namely the NIAID
and the State Department. Generally speaking, the NIAID did not have
regular contact with the platforms or flag content. Instead, NIAID officials
were—as evidenced by internal emails—concerned with “tak[ing] down”
(i.e., discrediting) opposing scientific or policy views. On that front, Director
Anthony Fauci publicly spoke in favor of certain ideas (e.g., COVID
lockdowns) and against others (e.g., the lab-leak theory). In doing so, NIAID
officials appeared on podcasts and livestreams on some of the platforms.
Apparently, the platforms subsequently demoted posts that echoed or
supported the discredited views.
The State Department, on the other hand, communicated directly
with the platforms. It hosted meetings that were meant to “facilitate []
communication” with the platforms. In those meetings, it educated the
platforms on the “tools and techniques” that “malign” or “foreign
propaganda actors” (e.g., terrorist groups, China) were using to spread
misinformation. Generally, the State Department officials did not flag
content, suggest policy changes, or reciprocally receive data during those
meetings.
* * *
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Relying on the above record, the district court concluded that the
officials, via both private and public channels, asked the platforms to remove
content, pressed them to change their moderation policies, and threatened
them—directly and indirectly—with legal consequences if they did not
comply. And, it worked—that “unrelenting pressure” forced the platforms
to act and take down users’ content. Notably, though, those actions were not
limited to private actors. Accounts run by state officials were often subject to
censorship, too. For example, one platform removed a post by the Louisiana
Department of Justice—which depicted citizens testifying against public
policies regarding COVID—for violating its “medical misinformation
policy” by “spread[ing] medical misinformation.” In another instance, a
platform took down a Louisiana state legislator’s post discussing COVID
vaccines. Similarly, one platform removed several videos, namely
testimonials regarding COVID, posted by St. Louis County. So, the district
court reasoned, the Plaintiffs were “likely to succeed” on their claim because
when the platforms moderated content, they were acting under the coercion
(or significant encouragement) of government officials, in violation of the
First Amendment, at the expense of both private and governmental actors.
In addition, the court found that considerations of equity weighed in
favor of an injunction because of the clear need to safeguard the Plaintiffs’
First Amendment rights. Finally, the court ruled that the Plaintiffs had
standing to bring suit under several different theories, including direct First
Amendment censorship and, for the State Plaintiffs, quasi-sovereign
interests as well. Consequently, the district court entered an injunction
against the officials barring them from an assortment of activities, including
“meeting with,” “communicat[ing]” with, or “flagging content” for social-
media companies “for the purpose of urging, encouraging, pressuring, or
inducing in any manner the removal, deletion, suppression, or reduction of
content containing protected free speech.” The officials appeal.
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II.
We review the district court’s standing determination de novo.
Freedom Path, Inc. v. Internal Revenue Serv., 913 F.3d 503, 507 (5th Cir. 2019).
“We review a preliminary injunction for abuse of discretion, reviewing
findings of fact for clear error and conclusions of law de novo. Whether an
injunction fulfills the mandates of Fed. R. Civ. P. 65(d) is a question of law
we review de novo.” Louisiana v. Biden, 45 F.4th 841, 845 (5th Cir. 2022)
(internal quotation marks and citation omitted).
III.
We begin with standing. To establish Article III standing, the Plaintiffs
bear the burden to show “[1] an injury in fact [2] that is fairly traceable to the
challenged action of the defendant and [3] likely to be redressed by [their]
requested relief.” Stringer v. Whitley, 942 F.3d 715, 720 (5th Cir. 2019) (citing
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). Because the Plaintiffs
seek injunctive relief, the injury-in-fact and redressability requirements
“intersect[]” and therefore the Plaintiffs must “demonstrat[e] a continuing
injury or threatened future injury,” not a past one. Id. “At the preliminary
injunction stage, the movant must clearly show only that each element of
standing is likely to obtain in the case at hand.” Speech First, Inc. v. Fenves,
979 F.3d 319, 330 (5th Cir. 2020) (citations omitted). The presence of any
one plaintiff with standing to pursue injunctive relief as to the Plaintiffs’ First-
Amendment claim satisfies Article III’s case-or-controversy requirement.
Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 52 n.2 (2006).
A.
An injury-in-fact is “‘an invasion of a legally protected interest’ that
is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting
Lujan, 504 U.S. at 560). “For a threatened future injury to satisfy the
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imminence requirement, there must be at least a ‘substantial risk’ that the
injury will occur.” Crawford v. Hinds Cnty. Bd. of Supervisors, 1 F.4th 371, 375
(5th Cir. 2021) (quoting Stringer, 942 F.3d at 721). Past harm can constitute
an injury-in-fact for purposes of pursuing injunctive relief if it causes
“continuing, present adverse effects.” City of Los Angeles v. Lyons, 461 U.S.
95, 102 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974)).
Otherwise, “‘[p]ast wrongs are evidence’ of the likelihood of a future injury
but ‘do not in themselves amount to that real and immediate threat of injury
necessary to make out a case or controversy.’” Crawford, 1 F.4th at 375
(quoting Lyons, 461 U.S. at 102–03) (alteration adopted).
Each of the Individual Plaintiffs has shown past injury-in-fact.
Bhattacharya’s and Kulldorff’s sworn declarations allege that their article,
the Great Barrington Declaration, which was critical of the government’s
COVID-related policies such as lockdowns, was “deboosted” in Google
search results and removed from Facebook and Reddit, and that their
roundtable discussion with Florida Governor Ron DeSantis concerning mask
requirements in schools was removed from YouTube. Kulldorff also claimed
censorship of his personal Twitter and LinkedIn accounts due to his opinions
concerning vaccine and mask mandates; both accounts were suspended
(although ultimately restored). Kheriaty, in his sworn declaration, attested to
the fact that his Twitter following was “artificially suppressed” and his posts
“shadow bann[ed]” so that they did not appear in his followers’ feeds due to
his views on vaccine mandates and lockdowns, and that a video of one of his
interviews concerning vaccine mandates was removed from YouTube (but
ultimately re-posted). Hoft—founder, owner, and operator of news website
The Gateway Pundit—submitted a sworn declaration averring that The
Gateway Pundit’s Twitter account was suspended and then banned for its
tweets about vaccine mandates and election fraud, its Facebook posts
concerning COVID-19 and election security were either banned or flagged as
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false or misinformation, and a YouTube video concerning voter fraud was
removed. Hoft’s declaration included photographic proof of the Twitter and
Facebook censorship he had suffered. And Hines’s declaration swears that
her personal Facebook account was suspended and the Facebook posts of her
organization, Health Freedom Louisiana, were censored and removed for
their views on vaccine and mask mandates.
The officials do not contest that these past injuries occurred. Instead,
they argue that the Individual Plaintiffs have failed to demonstrate that the
harm from these past injuries is ongoing or that similar injury is likely to
reoccur in the future, as required for standing to pursue injunctive relief. We
disagree with both assertions.
All five Individual Plaintiffs have stated in sworn declarations that
their prior censorship has caused them to self-censor and carefully word
social-media posts moving forward in hopes of avoiding suspensions, bans,
and censorship in the future. Kulldorff, for example, explained that he now
“restrict[s] what [he] say[s] on social-media platforms to avoid suspension
and other penalties.” Kheriaty described how he now must be “extremely
careful when posting any information on Twitter related to the vaccines, to
avoid getting banned” and that he intentionally “limit[s] what [he] say[s]
publicly,” even “on topics where [he] ha[s] specific scientific and ethical
expertise and professional experience.” And Hoft notes that, “[t]o avoid
suspension and other forms of censorship, [his website] frequently avoid[s]
posting content that [it] would otherwise post on social-media platforms, and
[] frequently alter[s] content to make it less likely to trigger censorship
policies.” These lingering effects of past censorship must be factored into the
standing calculus. See Lyons, 461 U.S. at 102.
As the Supreme Court has recognized, this chilling of the Individual
Plaintiffs’ exercise of their First Amendment rights is, itself, a
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constitutionally sufficient injury. See Laird v. Tatum, 408 U.S. 1, 11 (1972).
True, “to confer standing, allegations of chilled speech or self-censorship
must arise from a fear of [future harm] that is not imaginary or wholly
speculative.” Zimmerman v. City of Austin, Tex., 881 F.3d 378, 390 (5th Cir.
2018) (internal quotation marks and citation omitted); see also Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 416 (2013) (Plaintiffs “cannot manufacture
standing merely by inflicting harm on themselves based on their fears of
hypothetical future harm”). But the fears motivating the Individual
Plaintiffs’ self-censorship, here, are far from hypothetical. Rather, they are
grounded in the very real censorship injuries they have previously suffered to
their speech on social media, which are “evidence of the likelihood of a future
injury.” Crawford, 1 F.4th at 375 (internal quotation marks and citation
omitted). Supported by this evidence, the Individual Plaintiffs’ self-
censorship is a cognizable, ongoing harm resulting from their past censorship
injuries, and therefore constitutes injury-in-fact upon which those Plaintiffs
may pursue injunctive relief. Lyons, 461 U.S. at 102.
Separate from their ongoing harms, the Individual Plaintiffs have
shown a substantial risk that the injuries they suffered in the past will reoccur.
The officials suggest that there is no threat of future injury because “Twitter
has stopped enforcing its COVID-related misinformation policy.” But this
does nothing to mitigate the risk of future harm to the Individual Plaintiffs.
Twitter continues to enforce a robust general misinformation policy, and the
Individual Plaintiffs seek to express views—and have been censored for their
views—on topics well beyond COVID-19, including allegations of election
fraud and the Hunter Biden laptop story. 3 Plaintiffs use social-media
_____________________
3
Notably, Twitter maintains a separate “crisis misinformation policy” which
applies to “public health emergencies.” Crisis misinformation policy, TWITTER (August
2022), https://help.twitter.com/en/rules-and-policies/crisis-misinformation. This policy
would presumably apply to COVID-related misinformation if COVID-19 were again
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platforms other than Twitter—such as Facebook and YouTube—which still
enforce COVID- or health-specific misinformation policies. 4 And most
fundamentally, the Individual Plaintiffs are not seeking to enjoin Twitter’s
content moderation policies (or those of any other social-media platform, for
that matter). Rather, as Plaintiffs’ counsel made clear at oral argument, what
the Individual Plaintiffs are challenging is the government’s interference with
those social-media companies’ independent application of their policies. And
there is no evidence to suggest that the government’s meddling has ceased.
To the contrary, the officials’ attorney conceded at oral argument that they
continue to be in regular contact with social-media platforms concerning
content-moderation issues today.
The officials also contend that future harm is unlikely because “all
three plaintiffs who suggested that their social-media accounts had been
permanently suspended in the past now appear to have active accounts.” But
as the Ninth Circuit recently recognized, this fact weighs in Plaintiffs’ favor.
In O’Handley v. Weber, considering this issue in the context of redressability,5
the Ninth Circuit explained:
_____________________
classified as a Public Health Emergency, as it was until May 11, 2023. See End of the Federal
COVID-19 Public Health Emergency (PHE) Declaration, CTRS. FOR DISEASE CONTROL &
PREVENTION (May 5, 2023), https://www.cdc.gov/coronavirus/2019-ncov/your-
health/end-of-phe.html.
4
Facebook Community Standards: Misinformation, META, https://transparency.fb.
com/policies/community-standards/misinformation/ (last visited August 11, 2023);
Misinformation policies, YOUTUBE, https://support.google.com/youtube/topic/10833358
(last visited August 11, 2023).
5
When plaintiffs seek injunctive relief, the injury-in-fact and redressability
requirements intersect. Stringer, 942 F.3d at 720. So, it makes no difference that the Ninth
Circuit addressed the issue of reinstated social-media accounts in its redressability analysis
while we address it as part of injury-in-fact. The ultimate question is whether there was a
sufficient threat of future injury to warrant injunctive relief.
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Until recently, it was doubtful whether [injunctive] relief
would remedy [the plaintiff]’s alleged injuries because Twitter
had permanently suspended his account, and the requested
injunction [against government-imposed social-media
censorship] would not change that fact. Those doubts
disappeared in December 2022 when Twitter restored his
account.
62 F.4th 1145, 1162 (9th Cir. 2023). The same logic applies here. If the
Individual Plaintiffs did not currently have active social-media accounts, then
there would be no risk of future government-coerced censorship of their
speech on those accounts. But since the Individual Plaintiffs continue to be
active speakers on social media, they continue to face the very real and
imminent threat of government-coerced social-media censorship.
Because the Individual Plaintiffs have demonstrated ongoing harm
from their past censorship as well as a substantial risk of future harm, they
have established an injury-in-fact sufficient to support their request for
injunctive relief.
B.
Turning to the second element of Article III standing, the Individual
Plaintiffs were also required to show that their injuries were “fairly
traceable” to the challenged conduct of the officials. Stringer, 942 F.3d at
720. When, as is alleged here, the “causal relation between [the claimed]
injury and [the] challenged action depends upon the decision of an
independent third party . . . standing is not precluded, but it is ordinarily
substantially more difficult to establish.” California v. Texas, 141 S. Ct. 2104,
2117 (2021) (internal quotation marks and citation omitted). “To satisfy that
burden, the plaintiff[s] must show at the least ‘that third parties will likely
react in predictable ways.’” Id. (quoting Dep’t of Com. v. New York, 139 S. Ct.
2551, 2566 (2019)).
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The officials contend that traceability is lacking because the Individual
Plaintiffs’ censorship was a result of “independent decisions of social-media
companies.” This conclusion, they say, is a matter of timing: social-media
platforms implemented content-moderation policies in early 2020 and
therefore the Biden Administration—which took office in January 2021—
“could not be responsible for [any resulting] content moderation.” But as we
just explained, the Individual Plaintiffs do not challenge the social-media
platforms’ content-moderation policies. So, the fact that the Individual
Plaintiffs’ censorship can be traced back, at least in part, to third-party
policies that pre-date the current presidential administration is irrelevant.
The dispositive question is whether the Individual Plaintiffs’ censorship can
also be traced to government-coerced enforcement of those policies. We agree
with the district court that it can be.
On this issue, Department of Commerce is instructive. There, a group
of plaintiffs brought a constitutional challenge against the federal
government’s decision to reinstate a citizenship question on the 2020 census.
139 S. Ct. at 2561. Their theory of harm was that, as a result of this added
question, noncitizen households would respond to the census at lower rates
than citizen households due to fear of immigration-related consequences,
which would, in turn, lead to undercounting of population in certain states
and a concomitant diminishment in political representation and loss of
federal funds. Id. at 2565–66. In response, the government presented many
of the same causation arguments raised here, contending that any harm to the
plaintiffs was “not fairly traceable to the [government]’s decision” but rather
“depend[ed] on the independent action of third parties” (there, noncitizens
refusing to respond to the census; here, social-media companies censoring
posts) which “would be motivated by unfounded fears that the Federal
Government will itself break the law” (there, “using noncitizens’ answers
against them for law enforcement purposes”; here, retaliatory enforcement
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actions or regulatory reform). Id. But a unanimous Supreme Court disagreed.
As the Court explained, the plaintiffs had “met their burden of showing that
third parties will likely react in predictable ways to the citizenship question”
because evidence “established that noncitizen households have historically
responded to the census at lower rates than other groups” and the district
court had “not clearly err[ed] in crediting the . . . theory that the discrepancy
[was] likely attributable at least in part to noncitizens’ reluctance to answer a
citizenship question.” Id. at 2566.
That logic is directly applicable here. The Individual Plaintiffs
adduced extensive evidence that social-media platforms have engaged in
censorship of certain viewpoints on key issues and that the government has
engaged in a years-long pressure campaign designed to ensure that the
censorship aligned with the government’s preferred viewpoints. The district
court did not clearly err in crediting the Individual Plaintiffs’ theory that the
social-media platforms’ censorship decisions were likely attributable at least
in part to the platforms’ reluctance to risk the adverse legal or regulatory
consequences that could result from a refusal to adhere to the government’s
directives. The Individual Plaintiffs therefore met their burden of showing
that the social-media platforms will likely react in a predictable way—i.e.,
censoring speech—in response to the government’s actions.
To be sure, there were instances where the social-media platforms
declined to remove content that the officials had identified for censorship. But
predictability does not require certainty, only likelihood. See Dep’t of Com.,
139 S. Ct. at 2566 (requiring that third parties “will likely react in predictable
ways”). Here, the Individual Plaintiffs presented extensive evidence of
escalating threats—both public and private—by government officials aimed
at social-media companies concerning their content-moderation decisions.
The district court thus had a sound basis upon which to find a likelihood that,
faced with unrelenting pressure from the most powerful office in the world,
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social-media platforms did, and would continue to, bend to the government’s
will. This determination was not, as the officials contend, based on
“unadorned speculation.” Rather, it was a logical conclusion based directly
on the evidence adduced during preliminary discovery.
C.
The final element of Article III standing—redressability—required
the Individual Plaintiffs to demonstrate that it was “likely, as opposed to
merely speculative, that the [alleged] injury will be redressed by a favorable
decision.” Lujan, 504 U.S. at 561 (internal quotation marks and citation
omitted). The redressability analysis focuses on “the relationship between
the judicial relief requested and the injury” alleged. California, 141 S. Ct. at
2115 (internal quotation marks and citation omitted).
Beginning first with the injury alleged, we have noted multiple times
now an important distinction between censorship as a result of social-media
platforms’ independent application of their content-moderation policies, on
the one hand, and censorship as a result of social-media platforms’
government-coerced application of those policies, on the other. As Plaintiffs’
counsel made clear at oral argument, the Individual Plaintiffs seek to redress
the latter injury, not the former.
The Individual Plaintiffs have not sought to invalidate social-media
companies’ censorship policies. Rather, they asked the district court to
restrain the officials from unlawfully interfering with the social-media
companies’ independent application of their content-moderation policies. As
the Ninth Circuit has also recognized, there is a direct relationship between
this requested relief and the injury alleged such that redressability is satisfied.
See O’Handley, 62 F.4th at 1162.
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D.
We also conclude that the State Plaintiffs are likely to establish direct
standing. 6 First, state officials have suffered, and will likely continue to
suffer, direct censorship on social media. For example, the Louisiana
Department of Justice posted a video showing Louisiana citizens testifying at
the State Capitol and questioning the efficacy of COVID-19 vaccines and
mask mandates. But one platform removed the video for spreading alleged
“medical misinformation” and warned that any subsequent violations would
result in suspension of the state’s account. The state thereafter modified its
practices for posting on social media for fear of future censorship injury.
Similarly, another platform took down a Louisiana state legislator’s
post discussing COVID vaccines. And several videos posted by St. Louis
County showing residents discussing COVID policies were removed, too.
Acts of this nature continue to this day. In fact, at oral argument, counsel for
the State of Louisiana explained that YouTube recently removed a video of
counsel, speaking in his official capacity, criticizing the federal government’s
alleged unconstitutional censorship in this case. 7
These acts of censorship confer standing for substantially the same
reasons as those discussed for the Individual Plaintiffs. That is, they
constitute an ongoing injury, and demonstrate a likelihood of future injury,
traceable to the conduct of the federal officials and redressable by an
injunction against them.
_____________________
6
The State Plaintiffs also contend that they have parens patriae standing. We do
not consider this alternative argument.
7
These actions are not limited to the State Plaintiffs. On the contrary, other states’
officials have offered evidence of numerous other instances where their posts were
removed, restricted, or otherwise censored.
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The federal officials admit that these instances of censorship occurred
but deny that the State Plaintiffs have standing based on the assertion that
“the First Amendment does not confer rights on States.” But the Supreme
Court has made clear that the government (state and otherwise) has a
“right” to speak on its own behalf. Bd. of Regents of Univ. of Wis. Sys. v.
Southworth, 529 U.S. 217, 229 (2000); see also Walker v. Tex. Div., Sons of
Confederate Veterans, Inc., 576 U.S. 200, 207–08 (2015). Perhaps that right
derives from a state’s sovereign nature, rather than from the First
Amendment itself. But regardless of the source of the right, the State
Plaintiffs sustain a direct injury when the social-media accounts of state
officials are censored due to federal coercion.
Federally coerced censorship harms the State Plaintiffs’ ability to
listen to their citizens as well. This right to listen is “reciprocal” to the State
Plaintiffs’ right to speak and constitutes an independent basis for the State
Plaintiffs’ standing here. Va. State Bd. of Pharm. v. Va. Citizens Consumer
Council, 425 U.S. 748, 757 (1976).
Officials from the States of Missouri and Louisiana testified that they
regularly use social media to monitor their citizens’ concerns. As explained
by one Louisiana official:
[M]ask and vaccine mandates for students have been a very
important source of concern and public discussion by
Louisiana citizens over the last year. It is very important for me
to have access to free public discourse on social media on these
issues so I can understand what our constituents are actually
thinking, feeling, and expressing about such issues, and so I can
communicate properly with them.
And a Missouri official testified to several examples of critical speech on an
important topic that he was not able to review because it was censored:
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[O]ne parent who posted on nextdoor.com (a neighborhood
networking site operated by Facebook) an online petition to
encourage his school to remain mask-optional found that his
posts were quietly removed without notifying him, and his
online friends never saw them. Another parent in the same
school district who objected to mask mandates for
schoolchildren responded to Dr. Fauci on Twitter, and
promptly received a warning from Twitter that his account
would be banned if he did not delete the tweets criticizing Dr.
Fauci’s approach to mask mandates. These examples are just
the sort of online speech by Missourians that it is important for
me and the Missouri Attorney General’s Office to be aware of.
The Government does not dispute that the State Plaintiffs have a
crucial interest in listening to their citizens. Indeed, the CDC’s own witness
explained that if content were censored and removed from social-media
platforms, government communicators would not “have the full picture” of
what their citizens’ true concerns are. So, when the federal government
coerces or substantially encourages third parties to censor certain viewpoints,
it hampers the states’ right to hear their constituents and, in turn, reduces
their ability to respond to the concerns of their constituents. This injury, too,
means the states likely have standing. See Va. State Bd. of Pharm., 425 U.S. at
757.
* * *
The Plaintiffs have standing because they have demonstrated ongoing
harm from past social-media censorship and a likelihood of future censorship,
both of which are injuries traceable to government-coerced enforcement of
social-media platforms’ content-moderation policies and redressable by an
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injunction against the government officials. We therefore proceed to the
merits of Plaintiffs’ claim for injunctive relief. 8
IV.
A party seeking a preliminary injunction must establish that (1) they
are likely to succeed on the merits, (2) there is a “substantial threat” they
will suffer an “irreparable injury” otherwise, (3) the potential injury
“outweighs any harm that will result” to the other side, and (4) an injunction
will not “disserve the public interest.” Atchafalaya Basinkeeper v. U.S. Army
Corps of Eng’rs, 894 F.3d 692, 696 (5th Cir. 2018) (citing La Union Del Pueblo
Entero v. FEMA, 608 F.3d 217, 219 (5th Cir. 2010)). Of course, a
“preliminary injunction is an extraordinary remedy,” meaning it should not
be entered lightly. Id.We start with likelihood of success. The Plaintiffs allege that federal
officials ran afoul of the First Amendment by coercing and significantly
encouraging “social-media platforms to censor disfavored [speech],”
including by “threats of adverse government action” like antitrust
enforcement and legal reforms. We agree.
A.
The government cannot abridge free speech. U.S. Const.
amend. I. A private party, on the other hand, bears no such burden—it is
“not ordinarily constrained by the First Amendment.” Manhattan Cmty.
Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). That changes, though,
when a private party is coerced or significantly encouraged by the
_____________________
8
The Individual Plaintiffs’ standing and the State Plaintiffs’ standing provide
independent bases upon which the Plaintiffs’ injunctive-relief claim may proceed since
there need be only one plaintiff with standing to satisfy the requirements of Article III.
Rumsfeld, 547 U.S. at 52 n.2.
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government to such a degree that its “choice”—which if made by the
government would be unconstitutional, Norwood v. Harrison, 413 U.S. 455,
465 (1973)—“must in law be deemed to be that of the State.” Blum v.
Yaretsky, 457 U.S. 991, 1004 (1982); Barnes v. Lehman, 861 F.2d 1383, 1385–
36 (5th Cir. 1988). 9 This is known as the close nexus test. 10
Under that test, we “begin[] by identifying ‘the specific conduct of
which the plaintiff complains.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 51 (1999) (quoting Blum, 457 U.S. at 1004 (“Faithful adherence to the
‘state action’ requirement . . . requires careful attention to the gravamen of
the plaintiff’s complaint.”)). Then, we ask whether the government
sufficiently induced that act. Not just any coaxing will do, though. After all,
“the government can speak for itself,” which includes the right to “advocate
and defend its own policies.” Southworth, 529 U.S. at 229; see also Walker,
576 U.S. at 207. But, on one hand there is persuasion, and on the other there
is coercion and significant encouragement—two distinct means of satisfying
the close nexus test. See Louisiana Div. Sons of Confederate Veterans v. City of
Natchitoches, 821 F. App’x 317, 320 (5th Cir. 2020) (per curiam)
(“Responding agreeably to a request and being all but forced by the coercive
power of a governmental official are different categories of responses . . .”).
Where we draw that line, though, is the question before us today.
_____________________
9
That makes sense: First Amendment rights “are protected not only against
heavy-handed frontal attack, but also from being stifled by more subtle governmental
interference.” Bates v. City of Little Rock, 361 U.S. 516, 523 (1960).
10
Note that, at times, we have called this test by a few other names. See, e.g., Frazier
v. Bd. of Trustees of Nw. Miss. Reg’l Med. Ctr., 765 F.2d 1278, 1284 (5th Cir. 1985) (“the fair
attribution test”); Bass v. Parkwood Hosp., 180 F.3d 234, 242 (5th Cir. 1999) (“The state
compulsion (or coercion) test”). We settle that dispute now—it is the close nexus test. Am.
Mfrs., 526 U.S. at 52 (a “close nexus” is required). In addition, some of our past decisions
have confused this test with the joint action test, see Bass, 180 F.3d at 242, but the two are
separate tests with separate considerations.
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1.
We start with encouragement. To constitute “significant
encouragement,” there must be such a “close nexus” between the parties
that the government is practically “responsible” for the challenged decision.
Blum, 457 U.S. at 1004 (emphasis in original). What, then, is a close nexus?
We know that “the mere fact that a business is subject to state regulation” is
not sufficient. Id. (alteration adopted) (citation omitted); Halleck, 139 S. Ct.
at 1932 (“Put simply, being regulated by the State does not make one a state
actor.”). And, it is well established that the government’s “[m]ere approval
of or acquiescence in” a private party’s actions is not enough either. Blum,
457 U.S. at 1004–05. Instead, for encouragement, we find that the
government must exercise some active, meaningful control over the private
party’s decision.
Take Blum v. Yaretsky. There, the Supreme Court found there was no
state action because a decision to discharge a patient—even if it followed
from the “requir[ed] completion of a form” under New York law—was made
by private physicians, not the government. Id. at 1006–08. The plaintiff
argued that, by regulating and overseeing the facility, the government had
“affirmatively command[ed]” the decision. Id. at 1005. The Court was not
convinced—it emphasized that “physicians, [] not the forms, make the
decision” and they do so under “professional standards that are not
established by the State.” Id. Similarly, in Rendell-Baker v. Kohn the Court
found that a private school—which the government funded and placed
students at—was not engaged in state action because the conduct at issue,
namely the decision to fire someone, “[was] not . . . influenced by any state
regulation.” 457 U.S. 830, 841 (1982).
Compare that, though, to Roberts v. Louisiana Downs, Inc., 742 F.2d
221 (5th Cir. 1984). There, we held that a horseracing club’s action was
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attributable to the state because the Louisiana government—through legal
and informal supervision—was overly involved in the decision to deny a racer
a stall. Id. at 224. “Something more [was] present [] than simply extensive
regulation of an industry, or passive approval by a state regulatory entity of a
decision by a regulated business.” Id. at 228. Instead, the stalling decision
was made partly by the “racing secretary,” a legislatively created position
accompanied by expansive supervision from on-site state officials who had
the “power to override decisions” made by the club’s management. Id. So,
even though the secretary was plainly a “private employee” paid by the club,
the state’s extensive oversight—coupled with some level of authority on the
part of the state—meant that the club’s choice was not fully independent or
made wholly subject to its own policies. Id. at 227–28. So, this case is on the
opposite end of the state-involvement spectrum to Blum.
Per Blum and Roberts, then, significant encouragement requires
“[s]omething more” than uninvolved oversight from the government. Id. at
228. After all, there must be a “close nexus” that renders the government
practically “responsible” for the decision. Blum, 457 U.S. at 1004. Taking that
in context, we find that the clear throughline for encouragement in our
caselaw is that there must be some exercise of active (not passive), meaningful
(impactful enough to render them responsible) control on the part of the
government over the private party’s challenged decision. Whether that is (1)
entanglement in a party’s independent decision-making or (2) direct
involvement in carrying out the decision itself, the government must
encourage the decision to such a degree that we can fairly say it was the
state’s choice, not the private actor’s. See id.; Roberts, 742 F.2d at 224;
Rendell-Baker, 457 U.S. at 841 (close nexus test is met if action is “compelled
or [] influenced” by the state (emphasis added)); Frazier, 765 F.2d at 1286
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(significant encouragement is met when “the state has had some affirmative
role, albeit one of encouragement short of compulsion,” in the decision). 11
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11
This differs from the “joint action” test that we have considered in other cases.
Under that doctrine, a private party may be considered a state actor when it “operates as a
‘willful participant in joint activity with the State or its agents.’” Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296 (2001) (quoting Lugar v. Edmonson Oil Co.,
457 U.S. 922, 941 (1982)). The difference between the two lies primarily in the degree of
the state’s involvement.
Under the joint action test, the level of integration is very high—there must be
“pervasive entwinement” between the parties. Id. at 298. That is integration to such a
degree that “will support a conclusion that an ostensibly private organization ought to be
charged with a public character.” Id. at 302 (emphasis added) (finding state action by athletic
association when public officials served on the association’s board, public institutions
provided most of the association’s funding, and the association’s employees received
public benefits); see also Rendell-Baker, 457 U.S. at 842 (requiring a “symbiotic
relationship”); Frazier, 765 F.2d at 1288 & n.22 (explaining that although the joint action
test involves the government playing a “meaningful role” in the private actor’s decision,
that role must be part of a “functionally symbiotic” relationship that is so extensive that
“any act of the private entity will be fairly attributable to the state even if it cannot be shown
that the government played a direct role in the particular action challenged.” (emphases
added)).
Under the close nexus test, however, the government is not deeply intertwined
with the private actor as a whole. Instead, the state is involved in only one facet of the
private actor’s operations—its decision-making process regarding the challenged conduct.
Roberts, 742 F.2d at 224; Howard Gault, 848 F.2d at 555. That is a much narrower level of
integration. See Roberts, 742 F.2d at 228 (“We do not today hold that the state and
Louisiana Downs are in such a relationship that all acts of the track constitute state action,
nor that all acts of the racing secretary constitute state action,” but instead that “[i]n the
area of stalling, . . . state regulation and involvement is so specific and so pervasive that
[such] decisions may be considered to bear the imprimatur of the state.”). Consequently,
the showings required by a plaintiff differ. Under the joint action test, the plaintiff must
prove substantial integration between the two entities in toto. For the close nexus test, the
plaintiff instead must only show significant involvement from the state in the particular
challenged action.
Still, there is admittedly some overlap between the tests. See Brentwood, 531 U.S. at
303 (“‘Coercion’ and ‘encouragement’ are like ‘entwinement’ in referring to kinds of facts
that can justify characterizing an ostensibly private action as public instead. Facts that
address any of these criteria are significant, but no one criterion must necessarily be
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Take Howard Gault Co. v. Texas Rural Legal Aid, Inc., 848 F.2d 544(5th Cir. 1988). There, a group of onion growers—by way of state picketing
laws and local officials—shut down a workers’ strike. Id. at 548–49. We
concluded that the growers’ “activity”—axing the strike—“while not
compelled by the state, was so significantly encouraged, both overtly and
covertly, that the choice must in law be deemed to be that of the state.” Id.
at 555 (alterations adopted) (citation and quotation marks omitted)
(emphasis added). 12 Specifically, “[i]t was the heavy participation of state
and state officials,” including local prosecutors and police officers, “that
[brought] [the conduct] under color of state law.” Id. In other words, the
officials were directly involved in carrying out the challenged decision. That
satisfied the requirement that, to encourage a decision, the government must
exert some meaningful, active control over the private party’s decision.
Our reading of what encouragement means under the close nexus test
tracks with other federal courts, too. For example, the Ninth Circuit reads
the close nexus test to be satisfied when, through encouragement, the
government “overwhelm[s] the private party[’s]” choice in the matter,
forcing it to “act in a certain way.” O’Handley, 62 F.4th at 1158; Rawson v.
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applied. When, therefore, the relevant facts show pervasive entwinement to the point of
largely overlapping identity, the implication of state action is not affected by pointing out
that the facts might not loom large under a different test.”). But, that is to be expected—
these tests are not “mechanical[ly]” applied. Roberts, 742 F.2d at 224.
12
We note that although state-action caselaw seems to deal most often with § 1983
(i.e., the under-color-of-law prong) and the Fourteenth Amendment, there is no clear
directive from the Supreme Court that any variation in the law or government at issue
changes the state-action analysis. See Blum, 457 U.S. at 1004. In fact, we have expressly
rejected such ideas. See Miller v. Hartwood Apartments, Ltd., 689 F.2d 1239, 1243 (5th Cir.
1982) (“Although the Blum decision turned on § 1983, we find the determination of federal
action to rest on the same general principles as determinations of state action.”); Barnes,
861 F.2d at 1385 (“The analysis of state action under the Fourteenth Amendment and the
analysis of action under color of state law may coincide for purposes of § 1983.”).
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Recovery Innovations, Inc., 975 F.3d 742, 751 (9th Cir. 2020) (“A finding that
individual state actors or other state requirements literally ‘overrode’ a
nominally private defendant’s independent judgment might very well
provide relevant information.”). That analysis, much like meaningful
control, asks whether a decision “was the result of [a party’s] own
independent judgment.” O’Handley, 62 F.4th at 1159.
2.
Next, we take coercion—a separate and distinct means of satisfying
the close nexus test. Generally speaking, if the government compels the
private party’s decision, the result will be considered a state action. Blum,
457 U.S. at 1004. So, what is coercion? We know that simply “being
regulated by the State does not make one a state actor.” Halleck, 139 S. Ct. at
1932. Coercion, too, must be something more. But, distinguishing coercion
from persuasion is a more nuanced task than doing the same for
encouragement. Encouragement is evidenced by an exercise of active,
meaningful control, whether by entanglement in the party’s decision-making
process or direct involvement in carrying out the decision itself. Therefore,
it may be more noticeable and, consequently, more distinguishable from
persuasion. Coercion, on the other hand, may be more subtle. After all, the
state may advocate—even forcefully—on behalf of its positions. Southworth,
529 U.S. at 229.
Consider a Second Circuit case, National Rifle Ass’n v. Vullo, 49 F.4th
700 (2d Cir. 2022). There, a New York state official “urged” insurers and
banks via strongly worded letters to drop the NRA as a client. Id. at 706. In
those letters, the official alluded to reputational harms that the companies
would suffer if they continued to support a group that has allegedly caused or
encouraged “devastation” and “tragedies” across the country. Id. at 709.
Also, the official personally told a few of the companies in a closed-door
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meeting that she “was less interested in pursuing the [insurers’ regulatory]
infractions . . . so long as [they] ceased” working with the NRA. Id. at 718.
Ultimately, the Second Circuit found that both the letters and the statement
did not amount to coercion, but instead “permissible government speech.”
Id. at 717, 719. In reaching that decision, the court emphasized that
“[a]lthough she did have regulatory authority over the target audience,” the
official’s letters were written in a “nonthreatening tone” and used
persuasive, non-intimidating language. Id. at 717. Relatedly, while she
referenced “adverse consequences” if the companies did not comply, they
were only “reputational risks”—there was no intimation that “punishment
or adverse regulatory action would follow the failure to accede to the
request.” Id. (alterations adopted). As for the “so long as” statement, the
Second Circuit found that—when viewed in “context”—the official was
merely “negotiating[] and resolving [legal] violations,” a legitimate power of
her office. 13 Id. at 718–19. Because she was only “carrying out her regulatory
responsibilities” and “engaging in legitimate enforcement action,” the
official’s references to infractions were not coercive. Id. Thus, the Second
Circuit found that seemingly threatening language was actually permissible
government advocacy.
That is not to say that coercion is always difficult to identify.
Sometimes, coercion is obvious. Take Bantam Books, Inc. v. Sullivan, 372
U.S. 58 (1963). There, the Rhode Island Commission to Encourage
Morality—a state-created entity—sought to stop the distribution of obscene
books to kids. Id. at 59. So, it sent a letter to a book distributor with a list of
_____________________
13
Apparently, the companies had previously issued “illegal insurance policies—
programs created and endorsed by the NRA”—that covered litigation defense costs
resulting from any firearm-related injury or death, in violation of New York law. Vullo, 49
F.4th at 718. The court reasoned that the official had the power to bring those issues to a
close.
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verboten books and requested that they be taken off the shelves. Id. at 61–64.
That request conveniently noted that compliance would “eliminate the
necessity of our recommending prosecution to the Attorney General’s
department.” Id. at 62 n.5. Per the Commission’s request, police officers
followed up to make sure the books were removed. Id. at 68. The Court
concluded that this “system of informal censorship,” which was “clearly
[meant] to intimidate” the recipients through “threat of [] legal sanctions
and other means of coercion” rendered the distributors’ decision to remove
the books a state action. Id. at 64, 67, 71–72. Given Bantam Books, not-so
subtle asks accompanied by a “system” of pressure (e.g., threats and follow-
ups) are clearly coercive.
Still, it is rare that coercion is so black and white. More often, the facts
are complex and sprawling as was the case in Vullo. That means it can be quite
difficult to parse out coercion from persuasion. We, of course, are not the
first to recognize this. In that vein, the Second Circuit has crafted a four-
factor test that distills the considerations of Bantam Books into a workable
standard. We, lacking such a device, adopt the Second Circuit’s approach as
a helpful, non-exclusive tool for completing the task before us, namely
identifying when the state’s messages cross into impermissible coercion.
The Second Circuit starts with the premise that a government
message is coercive—as opposed to persuasive—if it “can reasonably be
interpreted as intimating that some form of punishment or adverse regulatory
action will follow the failure to accede to the official’s request.” Vullo, 49
F.4th at 715 (quotation marks and citation omitted). To distinguish such
“attempts to coerce” from “attempts to convince,” courts look to four
factors, namely (1) the speaker’s “word choice and tone”; (2) “whether the
speech was perceived as a threat”; (3) “the existence of regulatory
authority”; and, “perhaps most importantly, (4) whether the speech refers
to adverse consequences.” Id. (citations omitted). Still, “[n]o one factor is
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dispositive.” Id. (citing Bantam Books, 372 U.S. at 67). For example, the
Second Circuit found in Vullo that the state officials’ communications were
not coercive because, in part, they were not phrased in an intimidating
manner and only referenced reputational harms—an otherwise acceptable
consequence for a governmental actor to threaten. Id. at 717, 719.
The Ninth Circuit has also adopted the four-factor approach and, in
doing so, has cogently spelled out the nuances of each factor. Consider
Kennedy v. Warren, 66 F.4th 1199 (9th Cir. 2023). There, Senator Elizabeth
Warren penned a letter to Amazon asking it to stop selling a “false or
misleading” book on COVID. Id. at 1204. The senator stressed that, by
selling the book, Amazon was “providing consumers with false and
misleading information” and, in doing so, was pursuing what she described
as “an unethical, unacceptable, and potentially unlawful course of action.”
Id. So, she asked it to do better, including by providing a “public report” on
the effects of its related sales algorithms and a “plan to modify these
algorithms so that they no longer” push products peddling “COVID-19
misinformation.” Id. at 1205. The authors sued, but the Ninth Circuit found
no state action.
The court, lamenting that it can “be difficult to distinguish” between
persuasion and coercion, turned to the Second Circuit’s “useful non-
exclusive” four-factor test. Id. at 1207. First, the court reasoned that the
senator’s letter, although made up of “strong rhetoric,” was framed merely
as a “request rather than a command.” Id. at 1208. Considering both the text
and the “tenor” of the parties’ relationship, the court concluded that the
letter was not unrelenting, nor did it “suggest[] that compliance was the only
realistic option.” Id. at 1208–09.
Second, and relatedly, even if she had said as much, the senator lacked
regulatory authority—she “ha[d] no unilateral power to penalize Amazon.”
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Id. at 1210. Still, the sum of the second prong is more than just power. Given
that the overarching purpose of the four-factor test is to ask if the speaker’s
message can “reasonably be construed” as a “threat of adverse
consequences,” the lack of power is “certainly relevant.” Id. at 1209–10.
After all, the “absence of authority influences how a reasonable person would
read” an official’s message. Id. at 1210; see also Hammerhead Enters., Inc. v.
Brezenoff, 707 F.2d 33, 39 (2d Cir. 1983) (finding no government coercion
where city official lacked “the power to impose sanctions on merchants who
did not respond to [his] requests”) (citing Bantam Books, 372 U.S. at 71). For
example, in Warren, it would have been “unreasonable” to believe, given
Senator Warren’s position “as a single Senator” who was “removed from
the relevant levers of power,” that she could exercise any authority over
Amazon. 66 F.4th at 1210.
Still, the “lack of direct authority” is not entirely dispositive. Id.
Because—per the Second and Ninth Circuits—the key question is whether
a message can “reasonably be construed as coercive,” id. at 1209, 14 a
speaker’s power over the recipient need not be clearly defined or readily
apparent, so long as it can be reasonably said that there is some tangible power
lurking in the background. See Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir.
2003) (finding a private party “could reasonably have believed” it would face
_____________________
14
According to the Ninth Circuit, that tracks with its precedent. “[I]n Carlin
Communications, Inc. v. Mountain States Telephone & Telegraph Co., 827 F.2d 1291 (9th Cir.
1987), [they] held that a deputy county attorney violated the First Amendment by
threatening to prosecute a telephone company if it continued to carry a salacious dial-a-
message service.” Warren, 66 F.4th at 1207. But, “in American Family Association, Inc. v.
City & County of San Francisco, 277 F.3d 1114 (9th Cir. 2002), [they] held that San Francisco
officials did not violate the First Amendment when they criticized religious groups’ anti-
gay advertisements and urged television stations not to broadcast the ads.” Id. The rub, per
the court, was that “public officials may criticize practices that they would have no
constitutional ability to regulate, so long as there is no actual or threatened imposition of
government power or sanction.” Id.38
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retaliation if it ignored a borough president’s request because “[e]ven though
[he] lacked direct regulatory control,” there was an “implicit threat” that he
would “use whatever authority he does have . . . to interfere” with the
party’s cashflow). That, of course, was not present in Warren. So, the second
prong was easily resolved against state action.
Third, the senator’s letter “contain[ed] no explicit reference” to
“adverse consequences.” 15 66 F.4th at 1211. And, beyond that, no “threat
[was] clear from the context.” Id. To be sure, an “official does not need to
say ‘or else,’” but there must be some message—even if “unspoken”—that
can be reasonably construed as intimating a threat. Id. at 1211–12. There,
when read “holistically,” the senator only implied that Amazon was
“morally complicit” in bad behavior, nothing more. Id. at 1212.
Fourth, there was no indication that Amazon perceived the message
as a threat. There was “no evidence” it “changed its algorithms”—“let
alone that it felt compelled to do so”—as a result of the senator’s urgings. Id.
at 1211. Admittedly, it is not required that the recipient “bow[] to
government pressure,” but courts are more likely to find coercion if there is
“some indication” that the message was “understood” as a threat, such as
evidence of actual change. Id. at 1210–11. In Warren, it was apparent (and
there was no sense to the contrary) that the minor policy change the company
did make stemmed from reputational concerns, not “fears of liability in a
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15
The Ninth Circuit emphasized that officials may advocate for positions,
including by “[g]enerating public pressure to motivate others to change their behavior.”
Warren, 66 F.4th at 1208. In that vein, it dismissed any references to “potential legal
liability” because those statements do not necessarily “morph an effort to persuade into an
attempt to coerce.” Id. at 1209 (citing VDARE Found. v. City of Colo. Springs, 11 F.4th 1151,
1165 (10th Cir. 2021)). Instead, there must be “clear allegation[s] of legal violations or
threat[s] of specific enforcement actions.” Id.39
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court of law.” Id. at 1211. Considering the above, the court found that the
senator’s message amounted to an attempt at persuasion, not coercion.
3.
To sum up, under the close nexus test, a private party’s conduct may
be state action if the government coerced or significantly encouraged it. Blum,
457 U.S. at 1004. Although this test is not mechanical, see Roberts, 742 F.2d
at 224 (noting that state action is “essentially [a] factual determination”
made by “sifting facts and weighing circumstances case by case to determine
if there is a sufficient nexus between the state and the particular aspect of the
private individual’s conduct which is complained of” (citation and quotation
marks omitted)), there are clear, although not exclusive, ways to satisfy either
prong.
For encouragement, we read the law to require that a governmental
actor exercise active, meaningful control over the private party’s decision in
order to constitute a state action. That reveals itself in (1) entanglement in a
party’s independent decision-making or (2) direct involvement in carrying
out the decision itself. Compare Roberts, 742 F.2d at 224 (state had such
“continuous and intimate involvement” and supervision over horseracing
decision that, when coupled with its authority over the actor, it was
considered a state action) and Howard Gault, 848 F.2d at 555 (state eagerly,
and effectively, assisted a private party in shutting down a protest), with
Blum, 457 U.S. at 1008 (state did not sufficiently influence the decision as it
was made subject to independent standards). In any of those scenarios, the
state has such a “close nexus” with the private party that the government
actor is practically “responsible” for the decision, Blum, 457 U.S. at 1004,
because it has necessarily encouraged the private party to act and, in turn,
commandeered its independent judgment, O’Handley, 62 F.4th at 1158–59.
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For coercion, we ask if the government compelled the decision by,
through threats or otherwise, intimating that some form of punishment will
follow a failure to comply. Vullo, 49 F.4th at 715. Sometimes, that is obvious
from the facts. See, e.g., Bantam Books, 372 U.S. at 62–63 (a mafiosi-style
threat of referral to the Attorney General accompanied with persistent
pressure and follow-ups). But, more often, it is not. So, to help distinguish
permissible persuasion from impermissible coercion, we turn to the Second
(and Ninth) Circuit’s four-factor test. Again, honing in on whether the
government “intimat[ed] that some form of punishment” will follow a
“failure to accede,” we parse the speaker’s messages to assess the (1) word
choice and tone, including the overall “tenor” of the parties’ relationship;
(2) the recipient’s perception; (3) the presence of authority, which includes
whether it is reasonable to fear retaliation; and (4) whether the speaker refers
to adverse consequences. Vullo, 49 F.4th at 715; see also Warren, 66 F.4th at
1207.
Each factor, though, has important considerations to keep in mind.
For word choice and tone, “[a]n interaction will tend to be more threatening
if the official refuses to take ‘no’ for an answer and pesters the recipient until
it succumbs.” Warren, 66 F.4th at 1209 (citing Bantam Books, 372 U.S. at 62–
63). That is so because we consider the overall “tenor” of the parties’
relationship. Id. For authority, there is coercion even if the speaker lacks
present ability to act so long as it can “reasonably be construed” as a threat
worth heeding. Compare id. at 1210 (single senator had no worthwhile power
over recipient, practical or otherwise), with Okwedy, 333 F.3d at 344(although local official lacked direct power over the recipient, company
“could reasonably have believed” from the letter that there was “an implicit
threat” and that he “would use whatever authority he does have” against it).
As for perception, it is not necessary that the recipient “admit that it
bowed to government pressure,” nor is it even “necessary for the recipient
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to have complied with the official’s request”—“a credible threat may violate
the First Amendment even if ‘the victim ignores it, and the threatener folds
his tent.’” Warren, 66 F.4th at 1210 (quoting Backpage.com, LLC v. Dart, 807
F.3d 229, 231 (7th Cir. 2015)). Still, a message is more likely to be coercive if
there is some indication that the party’s decision resulted from the threat. Id.at 1210–11. Finally, as for adverse consequences, the government need not
speak its threat aloud if, given the circumstances, it is fair to say that the
message intimates some form of punishment. Id. at 1209. If these factors
weigh in favor of finding the government’s message coercive, the coercion
test is met, and the private party’s resulting decision is a state action.
B.
With that in mind, we turn to the case at hand. We start with “the
specific conduct of which the plaintiff complains.” Am. Mfrs., 526 U.S. at 51.
Here, that is “censor[ing] disfavored speakers and viewpoints” on social
media. The Plaintiffs allege that the “Defendants [] coerced, threatened, and
pressured social-media platforms”—via “threats of adverse government
action” like increased regulation, antitrust enforcement, and changes to
Section 230—to make those censorship decisions. That campaign, per the
Plaintiffs, was multi-faceted—the officials “publicly threaten[ed] [the]
companies” while they privately piled on “unrelenting pressure” via
“demands for greater censorship.” And they succeeded—the platforms
censored disfavored content.
The officials do not deny that they worked alongside the platforms.
Instead, they argue that their conduct—asking or trying to persuade the
platforms to act—was permissible government speech. So, we are left with
the task of sifting out any coercion and significant encouragement from their
attempts at persuasion. Here, there were multiple speakers and messages.
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Taking that in context, we apply the law to one set of officials at a time,
starting with the White House and Office of the Surgeon General.
1.
We find that the White House, acting in concert with the Surgeon
General’s office, likely (1) coerced the platforms to make their moderation
decisions by way of intimidating messages and threats of adverse
consequences, and (2) significantly encouraged the platforms’ decisions by
commandeering their decision-making processes, both in violation of the
First Amendment.
Generally speaking, officials from the White House and the Surgeon
General’s office had extensive, organized communications with platforms.
They met regularly, traded information and reports, and worked together on
a wide range of efforts. That working relationship was, at times, sweeping.
Still, those facts alone likely are not problematic from a First-Amendment
perspective. But, the relationship between the officials and the platforms
went beyond that. In their communications with the platforms, the officials
went beyond advocating for policies, Southworth, 529 U.S. at 229, or making
no-strings-attached requests to moderate content, Warren, 66 F.4th at 1209.
Their interaction was “something more.” Roberts, 742 F.2d at 228.
We start with coercion. On multiple occasions, the officials coerced
the platforms into direct action via urgent, uncompromising demands to
moderate content. Privately, the officials were not shy in their requests—
they asked the platforms to remove posts “ASAP” and accounts
“immediately,” and to “slow[] down” or “demote[]” content. In doing so,
the officials were persistent and angry. Cf. Bantam Books, 372 U.S. at 62–63.
When the platforms did not comply, officials followed up by asking why posts
were “still up,” stating (1) “how does something like [this] happen,” (2)
“what good is” flagging if it did not result in content moderation, (3) “I don’t
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know why you guys can’t figure this out,” and (4) “you are hiding the ball,”
while demanding “assurances” that posts were being taken down. And, more
importantly, 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. As one official put it, “removing bad information”
is “one of the easy, low-bar things you guys [can] do to make people like
me”—that is, White House officials—“think you’re taking action.”
That alone may be enough for us to find coercion. Like in Bantam
Books, the officials here set about to force the platforms to remove
metaphorical books from their shelves. It is uncontested that, between the
White House and the Surgeon General’s office, government officials asked
the platforms to remove undesirable posts and users from their platforms,
sent follow-up messages of condemnation when they did not, and publicly
called on the platforms to act. When the officials’ demands were not met, the
platforms received promises of legal regime changes, enforcement actions,
and other unspoken threats. That was likely coercive. See Warren, 66 F.4th
at 1211–12.
That being said, even though coercion may have been readily
apparent here, we find it fitting to consult the Second Circuit’s four-factor
test for distinguishing coercion from persuasion. In asking whether the
officials’ messages can “reasonably be construed” as threats of adverse
consequences, we look to (1) the officials’ word choice and tone; (2) the
recipient’s perception; (3) the presence of authority; and (4) whether the
speaker refers to adverse consequences. Vullo, 49 F.4th at 715; see also
Warren, 66 F.4th at 1207.
First, the officials’ demeanor. We find, like the district court, that the
officials’ communications—reading them in “context, not in isolation”—
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were on-the-whole intimidating. Warren, 66 F.4th at 1208. In private
messages, the officials demanded “assurances” from the platforms that they
were moderating content in compliance with the officials’ requests, and used
foreboding, inflammatory, and hyper-critical phraseology when they
seemingly did not, like “you are hiding the ball,” you are not “trying to solve
the problem,” and we are “gravely concerned” that you are “one of the top
drivers of vaccine hesitancy.” In public, they said that the platforms were
irresponsible, let “misinformation [] poison” America, were “literally
costing . . . lives,” and were “killing people.” While officials are entitled to
“express their views and rally support for their positions,” the “word choice
and tone” applied here reveals something more than mere requests. Id. at
1207–08.
Like Bantam Books—and unlike the requests in Warren—many of the
officials’ asks were “phrased virtually as orders,” 372 U.S. at 68, like
requests to remove content “ASAP” or “immediately.” The threatening
“tone” of the officials’ commands, as well as of their “overall interaction”
with the platforms, is made all the more evident when we consider the
persistent nature of their messages. Generally speaking, “[a]n interaction
will tend to be more threatening if the official refuses to take ‘no’ for an
answer and pesters the recipient until it succumbs.” Warren, 66 F.4th at 1209
(citing Bantam Books, 372 U.S. at 62–63). Urgency can have the same effect.
See Backpage.com, 807 F.3d at 237 (finding the “urgency” of a sheriff’s letter,
including a follow-up, “imposed another layer of coercion due to its strong
suggestion that the companies could not simply ignore” the sheriff), cert.
denied, 137 S. Ct. 46 (2016). Here, the officials’ correspondences were both
persistent and urgent. They sent repeated follow-up emails, whether to ask
why a post or account was “still up” despite being flagged or to probe deeper
into the platforms’ internal policies. On the latter point, for example, one
official asked at least twelve times for detailed information on Facebook’s
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moderation practices and activities. Admittedly, many of the officials’
communications are not by themselves coercive. But, we do not take a
speaker’s communications “in isolation.” Warren, 66 F.4th at 1208. Instead,
we look to the “tenor” of the parties’ relationship and the conduct of the
government in context. Id. at 1209. Given their treatment of the platforms as
a whole, we find the officials’ tone and demeanor was coercive, not merely
persuasive.
Second, we ask how the platforms perceived the communications.
Notably, “a credible threat may violate the First Amendment even if ‘the
victim ignores it, and the threatener folds his tent.’” Id. at 1210 (quoting
Backpage.com, 807 F.3d at 231). Still, it is more likely to be coercive if there is
some evidence that the recipient’s subsequent conduct is linked to the
official’s message. For example, in Warren, the Ninth Circuit court
concluded that Amazon’s decision to stop advertising a specific book was
“more likely . . . a response to widespread concerns about the spread of
COVID-19,” as there was “no evidence that the company changed [course]
in response to Senator Warren’s letter.” Id. at 1211. Here, there is plenty of
evidence—both direct and circumstantial, considering the platforms’
contemporaneous actions—that the platforms were influenced by the
officials’ demands. When officials asked for content to be removed, the
platforms took it down. And, when they asked for the platforms to be more
aggressive, “interven[e]” more often, take quicker actions, and modify their
“internal policies,” the platforms did—and they sent emails and assurances
confirming as much. For example, as was common after public critiques, one
platform assured the officials they were “committed to addressing the []
misinformation that you’ve called on us to address” after the White House
issued a public statement. Another time, one company promised to make an
employee “available on a regular basis” so that the platform could
“automatically prioritize” the officials’ requests after criticism of the
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platform’s response time. Yet another time, a platform said it was going to
“adjust [its] policies” to include “specific recommendations for
improvement” from the officials, and emailed as much because they
“want[ed] to make sure to keep you informed of our work on each” change.
Those are just a few of many examples of the platforms changing—and
acknowledging as much—their course as a direct result of the officials’
messages.
Third, we turn to whether the speaker has “authority over the
recipient.” 66 F.4th at 1210. Here, that is clearly the case. As an initial
matter, the White House wields significant power in this Nation’s
constitutional landscape. It enforces the laws of our country, U.S. Const.
art. II, and—as the head of the executive branch—directs an army of federal
agencies that create, modify, and enforce federal regulations. We can hardly
say that, like the senator in Warren, the White House is “removed from the
relevant levers of power.” 66 F.4th at 1210. At the very least, as agents of the
executive branch, the officials’ powers track somewhere closer to those of
the commission in Bantam Books—they were legislatively given the power to
“investigate violations[] and recommend prosecutions.” Id. (citing Bantam
Books, 372 U.S. at 66).
But, authority over the recipient does not have to be a clearly-defined
ability to act under the close nexus test. Instead, a generalized, non-descript
means to punish the recipient may suffice depending on the circumstances.
As the Ninth Circuit explained in Warren, a message may be “inherently
coercive” if, for example, it was conveyed by a “law enforcement officer” or
“penned by an executive official with unilateral power.” Id. (emphasis
added). In other words, a speaker’s power may stem from an inherent
authority over the recipient. See, e.g., Backpage.com, 807 F.3d 229. That
reasoning is likely applicable here, too, given the officials’ executive status.
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It is not even necessary that an official have direct power over the
recipient. Even if the officials “lack[ed] direct authority” over the platforms,
the cloak of authority may still satisfy the authority prong. See Warren, 66
F.4th at 1210. After all, we ask whether a “reasonable person” would be
threatened by an official’s statements. Id. Take, for example, Okwedy. There,
a borough president penned a letter to a company—which, per the official,
owned a “number of billboards on Staten Island and derive[d] substantial
economic benefits from them”—and “call[ed] on [them] as a responsible
member of the business community to please contact” his “legal counsel.”
333 F.3d at 342. The Second Circuit found that, even though the official
“lacked direct regulatory authority” or control over the company, an
“implicit threat” flowed from his letter because he had some innate authority
to affect the company. Id. at 344. The Second Circuit noted that “[a]lthough
the existence of regulatory or other direct decisionmaking authority is
certainly relevant to the question of whether a government official’s
comments were unconstitutionally threatening or coercive, a defendant
without such direct regulatory or decisionmaking authority can also exert an
impermissible type or degree of pressure.” Id. at 343.
Consider another example, Backpage.com. There, a sheriff sent a
cease-and-desist letter to credit card companies—which he admittedly “had
no authority to take any official action” against—to stop doing business with
a website. 807 F.3d at 230, 236. “[E]ven if the companies understood the
jurisdictional constraints on [the sheriff]’s ability to proceed against them
directly,” the sheriff’s letter was still coercive because, among other reasons,
it “invok[ed] the legal obligations of [the recipients] to cooperate with law
enforcement,” and the sheriff could easily “refer the credit card companies
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to the appropriate authority to investigate” their dealings, 16 much like a
White House official could contact the Department of Justice. Id. at 236–37.
True, the government can “appeal[]” to a private party’s “interest in
avoiding liability” so long as that reference is not meant to intimidate or
compel. Id. at 237; see also Vullo, 49 F.4th at 717–19 (statements were non-
coercive because they referenced legitimate use of powers in a
nonthreatening manner). But here, the officials’ demands that the platforms
remove content and change their practices were backed by the officials’
unilateral power to act or, at the very least, their ability to inflict “some form
of punishment” against the platforms. 17 Okwedy, 333 F.3d at 342 (citation
omitted) (emphasis added). Therefore, the authority factor weighs in favor
of finding the officials’ messages coercive.
Finally, and “perhaps most important[ly],” we ask whether the
speaker “refers to adverse consequences that will follow if the recipient does
not accede to the request.” Warren, 66 F.4th at 1211 (citing Vullo, 49 F.4th
at 715). Explicit and subtle threats both work— “an official does not need to
_____________________
16
This was true even though the financial institutions were large, sophisticated,
and presumably understood the federal authorities were unlikely to prosecute the
companies. Backpage.com, 807 F.3d at 234. As the Seventh Circuit explained, it was still in
the credit card companies’ financial interests to comply. Backpage’s measly $135 million
in annual revenue was a drop in the bucket of the financial service companies’ combined
net revenue of $22 billion. Id. at 236. Unlike credit card processors that at least made money
servicing Backpage, social-media platforms typically depend on advertisers, not their users,
for revenue. Cf. Wash. Post v. McManus, 944 F.3d 506, 516 (4th Cir. 2019) (holding
campaign finance regulations on online ads unconstitutional where they “ma[de] it
financially irrational, generally speaking, for platforms to carry political speech when other,
more profitable options are available”).
17
Or, as the Ninth Circuit put it, “public officials may criticize practices that they
would have no constitutional ability to regulate, so long as there is no actual or threatened
imposition of government power or sanction.” Warren, 66 F.4th at 1207 (citation omitted)
(emphasis added).
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say ‘or else’ if a threat is clear from the context.” Id. (citing Backpage.com,
807 F.3d at 234). Again, this factor is met.
Here, the officials made express threats and, at the very least, leaned
into the inherent authority of the President’s office. The officials made
inflammatory accusations, such as saying that the platforms were
“poison[ing]” the public, and “killing people.” The platforms were told they
needed to take greater responsibility and action. Then, they followed their
statements with threats of “fundamental reforms” like regulatory changes
and increased enforcement actions that would ensure the platforms were
“held accountable.” But, beyond express threats, there was always an
“unspoken ‘or else.’” Warren, 66 F.4th at 1212. After all, as the executive of
the Nation, the President wields awesome power. The officials were not shy
to allude to that understanding native to every American—when the
platforms faltered, the officials warned them that they were
“[i]nternally . . . considering our options on what to do,” their “concern[s]
[were] shared at the highest (and I mean highest) levels of the [White
House],” and the “President has long been concerned about the power of
large social media platforms.” Unlike the letter in Warren, the language
deployed in the officials’ campaign reveals clear “plan[s] to punish” the
platforms if they did not surrender. Warren, 66 F.4th at 1209. Compare id.,
with Backpage.com, 807 F.3d at 237. Consequently, the four-factor test weighs
heavily in favor of finding the officials’ messages were coercive, not
persuasive.
Notably, the Ninth Circuit recently reviewed a case that is strikingly
similar to ours. In O’Handley, officials from the California Secretary of
State’s office allegedly “act[ed] in concert” with Twitter to censor speech
on the platform. 62 F.4th at 1153. Specifically, the parties had a
“collaborative relationship” where officials flagged tweets and Twitter
“almost invariably” took them down. Id. Therefore, the plaintiff contended,
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when his election-fraud-based post was removed, California “abridged his
freedom of speech” because it had “pressured Twitter to remove disfavored
content.” Id. at 1163. But, the Ninth Circuit disagreed, finding the close
nexus test was not satisfied. The court reasoned that there was no clear
indication that Twitter “would suffer adverse consequences if it refused” to
comply with California’s request. Id. at 1158. Instead, it was a “purely
optional,” “no strings attached” request. Id. Consequently, “Twitter
complied with the request under the terms of its own content-moderation
policy and using its own independent judgment.” Id. 18 To the Ninth Circuit,
there was no indication—whether via tone, content, or otherwise—that the
state would retaliate against inaction given the insubstantial relationship.
Ultimately, the officials conduct was “far from the type of coercion” seen in
cases like Bantam Books. Id. In contrast, here, the officials made clear that the
_____________________
18
The Ninth Circuit insightfully noted the difficult task of applying the coercion
test in the First Amendment context:
[W]e have drawn a sharp distinction between attempts to convince and
attempts to coerce. Particularly relevant here, we have held that
government officials do not violate the First Amendment when they
request that a private intermediary not carry a third party’s speech so long
as the officials do not threaten adverse consequences if the intermediary
refuses to comply. This distinction tracks core First Amendment
principles. A private party can find the government’s stated reasons for
making a request persuasive, just as it can be moved by any other speaker’s
message. The First Amendment does not interfere with this
communication so long as the intermediary is free to disagree with the
government and to make its own independent judgment about whether to
comply with the government’s request.
O’Handley, 62 F.4th at 1158. After all, consistent with their constitutional and statutory
authority, state “[a]gencies are permitted to communicate in a non-threatening manner
with the entities they oversee without creating a constitutional violation.” Id. at 1163 (citing
Vullo, 49 F.4th at 714–19).
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platforms would suffer adverse consequences if they failed to comply, through
express or implied threats, and thus the requests were not optional.
Given all of the above, we are left only with the conclusion that the
officials’ statements were coercive. That conclusion tracks with the decisions
of other courts. After reviewing the four-factor test, it is apparent that the
officials’ messages could “reasonably be construed” as threats. Warren, 66
F.4th at 1208; Vullo, 49 F.4th at 716. Here, unlike in Warren, the officials’
“call[s] to action”—given the context and officials’ tone, the presence of
some authority, the platforms’ yielding responses, and the officials’ express
and implied references to adverse consequences—“directly suggest[ed] that
compliance was the only realistic option to avoid government sanction.” 66
F.4th at 1208. And, unlike O’Handley, the officials were not simply flagging
posts with “no strings attached,” 62 F.4th at 1158—they did much, much
more.
Now, we turn to encouragement. We find that the officials also
significantly encouraged the platforms to moderate content by exercising
active, meaningful control over those decisions. Specifically, the officials
entangled themselves in the platforms’ decision-making processes, namely
their moderation policies. See Blum, 457 U.S. at 1008. That active,
meaningful control is evidenced plainly by a view of the record. The officials
had consistent and consequential interaction with the platforms and
constantly monitored their moderation activities. In doing so, they repeatedly
communicated their concerns, thoughts, and desires to the platforms. The
platforms responded with cooperation—they invited the officials to
meetings, roundups, and policy discussions. And, more importantly, they
complied with the officials’ requests, including making changes to their
policies.
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The officials began with simple enough asks of the platforms—“can
you share more about your framework here” or “do you have data on the
actual number” of removed posts? But, the tenor later changed. When the
platforms’ policies were not performing to the officials’ liking, they pressed
for more, persistently asking what “interventions” were being taken, “how
much content [was] being demoted,” and why certain posts were not being
removed. Eventually, the officials pressed for outright change to the
platforms’ moderation policies. They did so privately and publicly. One
official emailed a list of proposed changes and said, “this is circulating around
the building and informing thinking.” The White House Press Secretary
called on the platforms to adopt “proposed changes” that would create a
more “robust enforcement strategy.” And the Surgeon General published an
advisory calling on the platforms to “[e]valuate the effectiveness of [their]
internal policies” and implement changes. Beyond that, they relentlessly
asked the platforms to remove content, even giving reasons as to why such
content should be taken down. They also followed up to ensure compliance
and, when met with a response, asked how the internal decision was made.
And, the officials’ campaign succeeded. The platforms, in
capitulation to state-sponsored pressure, changed their moderation policies.
The platforms explicitly recognized that. For example, one platform told the
White House it was “making a number of changes”—which aligned with the
officials’ demands—as it knew its “position on [misinformation] continues
to be a particular concern” for the White House. The platform noted that, in
line with the officials’ requests, it would “make sure that these additional
[changes] show results—the stronger demotions in particular should deliver
real impact.” Similarly, one platform emailed a list of “commitments” after
a meeting with the White House which included policy “changes” “focused
on reducing the virality” of anti-vaccine content even when it “does not
contain actionable misinformation.” Relatedly, one platform told the
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Surgeon General that it was “committed to addressing the [] misinformation
that you’ve called on us to address,” including by implementing a set of
jointly proposed policy changes from the White House and the Surgeon
General.
Consequently, it is apparent that the officials exercised meaningful
control—via changes to the platforms’ independent processes—over the
platforms’ moderation decisions. By pushing changes to the platforms’
policies through their expansive relationship with and informal oversight
over the platforms, the officials imparted a lasting influence on the platforms’
moderation decisions without the need for any further input. In doing so, the
officials ensured that any moderation decisions were not made in accordance
with independent judgments guided by independent standards. See id.; see
also Am. Mfrs., 526 U.S. at 52 (“The decision to withhold payment, like the
decision to transfer Medicaid patients to a lower level of care in Blum, is made
by concededly private parties, and ‘turns on . . . judgments made by private
parties’ without ‘standards . . . established by the State.’”). Instead, they
were encouraged by the officials’ imposed standards.
In sum, we find that the White House officials, in conjunction with the
Surgeon General’s office, coerced and significantly encouraged the platforms
to moderate content. As a result, the platforms’ actions “must in law be
deemed to be that of the State.” Blum, 457 U.S. at 1004.
2.
Next, we consider the FBI. We find that the FBI, too, likely (1)
coerced the platforms into moderating content, and (2) encouraged them to
do so by effecting changes to their moderation policies, both in violation of
the First Amendment.
We start with coercion. Similar to the White House, Surgeon General,
and CDC officials, the FBI regularly met with the platforms, shared
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“strategic information,” frequently alerted the social media companies to
misinformation spreading on their platforms, and monitored their content
moderation policies. But, the FBI went beyond that—they urged the
platforms to take down content. Turning to the Second Circuit’s four-factor
test, we find that those requests were coercive. Vullo, 49 F.4th at 715.
First, given the record before us, we cannot say that the FBI’s
messages were plainly threatening in tone or manner. Id. But, second, we do
find the FBI’s requests came with the backing of clear authority over the
platforms. After all, content moderation requests “might be inherently
coercive if sent by . . . [a] law enforcement officer.” Warren, 66 F.4th at 1210
(citations omitted); see also Zieper v. Metzinger, 392 F. Supp. 2d 516, 531
(S.D.N.Y. 2005) (holding that a reasonable jury could find an FBI agent’s
request coercive when he asked an internet service provider to take down a
controversial video that could be “inciting a riot” because he was “an FBI
agent charged with investigating the video”); Backpage, 807 F.3d at 234(“[C]redit card companies don’t like being threatened by a law-enforcement
official that he will sic the feds on them, even if the threat may be empty.”).
This is especially true of the lead law enforcement, investigatory, and
domestic security agency for the executive branch. Consequently, because
the FBI wielded some authority over the platforms, see Okwedy, 333 F.3d at
344, the FBI’s takedown requests can “reasonably be construed” as coercive
in nature, Warren, 66 F.4th at 1210.
Third, although the FBI’s communications did not plainly reference
adverse consequences, an actor need not express a threat aloud so long as,
given the circumstances, the message intimates that some form of
punishment will follow noncompliance. Id. at 1209. Here, beyond its inherent
authority, the FBI—unlike most federal actors—also has tools at its disposal
to force a platform to take down content. For instance, in Zieper, an FBI agent
asked a web-hosting platform to take down a video portraying an imaginary
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documentary showing preparations for a military takeover of Times Square
on the eve of the new millennium. 392 F. Supp. 2d at 520–21. In appealing to
the platform, the FBI agent said that he was concerned that the video could
be “inciting a riot” and testified that he was trying to appeal to the platform’s
“‘good citizenship’ by pointing out a public safety concern.” Id. at 531. And
these appeals to the platform’s “good citizenship” worked—the platform
took down the video. Id. at 519. The Southern District of New York
concluded that a reasonable jury could find that statement coercive,
“particularly when said by an FBI agent charged with investigating the
video.” Id. at 531. Indeed, the question is whether a message intimates that
some form of punishment that may be used against the recipient, an analysis
that includes means of retaliation that are not readily apparent. See Warren,
66 F.4th at 1210.
Fourth, the platforms clearly perceived the FBI’s messages as threats.
For example, right before the 2022 congressional election, the FBI warned
the platforms of “hack and dump” operations from “state-sponsored
actors” that would spread misinformation through their sites. In doing so,
the FBI officials leaned into their inherent authority. So, the platforms
reacted as expected—by taking down content, including posts and accounts
that originated from the United States, in direct compliance with the request.
Considering the above, we conclude that the FBI coerced the platforms into
moderating content. But, the FBI’s endeavors did not stop there.
We also find that the FBI likely significantly encouraged the platforms
to moderate content by entangling itself in the platforms’ decision-making
processes. Blum, 457 U.S. at 1008. Beyond taking down posts, the platforms
also changed their terms of service in concert with recommendations from
the FBI. For example, several platforms “adjusted” their moderation
policies to capture “hack-and-leak” content after the FBI asked them to do
so (and followed up on that request). Consequently, when the platforms
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subsequently moderated content that violated their newly modified terms of
service (e.g., the results of hack-and-leaks), they did not do so via
independent standards. See Blum, 457 U.S. at 1008. Instead, those decisions
were made subject to commandeered moderation policies.
In short, when the platforms acted, they did so in response to the
FBI’s inherent authority and based on internal policies influenced by FBI
officials. Taking those facts together, we find the platforms’ decisions were
significantly encouraged and coerced by the FBI. 19
3.
Next, we turn to the CDC. We find that, although not plainly coercive,
the CDC officials likely significantly encouraged the platforms’ moderation
decisions, meaning they violated the First Amendment.
We start with coercion. Here, like the other officials, the CDC
regularly met with the platforms and frequently flagged content for removal.
But, unlike the others, the CDC’s requests for removal were not coercive—
they did not ask the platforms in an intimidating or threatening manner, do
not possess any clear authority over the platforms, and did not allude to any
adverse consequences. Consequently, we cannot say the platforms’
moderation decisions were coerced by CDC officials.
The same, however, cannot be said for significant encouragement.
Ultimately, the CDC was entangled in the platforms’ decision-making
processes, Blum, 457 U.S. at 1008.
_____________________
19
Plaintiffs and several amici assert that the FBI and other federal actors coerced
or significantly encouraged the social-media companies into disseminating information that
was favorable to the administration—information the federal officials knew was false or
misleading. We express no opinion on those assertions because they are not necessary to
our holding here.
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The CDC’s relationship with the platforms began by defining—in
“Be On the Lookout” meetings—what was (and was not) “misinformation”
for the platforms. Specifically, CDC officials issued “advisories” to the
platforms warning them about misinformation “hot topics” to be wary of.
From there, CDC officials instructed the platforms to label disfavored posts
with “contextual information,” and asked for “amplification” of approved
content. That led to CDC officials becoming intimately involved in the
various platforms’ day-to-day moderation decisions. For example, they
communicated about how a platform’s “moderation team” reached a certain
decision, how it was “approach[ing] adding labels” to particular content, and
how it was deploying manpower. Consequently, the CDC garnered an
extensive relationship with the platforms.
From that relationship, the CDC, through authoritative guidance,
directed changes to the platforms’ moderation policies. At first, the
platforms asked CDC officials to decide whether certain claims were
misinformation. In response, CDC officials told the platforms whether such
claims were true or false, and whether information was “misleading” or
needed to be addressed via CDC-backed labels. That back-and-forth then led
to “[s]omething more.” Roberts, 742 F.2d at 228.
Specifically, CDC officials directly impacted the platforms’
moderation policies. For example, in meetings with the CDC, the platforms
actively sought to “get into [] policy stuff” and run their moderation policies
by the CDC to determine whether the platforms’ standards were “in the
right place.” Ultimately, the platforms came to heavily rely on the CDC. They
adopted rule changes meant to implement the CDC’s guidance. As one
platform said, they “were able to make [changes to the ‘misinfo policies’]
based on the conversation [they] had last week with the CDC,” and they
“immediately updated [their] policies globally” following another meeting.
And, those adoptions led the platforms to make moderation decisions based
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entirely on the CDC’s say-so—“[t]here are several claims that we will be
able to remove as soon as the CDC debunks them; until then, we are unable
to remove them.” That dependence, at times, was total. For example, one
platform asked the CDC how it should approach certain content and even
asked the CDC to double check and proofread its proposed labels.
Viewing these facts, we are left with no choice but to conclude that the
CDC significantly encouraged the platforms’ moderation decisions. Unlike
in Blum, the platforms’ decisions were not made by independent standards,
457 U.S. at 1008, but instead were marred by modification from CDC
officials. Thus, the resulting content moderation, “while not compelled by
the state, was so significantly encouraged, both overtly and covertly” by
CDC officials that those decisions “must in law be deemed to be that of the
state.” Howard Gault, 848 F.2d at 555 (alterations adopted) (internal
quotation marks and citation omitted).
4.
Next, we examine CISA. We find that, for many of the same reasons
as the FBI and the CDC, CISA also likely violated the First Amendment.
First, CISA was the “primary facilitator” of the FBI’s interactions with the
social-media platforms and worked in close coordination with the FBI to push
the platforms to change their moderation policies to cover “hack-and-leak”
content. Second, CISA’s “switchboarding” operations, which, in theory,
involved CISA merely relaying flagged social-media posts from state and
local election officials to the platforms, was, in reality, “[s]omething more.”
Roberts, 742 F.2d at 228. CISA used its frequent interactions with social-
media platforms to push them to adopt more restrictive policies on censoring
election-related speech. And CISA officials affirmatively told the platforms
whether the content they had “switchboarded” was true or false. Thus,
when the platforms acted to censor CISA-switchboarded content, they did
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not do so independently. Rather, the platforms’ censorship decisions were
made under policies that CISA has pressured them into adopting and based
on CISA’s determination of the veracity of the flagged information. Thus,
CISA likely significantly encouraged the platforms’ content-moderation
decisions and thereby violated the First Amendment. See Blum, 457 U.S. at
1008; Howard Gault, 848 F.2d at 555.
5.
Finally, we address the remaining officials—the NIAID and the State
Department. Having reviewed the record, we find the district court erred in
enjoining these other officials. Put simply, there was not, at this stage,
sufficient evidence to find that it was likely these groups coerced or
significantly encouragement the platforms.
For the NIAID officials, it is not apparent that they ever
communicated with the social-media platforms. Instead, the record shows, at
most, that public statements by Director Anthony Fauci and other NIAID
officials promoted the government’s scientific and policy views and
attempted to discredit opposing ones—quintessential examples of
government speech that do not run afoul of the First Amendment. See
Pleasant Grove City v. Summum, 555 U.S. 460, 467–68 (2009) (“[The
government] is entitled to say what it wishes, and to select the views that it
wants to express.” (quotation marks and citations omitted)); Nat’l
Endowment for Arts v. Finley, 524 U.S. 569, 598 (1998) (Scalia, J., concurring)
(“It is the very business of government to favor and disfavor points of
view . . . .”). Consequently, with only insignificant (if any) communication
(direct or indirect) with the platforms, we cannot say that the NIAID officials
likely coerced or encouraged the platforms to act.
As for the State Department, while it did communicate directly with
the platforms, so far there is no evidence these communications went beyond
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educating the platforms on “tools and techniques” used by foreign actors.
There is no indication that State Department officials flagged specific
content for censorship, suggested policy changes to the platforms, or engaged
in any similar actions that would reasonably bring their conduct within the
scope of the First Amendment’s prohibitions. After all, their messages do not
appear coercive in tone, did not refer to adverse consequences, and were not
backed by any apparent authority. And, per this record, those officials were
not involved to any meaningful extent with the platforms’ moderation
decisions or standards.
* * *
Ultimately, we find the district court did not err in determining that
several officials—namely the White House, the Surgeon General, the CDC,
the FBI, and CISA—likely coerced or significantly encouraged social-media
platforms to moderate content, rendering those decisions state actions. 20 In
doing so, the officials likely violated the First Amendment. 21
But, we emphasize the limited reach of our decision today. We do not
uphold the injunction against all the officials named in the complaint. Indeed,
many of those officials were permissibly exercising government speech,
“carrying out [their] responsibilities,” or merely “engaging in [a] legitimate
[] action.” Vullo, 49 F.4th at 718–19. That distinction is important because
_____________________
20
Here, in holding that some of the officials likely coerced or sufficiently
encouraged the platforms to censor content, we pass no judgment on any joint actor or
conspiracy-based state action theory.
21
“With very limited exceptions, none applicable to this case, censorship—‘an
effort by administrative methods to prevent the dissemination of ideas or opinions thought
dangerous or offensive,’ as distinct from punishing such dissemination (if it falls into one
of the categories of punishable speech, such as defamation or threats) after it has
occurred—is prohibited by the First Amendment as it has been understood by the courts.”
Backpage.com, 807 F.3d at 235 (citation omitted).
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the state-action doctrine is vitally important to our Nation’s operation—by
distinguishing between the state and the People, it promotes “a robust sphere
of individual liberty.” Halleck, 139 S. Ct. at 1928. That is why the Supreme
Court has been reluctant to expand the scope of the doctrine. See Matal v.
Tan, 582 U.S. 218, 235 (2017) (“[W]e must exercise great caution before
extending our government-speech precedents.”). If just any relationship
with the government “sufficed to transform a private entity into a state actor,
a large swath of private entities in America would suddenly be turned into
state actors and be subject to a variety of constitutional constraints on their
activities.” Halleck, 139 S. Ct. at 1932. So, we do not take our decision today
lightly. But, the Supreme Court has rarely been faced with a coordinated
campaign of this magnitude orchestrated by federal officials that jeopardized
a fundamental aspect of American life. Therefore, the district court was
correct in its assessment—“unrelenting pressure” from certain government
officials likely “had the intended result of suppressing millions of protected
free speech postings by American citizens.” We see no error or abuse of
discretion in that finding. 22
V.
Next, we address the equities. Plaintiffs seeking a preliminary
injunction must show that irreparable injury is “likely” absent an injunction,
the balance of the equities weighs in their favor, and an injunction is in the
_____________________
22
Our holding today, as is appropriate under the state-action doctrine, is limited.
Like in Roberts, we narrowly construe today’s finding of state action to apply only to the
challenged decisions. See 742 F.2d at 228 (“We do not doubt that many of the actions of
the racetrack and its employees are no more than private business decisions,” but “[i]n the
area of stalling, [] state regulation and involvement is so specific and so pervasive that
[such] decisions may be considered to bear the imprimatur of the state.”).
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public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)
(collecting cases).
While “[t]he loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury,” Roman Cath.
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (per curiam) (quoting
Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)), “invocation of
the First Amendment cannot substitute for the presence of an imminent,
non-speculative irreparable injury,” Google, Inc. v. Hood, 822 F.3d 212, 228
(5th Cir. 2016).
Here, the district court found that the Plaintiffs submitted enough
evidence to show that irreparable injury is likely to occur during the pendency
of the litigation. In so doing, the district court rejected the officials’
arguments that the challenged conduct had ceased and that future harm was
speculative, drawing on mootness and standing doctrines. Applying the
standard for mootness, the district court concluded that a defendant must
show that “it is absolutely clear the alleged wrongful behavior could not
reasonably be expected to recur” and that the officials had failed to make
such showing here. In assessing whether Plaintiffs’ claims of future harm
were speculative and dependent on the actions of social-media companies,
the district court applied a quasi-standing analysis and found that the
Plaintiffs had alleged a “substantial risk” of future harm that is not
“imaginary or wholly speculative,” pointing to the officials’ ongoing
coordination with social-media companies and willingness to suppress free
speech on a myriad of hot-button issues.
We agree that the Plaintiffs have shown that they are likely to suffer
an irreparable injury. Deprivation of First Amendment rights, even for a
short period, is sufficient to establish irreparable injury. Elrod, 427 U.S. at
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373; Cuomo, 141 S. Ct. at 67; Opulent Life Church v. City of Holly Springs, 697
F.3d 279, 295 (5th Cir. 2012).
The district court was right to be skeptical of the officials’ claims that
they had stopped all challenged conduct. Cf. Speech First, Inc. v. Fenves, 979
F.3d 319, 328 (5th Cir. 2020) (“[A] defendant’s voluntary cessation of a
challenged practice does not deprive a federal court of its power to determine
the legality of the practice, even in cases in which injunctive relief is
sought.”). But, the district court’s use of a “not imaginary or speculative”
standard in the irreparable harm context is inconsistent with binding case law.
See Winter, 555 U.S. at 22 (“Issuing a preliminary injunction based only on a
possibility of irreparable harm is inconsistent with our characterization of
injunctive relief as an extraordinary remedy that may only be awarded upon
a clear showing that the plaintiff is entitled to such relief.” (citation omitted)
(emphasis added)). The correct standard is whether a future injury is
“likely.” Id. But, because the Plaintiffs sufficiently demonstrated that their
First Amendment interests are either threatened or impaired, they have met
this standard. See Opulent Life Church, 697 F.3d at 295 (citing 11A Charles
Alan Wright et al., Federal Practice and Procedure § 2948.1 (2d ed. 1995)
(“When an alleged deprivation of a constitutional right is involved, most
courts hold that no further showing of irreparable injury is necessary.”)).
Indeed, the record shows, and counsel confirmed at oral argument, that the
officials’ challenged conduct has not stopped.
Next, we turn to whether the balance of the equities warrants an
injunction and whether such relief is in the public interest. Where the
government is the opposing party, harm to the opposing party and the public
interest “merge.” Nken v. Holder, 556 U.S. 418, 435 (2009).
The district court concluded that the equities weighed in favor of
granting the injunction because the injunction maintains the “constitutional
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structure” and Plaintiffs’ free speech rights. The officials argue that the
district court gave short shrift to their assertions that the injunction could
limit the Executive Branch’s ability to “persuade” the American public,
which raises separation-of-powers issues.
Although both Plaintiffs and the officials assert that their ability to
speak is affected by the injunction, the government is not permitted to use
the government-speech doctrine to “silence or muffle the expression of
disfavored viewpoints.” Matal, 582 U.S. at 235.
It is true that the officials have an interest in engaging with social-
media companies, including on issues such as misinformation and election
interference. But the government is not permitted to advance these interests
to the extent that it engages in viewpoint suppression. Because “[i]njunctions
protecting First Amendment freedoms are always in the public interest,” the
equities weigh in Plaintiffs’ favor. Opulent Life Church, 697 F.3d at 298(quotation marks and citations omitted).
While the officials raise legitimate concerns that the injunction could
sweep in lawful speech, we have addressed those concerns by modifying the
scope of the injunction.
VI.
Finally, we turn to the language of the injunction itself. An injunction
“is overbroad if it is not ‘narrowly tailored to remedy the specific action
which gives rise to the order’ as determined by the substantive law at issue.”
Scott v. Schedler, 826 F.3d 207, 211 (5th Cir. 2016) (alterations adopted)
(quoting John Doe #1 v. Veneman, 380 F.3d 807, 818 (5th Cir. 2004)). This
requirement that a “plaintiff’s remedy must be tailored to redress the
plaintiff’s particular injury” is in recognition of a federal court’s
“constitutionally prescribed role . . . to vindicate the individual rights of the
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people appearing before it,” not “generalized partisan preferences.” Gill v.
Whitford, 138 S. Ct. 1916, 1933–34 (2018).
In addition, injunctions cannot be vague. “Every order granting an
injunction . . . must: (A) state the reasons why it issued; (B) state its terms
specifically; and (C) describe in reasonable detail—and not by referring to
the complaint or other document—the act or acts restrained or required.”
Fed. R. Civ. P. 65(d)(1). The Supreme Court has explained:
[T]he specificity provisions of Rule 65(d) are no mere technical
requirements. The Rule was designed to prevent uncertainty
and confusion on the part of those faced with injunctive orders,
and to avoid the possible founding of a contempt citation on a
decree too vague to be understood. Since an injunctive order
prohibits conduct under threat of judicial punishment, basic
fairness requires that those enjoined receive explicit notice of
precisely what conduct is outlawed.
Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (citations omitted).
To be sure, “[t]he specificity requirement is not unwieldy,” Meyer v.
Brown & Root Construction Co., 661 F.2d 369, 373 (5th Cir. 1981), and
“elaborate detail is unnecessary,” Islander E. Rental Program v. Barfield, No.
96-41275, 1998 WL 307564, at *4 (5th Cir. Mar. 24, 1998). But still, “an
ordinary person reading the court’s order should be able to ascertain from
the document itself exactly what conduct is proscribed.” Louisiana v. Biden,
45 F.4th at 846 (citation omitted).
The preliminary injunction here is both vague and broader than
necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary
juncture. As an initial matter, it is axiomatic that an injunction is overbroad
if it enjoins a defendant from engaging in legal conduct. Nine of the
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preliminary injunction’s ten prohibitions risk doing just that. Moreover,
many of the provisions are duplicative of each other and thus unnecessary.
Prohibitions one, two, three, four, five, and seven prohibit the officials
from engaging in, essentially, any action “for the purpose of urging,
encouraging, pressuring, or inducing” content moderation. But “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. Compare Walker, 576 U.S. at 208 (“[A]s a general
matter, when the government speaks it is entitled to promote a program, to
espouse a policy, or to take a position.”), Finley, 524 U.S. at 598 (Scalia, J.,
concurring in judgment) (“It is the very business of government to favor and
disfavor points of view . . . .”), and Vullo, 49 F.4th at 717 (holding statements
“encouraging” companies to evaluate risk of doing business with the plaintiff
did not violate the Constitution where the statements did not “intimate that
some form of punishment or adverse regulatory action would follow the
failure to accede to the request”), with Blum, 457 U.S. at 1004, and
O’Handley, 62 F.4th at 1158 (“In deciding whether the government may urge
a private party to remove (or refrain from engaging in) protected speech, we
have drawn a sharp distinction between attempts to convince and attempts
to coerce.”). These provisions also tend to overlap with each other, barring
various actions that may cross the line into coercion. There is no need to try
to spell out every activity that the government could possibly engage in that
may run afoul of the Plaintiffs’ First Amendment rights as long the unlawful
conduct is prohibited.
The eighth, ninth, and tenth provisions likewise may be unnecessary
to ensure Plaintiffs’ relief. A government actor generally does not violate the
First Amendment by simply “following up with social-media companies”
about content-moderation, “requesting content reports from social-media
companies” concerning their content-moderation, or asking social media
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companies to “Be on The Lookout” for certain posts. 23 Plaintiffs have not
carried their burden to show that these activities must be enjoined to afford
Plaintiffs full relief.
These provisions are vague as well. There would be no way for a
federal official to know exactly when his or her actions cross the line from
permissibly communicating with a social-media company to impermissibly
“urging, encouraging, pressuring, or inducing” them “in any way.” See Scott,
826 F.3d at 209, 213 (“[a]n injunction should not contain broad
generalities”); Islander East, 1998 WL 307564, at *4 (finding injunction
against “interfering in any way” too vague). Nor does the injunction define
“Be on The Lookout” or “BOLO.” That, too, renders it vague. See
Louisiana v. Biden, 45 F.4th at 846 (holding injunction prohibiting the federal
government from “implementing the Pause of new oil and natural gas leases
on public lands or in offshore waters as set forth in [the challenged Executive
Order]” was vague because the injunction did not define the term “Pause”
and the parties had each proffered different yet reasonable interpretations of
the Pause’s breadth).
While helpful to some extent, the injunction’s carveouts do not solve
its clarity and scope problems. Although they seem to greenlight legal speech,
the carveouts, too, include vague terms and appear to authorize activities that
the injunction otherwise prohibits on its face. For instance, it is not clear
whether the Surgeon General could publicly urge social media companies to
ensure that cigarette ads do not target children. While such a statement could
_____________________
23
While these activities, standing alone, are not violative of the First Amendment
and therefore must be removed from the preliminary injunction, we note that these
activities may violate the First Amendment when they are part of a larger scheme of
government coercion or significant encouragement, and neither our opinion nor the
modified injunction should be read to hold otherwise.
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meet the injunction’s exception for “exercising permissible public
government speech promoting government policy or views on matters of
public concern,” it also “urg[es] . . . in any manner[] social-media companies
to change their guidelines for removing, deleting, suppressing, or reducing
content containing protected speech.” This example illustrates both the
injunction’s overbreadth, as such public statements constitute lawful speech,
see Walker, 576 U.S. at 208, and vagueness, because the government-speech
exception is ill-defined, see Scott, 826 F.3d at 209, 213 (vacating injunction
requiring the Louisiana Secretary of State to maintain in force his “policies,
procedures, and directives” related to the enforcement of the National Voter
Registration Act, where “policies, procedures, and directives” were not
defined). At the same time, given the legal framework at play, these carveouts
are likely duplicative and, as a result, unnecessary.
Finally, the fifth prohibition—which bars the officials from
“collaborating, coordinating, partnering, switchboarding, and/or jointly
working with the Election Integrity Partnership, the Virality Project, the
Stanford Internet Observatory, or any like project or group” to engage in the
same activities the officials are proscribed from doing on their own— may
implicate private, third-party actors that are not parties in this case and that
may be entitled to their own First Amendment protections. Because the
provision fails to identify the specific parties that are subject to the
prohibitions, see Scott, 826 F.3d at 209, 213, and “exceeds the scope of the
parties’ presentation,” OCA-Greater Houston v. Texas, 867 F.3d 604, 616
(5th Cir. 2017), Plaintiffs have not shown that the inclusion of these third
parties is necessary to remedy their injury. So, this provision cannot stand at
this juncture. See also Alexander v. United States, 509 U.S. 544, 550 (1993)
(“[C]ourt orders that actually [] forbid speech activities are classic examples
of prior restraints.”). For the same reasons, the injunction’s application to
“all acting in concert with [the officials]” is overbroad.
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We therefore VACATE prohibitions one, two, three, four, five,
seven, eight, nine, and ten of the injunction.
That leaves provision six, which bars the officials from “threatening,
pressuring, or coercing social-media companies in any manner to remove,
delete, suppress, or reduce posted content of postings containing protected
free speech.” But, those terms could also capture otherwise legal speech. So,
the injunction’s language must be further tailored to exclusively target illegal
conduct and provide the officials with additional guidance or instruction on
what behavior is prohibited. To be sure, our standard practice is to remand
to the district court to tailor such a provision in the first instance. See Scott,
826 F.3d at 214. But this is far from a standard case. In light of the expedited
nature of this appeal, we modify the injunction’s remaining provision
ourselves.
In doing so, we look to the Seventh Circuit’s approach in
Backpage.com, 807 F.3d at 239. There, the Seventh Circuit held that a county
sheriff violated Backpage’s First Amendment rights by demanding that
financial service companies cut ties with Backpage in an effort to “crush” the
platform (an online forum for “adult” classified ads). Id. at 230. To remedy
the constitutional violation, the court issued the following injunction:
Sheriff Dart, his office, and all employees, agents, or others
who are acting or have acted for or on behalf of him, shall take
no actions, formal or informal, to coerce or threaten credit card
companies, processors, financial institutions, or other third
parties with sanctions intended to ban credit card or other
financial services from being provided to Backpage.com.
Id. at 239.
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Like the Seventh Circuit’s preliminary injunction in Backpage.com, we
endeavor to modify the preliminary injunction here to target the coercive
government behavior with sufficient clarity to provide the officials notice of
what activities are proscribed. Specifically, prohibition six of the injunction
is MODIFIED to state:
Defendants, and their employees and agents, shall take no
actions, formal or informal, directly or indirectly, to coerce or
significantly encourage social-media companies to remove,
delete, suppress, or reduce, including through altering their
algorithms, posted social-media content containing protected
free speech. That includes, but is not limited to, compelling the
platforms to act, such as by intimating that some form of
punishment will follow a failure to comply with any request, or
supervising, directing, or otherwise meaningfully controlling
the social-media companies’ decision-making processes.
Under the modified injunction, the enjoined Defendants cannot
coerce or significantly encourage a platform’s content-moderation decisions.
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. That, of course, is informed by context (e.g., persistent
pressure, perceived or actual ability to make good on a threat). The
government cannot subject the platforms to legal, regulatory, or economic
consequences (beyond reputational harms) if they do not comply with a given
request. See Bantam Books, 372 U.S. at 68; Okwedy, 333 F.3d at 344. The
enjoined Defendants also cannot supervise a platform’s content moderation
decisions or directly involve themselves in the decision itself. Social-media
platforms’ content-moderation decisions must be theirs and theirs alone. See
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Blum, 457 U.S. at 1008. This approach captures illicit conduct, regardless of
its form.
Because the modified injunction does not proscribe Defendants from
activities that could include legal conduct, no carveouts are needed. There
are two guiding inquiries for Defendants. First, is whether their action could
be reasonably interpreted as a threat to take, or cause to be taken, an official
action against the social-media companies if the companies decline
Defendants’ request to remove, delete, suppress, or reduce protected free
speech on their platforms. Second, is whether Defendants have exercised
active, meaningful control over the platforms’ content-moderation decisions
to such a degree that it inhibits the platforms’ independent decision-making.
To be sure, this modified injunction still “restricts government
communications not specifically targeted to particular content posted by
plaintiffs themselves,” as the officials protest. But that does not mean it is still
overbroad. To the contrary, an injunction “is not necessarily made overbroad
by extending benefit or protection to persons other than prevailing parties in
the lawsuit—even if it is not a class action—if such breadth is necessary to
give prevailing parties the relief to which they are entitled.” Pro. Ass’n of Coll.
Educators, TSTA/NEA v. El Paso Cnty. Cmty. Coll. Dist., 730 F.2d 258, 274
(5th Cir. 1984) (citations omitted); see also Bresgal v. Brock, 843 F.2d 1163,
1170–71 (9th Cir. 1987). Such breadth is plainly necessary, if not inevitable,
here. 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 harms that radiate from such
conduct extend far beyond just the Plaintiffs; it impacts every social-media
user. Naturally, then, an injunction against such conduct will afford
protections that extend beyond just Plaintiffs, too. Cf. Feds for Med. Freedom
v. Biden, 63 F.4th 366, 387 (5th Cir. 2023) (“[A]n injunction [can] benefit
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non-parties as long as that benefit [is] merely incidental.” (internal quotation
marks and citation omitted)).
As explained in Part IV above, the district court erred in finding that
the NIAID Officials and State Department Officials likely violated Plaintiffs’
First Amendment rights. So, we exclude those parties from the injunction.
Accordingly, the term “Defendants” as used in this modified provision is
defined to mean only the following entities and officials included in the
original injunction:
The following members of the Executive Office of the
President of the United States: White House Press Secretary,
Karine Jean-Pierre; Counsel to the President, Stuart F. Delery;
White House Partnerships Manager, Aisha Shah; Special
Assistant to the President, Sarah Beran; Administrator of the
United States Digital Service within the Office of Management
and Budget, Mina Hsiang; White House National Climate
Advisor, Ali Zaidi; White House Senior COVID-19 Advisor,
formerly Andrew Slavitt; Deputy Assistant to the President
and Director of Digital Strategy, formerly Rob Flaherty; White
House COVID-19 Director of Strategic Communications and
Engagement, Dori Salcido; White House Digital Director for
the COVID-19 Response Team, formerly Clarke Humphrey;
Deputy Director of Strategic Communications and
Engagement of the White House COVID-19 Response Team,
formerly Benjamin Wakana; Deputy Director for Strategic
Communications and External Engagement for the White
House COVID-19 Response Team, formerly Subhan Cheema;
White House COVID-19 Supply Coordinator, formerly
Timothy W. Manning; and Chief Medical Advisor to the
President, Dr. Hugh Auchincloss, along with their directors,
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administrators and employees. Surgeon General Vivek H.
Murthy; and Chief Engagement Officer for the Surgeon
General, Katharine Dealy, along with their directors,
administrators and employees. The Centers for Disease
Control and Prevention (“CDC”), and specifically the
following employees: Carol Y. Crawford, Chief of the Digital
Media Branch of the CDC Division of Public Affairs; Jay
Dempsey, Social-media Team Leader, Digital Media Branch,
CDC Division of Public Affairs; and Kate Galatas, CDC
Deputy Communications Director. The Federal Bureau of
Investigation (“FBI”), and specifically the following
employees: Laura Dehmlow, Section Chief, FBI Foreign
Influence Task Force; and Elvis M. Chan, Supervisory Special
Agent of Squad CY-1 in the FBI San Francisco Division. And
the Cybersecurity and Infrastructure Security Agency
(“CISA”), and specifically the following employees: Jen
Easterly, Director of CISA; Kim Wyman, Senior
Cybersecurity Advisor and Senior Election Security Leader;
and Lauren Protentis, Geoffrey Hale, Allison Snell, and Brian
Scully.
VII.
The district court’s judgment is AFFIRMED with respect to the
White House, the Surgeon General, the CDC, the FBI, and CISA and
REVERSED as to all other officials. The preliminary injunction is
VACATED except for prohibition number six, which is MODIFIED as
set forth herein. The preliminary injunction is STAYED for ten days
following the date hereof. The Clerk is DIRECTED to issue the mandate
forthwith.
74