5th Circuit Affirms Social Media Injunction vs. White House, Vacates, Reverses Other Parts

U.S. District Judge Terry Doughty for Western Louisiana didn’t err in determining that officials from the White House, the Surgeon General, the Centers for Disease Control and Prevention and the FBI “likely coerced or significantly encouraged social-media platforms to moderate content, rendering those decisions state actions,” in potential violation of the First Amendment, said the 5th U.S. Circuit Court of Appeals in a late-Friday opinion (docket 23-30445).

The 5th Circuit affirmed Doughty’s injunction on those officials, but reversed it, for lack of sufficient evidence of coercion, for officials from the National Institute of Allergy and Infectious Diseases, the Cybersecurity and Infrastructure Security Agency and the State Department.

The 5th Circuit agreed with the government that Doughty’s injunction was overbroad and vague. It stripped the injunction of nine of its 10 prohibitions, leaving only prohibition six, with modifications. That prohibition, as rewritten, bars the government from coercing or significantly encouraging social-media companies “to remove, delete, suppress, or reduce” content containing protected free speech. It also deleted Doughty’s eight carveouts for permitted government conduct, finding that they didn’t solve the injunction’s “clarity and scope problems.”

The 5th Circuit denied as moot the government’s motion for a stay pending appeal. But it granted the government’s request to extend the administrative stay for 10 days, to Sept. 18, pending an application to the U.S. Supreme Court.