FBI and White House likely coerced social media platforms into removing posts, appeals court rules

FAN Editor

US President Joe Biden speaks about the government response and recovery efforts in Maui, Hawaii, and the ongoing response on Hurricane Idalia in the Roosevelt Room of the White House in Washington, DC, on August 30, 2023.

Saul Loeb | AFP | Getty Images

A federal appeals court on Friday limited the scope of a district court ruling that sought to limit communications between government agencies and social media companies, while finding that several agencies likely violated the First Amendment.

The ruling will make it easier for several federal agencies to communicate with social media companies like Meta, Google and X, previously known as Twitter, as many do to flag concerns they see on the platforms. Still, officials that remain subject to the modified injunction, including those in the White House, must remain careful that their discussions with the platforms may not be construed as coercive.

The original case was brought by the attorneys general of Missouri and Louisiana, who alleged that federal officials unduly pressured social media firms to limit speech on their services, as they communicated concerns about posts related to the Covid pandemic or elections. Terry A. Doughty, a Donald Trump-appointed chief judge for the Western District of Louisiana, issued an injunction in July that would significantly restrict these kinds of discussions, though he made exceptions for federal officials to warn about national security risks or criminal activity.

The decision had an immediate impact. Following the district court’s order in July, the State Department canceled its standing meeting with Facebook officials about the election prep, The Washington Post reported.

But the three-judge appeals panel determined that injunction was too broad, narrowing the federal offices and agencies it could apply to and limiting it in scope. At the same time, the appeals court concluded that the White House, Surgeon General’s office and Federal Bureau of Investigation likely violated the First Amendment by coercing social media platforms into moderating posts on their sites. It also said the Centers for Disease Control and Prevention likely violated the First Amendment, though its actions were “not plainly coercive.”

The appeals court decision means that some federal agencies — the State Department, Cybersecurity and Infrastructure Security Agency and National Institute of Allergy and Infectious Diseases — will not be subject to the injunction. But the offices found to have likely violated the First Amendment will still be subject to a more limited version of the order.

The appeals court vacated all but one of ten prohibitions Doughty set out in the initial injunction. The one that remained is now modified to “to exclusively target illegal conduct and provide the officials with additional guidance or instruction on what behavior is prohibited.” That’s intended to prevent the action from capturing “otherwise legal speech.”

According to the appeals court’s modification, the agencies still subject to the injunction are forbidden from taking 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.”

The White House, Surgeon General’s office, FBI and CDC did not immediately respond to requests for comment.

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