Appeals court rules government likely violated First Amendment in vaccine misinformation campaign

A U.S. appeals court on Friday ruled several government entities including the White House, the FBI, the Surgeon General and the Centers for Disease Control and Prevention likely violated the First Amendment by pressuring social media companies to moderate their content on misinformation surrounding vaccines.

In a decision issued Friday evening, the Fifth Circuit Court of Appeals said government actors “likely coerced or encouraged” social media companies to moderate their content, affirming a decision by a lower court with respect to the White House, the FBI, the CDC and the Surgeon General. The three judges issuing the decision were all appointed by Republicans.

The decision represents a significant win for conservatives who have long argued the government has gone too far in pressuring social media companies to make content decisions in lockstep with government opinion.

At the same time, the court largely vacated an injunction by a lower court that prohibited the government from contacting social media companies about their content, ruling the previous injunction was both too broad and vague.

It issued a modified injunction that prohibits parts of the government from coercing or significantly encouraging a social media platform’s content moderation decisions. It said this conduct would include threats of adverse consequences, even if those threats were not verbalized or did not materialize, “so long as a reasonable person would construe a government’s message as alluding to some form of punishment.”

The decision also said the government could not “supervise a platform’s content moderation decisions or directly involve themselves in the decision itself.”

The White House in a statement said the Department of Justice was reviewing the decision and its options going forward.

“This Administration has promoted responsible actions to protect public health, safety, and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections,” the statement said. “Our consistent view remains that social media platforms have a critical responsibility to take account of the effects their platforms are having on the American people, but make independent choices about the information they present.”

The pressure mentioned in the decision largely took place in 2021, as the Biden administrations sought to convince the public to take vaccines as protection from the coronavirus pandemic.

In striking language, the decision harshly criticized the campaign by the government to pressure social media companies to moderate their content on vaccines, writing that it did not take its decision lightly and that “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.”

It said the earlier court was right it its assessment that “unrelenting pressure” of certain government officials likely “had the intended result of suppressing millions of protected free speech postings by American citizens.”

It also agreed that the plaintiffs in the case had shown they were likely to have suffered an irreparable injury from the campaign, and that they were likely to suffer a future injury without an injunction.

In upholding the modified injunction, the court said that while officials “have an interest in engaging with social media companies including on issues such as misinformation and election interference,” it is “not permitted to advance these interests to the extent that it engages in viewpoint suppression.”

The decision emphasized that it was limited and that it was not upholding the injunction on all officials. While the court ruled the White House, FBI, CDC and Surgeon General had likely violated the First Amendment, it ruled other government entities including the State Department had not.

Moving forward, the new injunction would cover a host of officials in the executive office of the president, spelled out specifically by the court.

In discussing the pressure campaign, the decision said frustration in the administration over vaccine misinformation reached a boiling point at a press conference in July 2021.

It noted that the Surgeon General at that press conference described social media platforms as being “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” and 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 next day, President Biden said the platforms were “killing people” by not acting on misinformation.

The court said the social media companies in the face of this pressure acted “with total compliance,” writing that they “capitulated to the officials’ allegations.”

The attorneys general of Louisiana and Missouri filed a lawsuit against Biden and other administration officials in May for “allegedly working” with social media companies — including Meta, Twitter and YouTube — to censor and suppress free speech on topics such as COVID-19 and election integrity.

Republicans on the House Judiciary Committee are requesting documents that include communications between the Biden administration and social media companies as part of the panel’s investigation into what the GOP says were efforts to “suppress free speech and censor content online.”

Brett Samuels contributed.