What was behind the Fifth Circuit’s sudden reversal on social media censorship? 

Just when the U.S. Supreme Court was ready on Sept. 27 to jump into the politically polarizing battle over whether federal officials unlawfully coerced social-media platforms to remove conservative-tilting views and alleged misinformation about mask mandates, vaccines and election interference, the U.S. Court of Appeals for the Fifth Circuit made a procedural hash out of Missouri v. Biden. Its bungling, via “unusual orders” on Sept. 25 and 26, pointlessly postpones Supreme Court resolution of the merits of this high-profile First Amendment dispute. 

Specifically, the Supreme Court should settle three issues — two doctrinal, one factual.  

The doctrinal questions are: (1) What rule applies for determining when acts of censorship taken by private businesses — here, removal of users and their content by social-media companies — should be treated as acts of government censorship, thereby triggering the First Amendment; and (2) What factors, variables and pieces of evidence should courts weigh when applying that rule?  

The factual issue is whether, applying that rule and examining those factors, the words allegedly directed at social-media companies by the defendants about removing content and users transformed any resulting censorship into government action (that is, state action).  

Stepping back, Missouri v. Biden (called Murthy v. Missouri in the Supreme Court) fundamentally involves competing free-speech interests: those of government officials and those of people holding views the officials disagree with.  

Regarding the former, the case implicates the executive branch’s ability, plus that of other federal departments, agencies and officials, to informally implement their desired policy objectives and positions — not through statutes, but through verbal persuasion and jawboning.

As U.S. Solicitor General Elizabeth Barchas Prelogar asserted in a Sept. 14 filing with the Supreme Court, “[a] central dimension of presidential power is the use of the Office’s bully pulpit to seek to persuade Americans––and American companies––to act in ways that the President believes would advance the public interest.” Here, that means convincing platforms to remove allegedly dangerous viewpoints. 

The competing free-speech interest, as plaintiffs Missouri, Louisiana and three individuals contend in a Sept. 20 filing with the Supreme Court, is the First Amendment right of citizens to engage in “core political speech” and express, free from government censorship, “disfavored viewpoints on some of the greatest debates of our time.”

Here, the plaintiffs add a third set of free-speech interests to the mix: those of listeners and social-media users to receive others’ dissenting viewpoints. As the Supreme Court concluded in 1969, “[i]t is … well established that the Constitution protects the right to receive information and ideas.” 

This circles back to the initial question for high-court resolution: What’s the rule for determining when acts of private censorship actually are attributable to the government?  

The Supreme Court concluded in 1982 that the government “normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice [to censor] must in law be deemed to be that of the” government (emphasis added). The Fifth Circuit borrowed facets of that language on Sept. 8.  

That’s when, in modifying a trial court’s July 4 sweeping preliminary injunction against the government, it ordered multiple White House, surgeon general, CDC and FBI employees not to “coerce or significantly encourage a platform’s content-moderation decisions.” The appellate court reasoned the officials had “engaged in a broad pressure campaign designed to coerce social-media companies into suppressing speakers, viewpoints, and content disfavored by the government.”  

The government, in a Sept. 21 filing with the Supreme Court, criticized the Fifth Circuit’s “loose” and “expansive understanding of the sort of ‘coercion’ and ‘significant encouragement’ that transform private conduct into government action.” In short, the Fifth Circuit dropped in some buzzwords but failed to rigorously apply them. 

So what policy concerns should influence where the court draws the line between permissible persuasion and unlawful concern?  

Two key problems with affording jawboning wide berth are its lack of public transparency and the absence of procedural guardrails. As Professor Derek Bambauer at the University of Florida Levin College of Law explains in a 2015 article, “[p]rivate bargains over information take place under circumstances lacking not only judicial review, but also the constraints and trade-offs of the legislative or administrative rulemaking processes.” He adds that “pressures often begin (and sometimes remain) behind closed doors.” The plaintiffs track this in their Sept. 20 filing with the high court, stressing that the “government imposes its suppression wholesale, often surreptitiously.”  

Sweepingly defining coercive speech, however, might deter well-intentioned efforts by government officials to communicate legitimate concerns about matters like national security with private business. That’s why the Supreme Court should articulate clear factors courts can use when deciding if private acts of censorship are attributable to the government.  

Requiring an explicit threat of retaliation against a private company if it doesn’t heed the government’s advice would constitute a clear-cut rule. But government officials likely would dance around it via verbal gymnastics, avoiding phrases like “If you don’t censor this, then . . .” Implicit threats on private companies thus sometimes should trigger the First Amendment; the difficulty is articulating when.  

Returning to the Fifth Circuit’s bungling, Justice Samuel Alito, who handles emergency appeals from that court, on Sept. 22 granted the government’s request to stay the injunction’s enforcement through Sept. 27. The government also invited the Supreme Court to construe its stay request as a petition for a writ of certiorari to hear the case’s merits. Murthy thus was in the high court’s hands — fully briefed and presumably reviewed by Justice Alito — with hope for a ruling of some kind on Sept. 27. 

But that didn’t happen. The day before, the Fifth Circuit recalled its earlier mandate divesting itself of jurisdiction in the case. It agreed to consider the plaintiffs’ request to rehear the case and expand its Sept. 8 injunction to cover more officials. In sum, the Fifth Circuit snatched the case back, pointlessly delaying Supreme Court review and likely wasting Justice Alito’s time spent reviewing the government’s petition and other briefs.  

Clay Calvert is nonresident senior fellow at the American Enterprise Institute and professor emeritus at the University of Florida in Gainesville. Specializing in First Amendment and media law, Calvert has published more than 150 law journal articles on topics affecting free expression, and he is lead author of Mass Media Law (22nd ed. 2023, McGraw Hill).