Federal Appellate Court Finds The White House, FBI and the Surgeon General’s Office Coerced Social Media Companies To Censor Americans’ Speech

The Fifth Circuit recently held that various officials in the White House, FBI, Surgeon General’s Office and CDC engaged in an extensive and ongoing effort to censor speech on social media platforms. The Fifth Circuit described these efforts as a “coordinated campaign” of unprecedented magnitude that “jeopardized a fundamental aspect of American life,” and that it had the “intended result of suppressing millions of protected free speech postings by American citizens.” The Fifth Circuit then issued an injunction against a large number of federal officials, prohibiting them 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.” To call this decision and the injunction unprecedented would understate its importance. The Fifth Circuit’s decision shows a wide-ranging effort by some of the most powerful political, law enforcement and health organizations in the country working to suppress dissenting viewpoints on a massive scale. The scope of these censorship efforts, the number of people involved and the resources devoted to censoring disfavored viewpoints is a sentinel event; it shows that the political system has lost its mooring in our constitutional traditions. Vigorous protection of First Amendment rights is sorely needed, as is legislation and Congressional oversight so that such wholesale trampling on First Amendment rights cannot happen again.

Social media promised an open and public forum in which individuals, political parties, news organizations and government agencies could express and promote their views. In order to make an open environment possible on social media platforms, Congress gave social media companies broad immunity from liability for comments users made on their platforms. The concept underlying this grant of immunity was that social media platforms were not controlling and editing the content on their platforms like traditional news outlets. Indeed, forcing social media companies to perform the same type of editing and content control as traditional media outlets would destroy the very concept of a social media platform.

The freedom of speech initially promised by social media platforms was stunning, but the reality quickly changed. Appropriately, social media platforms prohibited pornography and criminal conduct from their platforms. There is an old legal saying—hard cases make bad law. In the context of social media platforms, instances of truly outrageous and harmful comments led social media companies to expand their “content moderation” policies to exclude individuals posting comments that the majority of people would view as vile and unacceptable. If the social media platforms had limited their content moderation policies to fringe views and clearly false and defamatory statements, complaints about the impact of content moderation policies on free speech would have probably remained muted. That is not how things developed.

The definition of “extreme” or “hateful” speech continued to expand, and the long slide down the slippery slope of “content moderation” (also known as censorship) began. Content moderation policies continued to expand in scope while also becoming unclear. It became apparent that what constituted a “hateful” or a “fringe” view was continuing to expand while silencing an ever-increasing range of opinions. These developments created an opening for the federal government to create what is arguably the largest censorship effort ever implemented in the United States.

The First Amendment does not limit the ability of social media platforms to censor speech on their platforms. Indeed, private companies have their own First Amendment rights, which limit the ability of the government to control what private companies choose to publish. A private company’s actions, however, can become “state action” that is subject to the First Amendment under certain conditions. The Fifth Circuit found that the White House, Surgeon General’s Office, FBI and CDC violated the First Amendment rights of countless Americans when they turned those private companies into state actors by having social media companies ramp up a massive censorship effort.

The Fifth Circuit’s discussion of the evidence is chilling to anyone concerned about the erosion of First Amendment rights. The Court stated that the plaintiffs presented “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 Court held that 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, social-media platforms did, and would continue to, bend to the government’s will.”

With respect to the White House’s censorship efforts, the Fifth Circuit found 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 process, both in violation of the First Amendment.” The Court stated that on “multiple occasions, the officials coerced the platforms into direct action via urgent, uncompromising demands to moderate content,” and that “officials were persistent and angry.”  The Fifth Circuit found that “officials made express threats and, at the very least, leaned into the inherent authority of the President’s office. . . . beyond express threats, there was always an ‘unspoken or else.’”

The White House’s actions to suppress disfavored viewpoints in the last three years is unprecedented in the modern era. Woodrow Wilson used federal law to silence critics of US involvement in World War I. Those efforts, however, occurred more than 100 years ago. Further, the Supreme Court has clearly and unambiguously concluded since the 1950s that such conduct is unconstitutional. Woodrow Wilson could at least claim that First Amendment jurisprudence at that time was not nearly as robust as it is now. The current White House cannot claim that such uncertainty exists. The White House’s disregarding clearly established First Amendment rights is a warning that our constitutional protections are in need of constant protection.

The significant involvement of the FBI in the federal government’s censorship efforts is even more troubling. The FBI is America’s premier law enforcement agency, and can wield significant coercive power. The FBI had extensive contact with social media platforms, and was very successful in getting social media posts silenced. The Fifth Circuit found that the FBI’s authority and the extent of its requests made its conduct clearly coercive and violative of the First Amendment. At a deeper level, the question becomes why in the first place was the FBI even targeting social media posts by Americans. If the FBI believed some individuals were using social media posts to conduct criminal acts, it had the ability to monitor those posts and take appropriate actions. The FBI, a law enforcement agency, has no business asking social media platforms to silence viewpoints the FBI does not like.

It is deeply disturbing that the White House and Department of Justice decided to encourage or, at a minimum, turn a blind eye to the FBI’s massive violations of the First Amendment. The ability of law enforcement to violate constitutional rights is an ever-present problem, given the very nature of the law enforcement process. It is extremely dangerous to civil liberties that the FBI was allowed to violate the constitutional rights of Americans on such a massive and sustained basis. Permitting the FBI to violate First Amendment rights on such a scale, can create a culture within the FBI that does not take constitutional rights seriously. This is not sustainable in a constitutional democracy.

The Fifth Circuit concluded its decision by modifying the District Court’s injunction against further violations of the First Amendment by the federal government. The problems surrounding the injunction show just how difficult it is for courts to protect First Amendment rights from infringement by powerful executive agencies that are determined to silence dissenting viewpoints. The injunction entered by the Fifth Circuit is, nonetheless, an important step in protecting the First Amendment rights of millions of Americans.

The terms of the injunction and the Fifth Circuit’s discussion show the significant limits on a court’s ability to prevent the executive branch of the federal government from infringing First Amendment rights. The Fifth Circuit recognized that the White House, Surgeon General’s office, FBI and CDC need to have contact with social media platforms on a number of different issues. The difficulties the district court and Fifth Circuit encountered when crafting an appropriate injunction show that addressing censorship efforts by the federal government will have to be multi-dimensional. For example, if social media companies become “state actors,” it is possible that they will face civil liability for the censorship efforts demanded by the federal government. While this may seem unfair, such liability may be an effective way to force social media companies to reject censorship demands by the federal government. Such liability may also force social media companies to demand more political oversight by Congress or new legislation that will prevent such massive censorship in the future.