5th Circuit softens limits on Biden admin contact with social media platforms

A federal appeals court on Friday significantly eased a lower court order restricting the Biden administration’s communications with social media companies about controversial content about COVID-19 and other issues.

The 5th U.S. Circuit Court of Appeals in New Orleans said Friday that the White House, the Surgeon General, the Centers for Disease Control and the FBI cannot “force” social media platforms to take down posts the government doesn’t like.

But the court threw out broader language in an order issued by a Louisiana-based federal judge on July 4 that effectively blocked several government agencies from contacting platforms like Facebook and X (formerly Twitter) to call for content removal.

But the appeals court’s muted ruling does not take effect immediately. The Biden administration has 10 days to request a Supreme Court review.

Friday night’s ruling came in a lawsuit filed in northeast Louisiana that accused administration officials of forcing platforms to remove content under the threat of possible antitrust actions or changes to federal law that protect them from lawsuits over their users’ posts .

COVID-19 vaccines, the FBI’s handling of a laptop computer belonging to President Joe Biden’s son, Hunter, and allegations of election fraud were among the topics highlighted in the lawsuit, which accused the administration of using threats of regulatory action to suppress conservative views.

The states of Missouri and Louisiana filed the suit along with a conservative website owner and four people opposed to the administration’s COVID-19 policy.

In a post on X, Louisiana Attorney General Jeff Landry called Friday’s decision “a major victory against censorship.”

In an unsigned 75-page opinion, three 5th Circuit judges agreed with the plaintiffs that the administration was “running afoul of the First Amendment” by sometimes threatening social media platforms with antitrust measures or changes to the law that shield them from liability.

But the court struck down much of U.S. District Judge Terry Doughty’s broad ruling on July 4, saying that a mere call to remove content does not always cross a constitutional line.

“As an outset, it is axiomatic that an injunction is overbroad if it enjoins a defendant from engaging in legal conduct. Nine of the ten prohibitions of the preliminary injunction risk doing just that. Furthermore, many of the provisions are copies of each other and thus unnecessary,” was Friday’s decision.

The ruling also removed some agencies from the order: the National Institute of Allergy and Infectious Diseases, the Cybersecurity and Infrastructure Agency and the State Department.

The case was heard by Judges Jennifer Walker Elrod and Edith Brown Clement, nominated to the court by former President George W. Bush; and Don Willett, nominated by former President Donald Trump. Doughty was nominated to the federal bench by Trump.

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