If you only read media coverage of yesterday’s 74-page per curiam opinion from the Fifth Circuit Court of Appeals in Missouri v. Biden, upholding a lower court ruling that the White House, FBI, and other federal officials violated the First Amendment by coercing and “significantly encouraging” social media companies to censor social media postings that didn’t match the federal officials’ views, you probably think that the Fifth Circuit “threw out nine of [the District Court’s rulings] and modified the 10th to limit it”. That is true, but misleading. Yes, the Fifth Circuit rewrote the language of the injunction to limit it to certain federal officials and to be more specific and clear about what was being enjoined. But that’s not all, or even the important part, of the decision.

In reality, the Fifth Circuit panel not only upheld the basic claim of a vast, organized federal effort to censor the speech of millions of Americans, but gave the Supreme Court and practitioners a very clear lesson on how to evaluate pending challenges to government censorship such as the Petition for Certiorari pending in NRA v. Vullo, No. 22-842, a review request which the Supreme Court will consider granting at its end-of-summer Big Conference on Sept. 26. This was a slam-dunk win for Missouri and the other plaintiffs, and a specific, full-throated denunciation of the federal officials’ actions:

“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.” Slip opinion, at 61. And, “the district court was correct in its assessment—“unrelenting pressure” from certain government officials likely “had the intended result of suppressing millions of protected free speech postings by American citizens.” Slip op., at 62.

In most cases, it’s often more efficient to read a well-written constitutional rights decision from back to front; so here as well. Some excerpts:

There are two guiding inquiries for Defendants. First, is whether their action could be reasonably interpreted as a threat to take, or cause to be taken, an official action against the social-media companies if the companies decline Defendants’ request to remove, delete, suppress, or reduce protected free speech on their platforms. Second, is whether Defendants have exercised active, meaningful control over the platforms’ content-moderation decisions to such a degree that it inhibits the platforms’ independent decision-making.

Slip op., at 71. 

Under the modified injunction, the enjoined Defendants cannot coerce or significantly encourage a platform’s content-moderation decisions. Such conduct includes threats of adverse consequences—even if those threats are not verbalized and never materialize—so long as a reasonable person would construe a government’s message as alluding to some form of punishment. That, of course, is informed by context (e.g., persistent pressure, perceived or actual ability to make good on a threat). The government cannot subject the platforms to legal, regulatory, or economic consequences (beyond reputational harms) if they do not comply with a given request. See Bantam Books, 372 U.S. at 68; Okwedy, 333 F.3d at 344. The enjoined Defendants also cannot supervise a platform’s content moderation decisions or directly involve themselves in the decision itself. Social-media platforms’ content-moderation decisions must be theirs and theirs alone. See Blum, 457 U.S. at 1008. This approach captures illicit conduct, regardless of its form.

Id., (emphasis added). 

[T]he government is not permitted to use the government-speech doctrine to “silence or muffle the expression of disfavored viewpoints.” Matal, 582 U.S. at 235. It is true that the officials have an interest in engaging with social media companies, including on issues such as misinformation and election interference. But the government is not permitted to advance these interests to the extent that it engages in viewpoint suppression. 

Id., at 64 (emphasis added). 

[W]e emphasize the limited reach of our decision today. We do not uphold the injunction against all the officials named in the complaint. Indeed, many of those officials were permissibly exercising government speech, “carrying out [their] responsibilities,” or merely “engaging in [a] legitimate [] action.” Vullo, 49 F.4th at 718–19. That distinction is important because the state-action doctrine is vitally important to our Nation’s operation—by distinguishing between the state and the People, it promotes “a robust sphere of individual liberty.” Halleck, 139 S. Ct. at 1928. That is why the Supreme Court has been reluctant to expand the scope of the doctrine. See Matal v. Tam, 582 U.S. 218, 235 (2017) (“[W]e must exercise great caution before extending our government-speech precedents.”). If just any relationship with the government “sufficed to transform a private entity into a state actor, a large swath of private entities in America would suddenly be turned into state actors and be subject to a variety of constitutional constraints on their activities.” Halleck, 139 S. Ct. at 1932. So, we do not take our decision today lightly. But, 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. Therefore, the district court was correct in its assessment—“unrelenting pressure” from certain government officials likely “had the intended result of suppressing millions of protected free speech postings by American citizens.” We see no error or abuse of discretion in that finding.

Id., at 61-62 (emphasis added). 

Given all of the above, we are left only with the conclusion that the officials’ statements were coercive. That conclusion tracks with the decisions of other courts. After reviewing the four-factor test, it is apparent that the officials’ messages could “reasonably be construed” as threats. Warren, 66 F.4th at 1208; Vullo, 49 F.4th at 716. Here, unlike in Warren, the officials’ “call[s] to action”—given the context and officials’ tone, the presence of some authority, the platforms’ yielding responses, and the officials’ express and implied references to adverse consequences—“directly suggest[ed] that compliance was the only realistic option to avoid government sanction.” 66 F.4th at 1208. And, unlike O’Handley, the officials were not simply flagging posts with “no strings attached,” 62 F.4th at 1158—they did much, much more.

Id., at 51 (emphases added). 

The opinion is powerfully-written, clear and concise; it’s very long only because any consideration balancing the newly-expanded government speech doctrine against the rights of the targets of that speech is complicated, especially on expedited consideration of an injunction. The opinion clarifies and unifies recent judicial opinions reviewing whether a government can do indirectly what the First Amendment prevents it from doing directly (the actual question in Vullo) and brings together several of the most recent cases involving censorship efforts by federal and state officials in a way that outlines the key decisions for courts to consider. See, the two-step test from Slip op., P. 71,above. 

For example, it helps to remember that most observers now realize that the Federal Election Commission lost the Citizens United case when the federal government asserted that it had the right to ban books, even though then-U.S. Solicitor General (now Justice) Elena Kagan tried to walk back the claim during the March 24, 2009, second oral arguments the Court ordered after the book-banning claim was uttered. In summarizing the case in Missouri v. Biden, the Fifth Circuit opinion said: 

Like in Bantam Books, the officials here set about to force the platforms to remove metaphorical books from their shelves. It is uncontested that, between the White House and the Surgeon General’s office, government officials asked the platforms to remove undesirable posts and users from their platforms, sent follow-up messages of condemnation when they did not, and publicly called on the platforms to act. When the officials’ demands were not met, the platforms received promises of legal regime changes, enforcement actions, and other unspoken threats. That was likely coercive. See Warren, 66 F.4th at 1211–12.

Slip op., at 43-44. 

This is not the end of the line for Missouri v. Biden. The Department of Justice, faced with humiliating repudiation of its earlier positions, is very likely to want to push the case to the Supreme Court. But this is just an early procedural decision on an injunction, not a decision after the parties’ evidence and legal theories have been tested in a full trial. Such a trial would likely be long and complicated, but the legal expertise from the parties and their supporting amici is formidable and would likely raise many sophisticated questions; the number of pages and other evidence filed in the case already numbers in the tens of thousands. The question is whether the Supreme Court is willing to take up this case on the so-called “shadow docket” of expedited consideration before a full trial, especially since it could look at the exact same question with a full evidentiary record in Vullo; we will likely find out that answer on September 26 when the Supreme Court decides or possibly before if the Department of Justice asks the Court for expedited review. 

Either way, the federal officials involved face the court of public opinion after an extensive review by two courts has resulted in not one, but two official verdicts of violating the First Amendment rights of “millions of protected free speech postings by American citizens.”

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