Court of Appeals for the Fifth Circuit Cases

State of Missouri v. Biden

83 F.4th 350 • 2023-10-03

Citation83 F.4th 350

Date Filed2023-10-03

Docket23-30445

Cited26 times

StatusPublished

Full Opinion (html_with_citations)

Case: 23-30445 Document: 00516918271 Page: 1 Date Filed: 10/03/2023

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit

____________ FILED
October 3, 2023
No. 23-30445 Lyle W. Cayce
____________ Clerk

State of Missouri; State of Louisiana; Aaron Kheriaty;
Martin Kulldorff; Jim Hoft; Jayanta Bhattacharya;
Jill Hines,

Plaintiffs—Appellees,

versus

Joseph R. Biden, Jr.; Vivek H. Murthy; Xavier Becerra;
Department of Health & Human Services; Anthony
Fauci; Et al.,

Defendants—Appellants.
______________________________

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:22-CV-1213
______________________________

ON PETITION FOR REHEARING

Before Clement, Elrod, and Willett, Circuit Judges.
Per Curiam:
The petition for panel rehearing is GRANTED. We WITHDRAW
our previous opinion and substitute the following.
* * *
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No. 23-30445

A group of social-media users and two states allege that numerous
federal officials coerced social-media platforms into censoring certain social-
media content, in violation of the First Amendment. We agree, but only as to
some of those officials. So, we AFFIRM in part, REVERSE in part,
VACATE the injunction in part, and MODIFY the injunction in part.
I.
For the last few years—at least since the 2020 presidential
transition—a group of federal officials has been in regular contact with nearly
every major American social-media company about the spread of
“misinformation” on their platforms. In their concern, those officials—
hailing from the White House, the CDC, the FBI, and a few other agencies—
urged the platforms to remove disfavored content and accounts from their
sites. And, the platforms seemingly complied. They gave the officials access
to an expedited reporting system, downgraded or removed flagged posts, and
deplatformed users. The platforms also changed their internal policies to
capture more flagged content and sent steady reports on their moderation
activities to the officials. That went on through the COVID-19 pandemic, the
2022 congressional election, and continues to this day.
Enter this lawsuit. The Plaintiffs—three doctors, a news website, a
healthcare activist, and two states 1—had posts and stories removed or

_____________________
1
Specifically, the Plaintiffs are (1) Jayanta Bhattacharya and Martin Kulldorff, two
epidemiologists who co-wrote the Great Barrington Declaration, an article criticizing
COVID-19 lockdowns; (2) Jill Hines, an activist who spearheaded “Reopen Louisiana”;
(3) Aaron Kheriaty, a psychiatrist who opposed lockdowns and vaccine mandates; (4) Jim
Hoft, the owner of the Gateway Pundit, a once-deplatformed news site; and (5) Missouri
and Louisiana, who assert their sovereign and quasi-sovereign interests in protecting their
citizens and the free flow of information. Bhattacharya, Kulldorff, Hines, Kheriaty, and
Hoft, collectively, are referred to herein as the “Individual Plaintiffs.” Missouri and
Louisiana, together, are referred to as the “State Plaintiffs.”

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downgraded by the platforms. Their content touched on a host of divisive
topics like the COVID-19 lab-leak theory, pandemic lockdowns, vaccine side-
effects, election fraud, and the Hunter Biden laptop story. The Plaintiffs
maintain that although the platforms stifled their speech, the government
officials were the ones pulling the strings—they “coerced, threatened, and
pressured [the] social-media platforms to censor [them]” through private
communications and legal threats. So, they sued the officials 2 for First
Amendment violations and asked the district court to enjoin the officials’
conduct. In response, the officials argued that they only “sought to mitigate
the hazards of online misinformation” by “calling attention to content” that
violated the “platforms’ policies,” a form of permissible government speech.
The district court agreed with the Plaintiffs and granted preliminary
injunctive relief. In reaching that decision, it reviewed the conduct of several
federal offices, but only enjoined the White House, the Surgeon General, the
CDC, the FBI, the National Institute of Allergy and Infectious Diseases
(NIAID), the Cybersecurity and Infrastructure Security Agency (CISA), and

_____________________
2
The defendant-officials include (1) the President; (2) his Press Secretary; (3) the
Surgeon General; (4) the Department of Health and Human Services; (5) the HHS’s
Director; (6) Anthony Fauci in his capacity as the Director of the National Institute of
Allergy and Infectious Diseases; (7) the NIAID; (8) the Centers for Disease Control; (9)
the CDC’s Digital Media Chief; (10) the Census Bureau; (11) the Senior Advisor for
Communications at the Census Bureau; (12) the Department of Commerce; (13) the
Secretary of the Department of Homeland Security; (14) the Senior Counselor to the
Secretary of the DHS; (15) the DHS; (16) the Cybersecurity and Infrastructure Security
Agency; (17) the Director of CISA; (18) the Department of Justice; (19) the Federal Bureau
of Investigation; (20) a special agent of the FBI; (21) a section chief of the FBI; (22) the
Food and Drug Administration; (23) the Director of Social Media at the FDA; (24) the
Department of State; (25) the Department of Treasury; (26) the Department of
Commerce; and (27) the Election Assistance Commission. The Plaintiffs also sued a host
of various advisors, officials, and deputies in the White House, the FDA, the CDC, the
Census Bureau, the HHS, and CISA. Note that some of these officials were not enjoined
and, therefore, are not mentioned again in this opinion.

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the Department of State. We briefly review—per the district court’s order
and the record—those officials’ conduct.
A.
Considering their close cooperation and the ministerial ecosystem, we
take the White House and the Surgeon General’s office together. Officials
from both offices began communicating with social media companies—
including Facebook, Twitter (now known as “X”), YouTube, and Google—
in early 2021. From the outset, that came with requests to take down flagged
content. In one email, a White House official told a platform to take a post
down “ASAP,” and instructed it to “keep an eye out for tweets that fall in
this same [] genre” so that they could be removed, too. In another, an official
told a platform to “remove [an] account immediately”—he could not “stress
the degree to which this needs to be resolved immediately.” Often, those
requests for removal were met.
But, the White House officials did not only flag content. Later that
year, they started monitoring the platforms’ moderation activities, too. In
that vein, the officials asked for—and received—frequent updates from the
platforms. Those updates revealed, however, that the platforms’ policies
were not clear-cut and did not always lead to content being demoted. So, the
White House pressed the platforms. For example, one White House official
demanded more details and data on Facebook’s internal policies at least
twelve times, including to ask what was being done to curtail “dubious” or
“sensational” content, what “interventions” were being taken, what
“measurable impact” the platforms’ moderation policies had, “how much
content [was] being demoted,” and what “misinformation” was not being
downgraded. In one instance, that official lamented that flagging did not
“historically mean[] that [a post] was removed.” In another, the same official
told a platform that they had “been asking [] pretty directly, over a series of

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conversations” for “what actions [the platform has] been taking to mitigate”
vaccine hesitancy, to end the platform’s “shell game,” and that they were
“gravely concerned” the platform was “one of the top drivers of vaccine
hesitancy.” Another time, an official asked why a flagged post was “still up”
as it had “gotten pretty far.” The official queried “how does something like
that happen,” and maintained that “I don’t think our position is that you
should remove vaccine hesitant stuff,” but “slowing it down seems
reasonable.” Always, the officials asked for more data and stronger
“intervention[s].”
From the beginning, the platforms cooperated with the White House.
One company made an employee “available on a regular basis,” and another
gave the officials access to special tools like a “Partner Support Portal”
which “ensure[d]” that their requests were “prioritized automatically.”
They all attended regular meetings. But, once White House officials began to
demand more from the platforms, they seemingly stepped-up their efforts to
appease the officials. When there was confusion, the platforms would call to
“clear up” any “misunderstanding[s]” and provide data detailing their
moderation activities. When there was doubt, they met with the officials,
tried to “partner” with them, and assured them that they were actively trying
to “remove the most harmful COVID-19 misleading information.” At times,
their responses bordered on capitulation. One platform employee, when
pressed about not “level[ing]” with the White House, told an official that he
would “continue to do it to the best of [his] ability, and [he will] expect [the
official] to hold [him] accountable.” Similarly, that platform told the Surgeon
General that “[w]e’re [] committed to addressing the [] misinformation that
you’ve called on us to address.” The platforms were apparently eager to stay
in the officials’ good graces. For example, in an effort to get ahead of a
negative news story, Facebook preemptively reached out to the White House

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officials to tell them that the story “doesn’t accurately represent the problem
or the solutions we have put in place.”
The officials were often unsatisfied. They continued to press the
platforms on the topic of misinformation throughout 2021, especially when
they seemingly veered from the officials’ preferred course. When Facebook
did not take a prominent pundit’s “popular post[]” down, a White House
official asked “what good is” the reporting system, and signed off with “last
time we did this dance, it ended in an insurrection.” In another message, an
official sent Facebook a Washington Post article detailing the platform’s
alleged failures to limit misinformation with the statement “[y]ou are hiding
the ball.” A day later, a second official replied that they felt Facebook was
not “trying to solve the problem” and the White House was
“[i]nternally . . . considering our options on what to do about it.” In another
instance, an official—demanding “assurances” that a platform was taking
action—likened the platform’s alleged inaction to the 2020 election, which
it “helped increase skepticism in, and an insurrection which was plotted, in
large part, on your platform.”
To ensure that problematic content was being taken down, the
officials—via meetings and emails—pressed the platforms to change their
moderation policies. For example, one official emailed Facebook a document
recommending changes to the platform’s internal policies, including to its
deplatforming and downgrading systems, with the note that “this is
circulating around the building and informing thinking.” In another instance,
the Surgeon General asked the platforms to take part in an “all-of-society”
approach to COVID by implementing stronger misinformation
“monitoring” programs, redesigning their algorithms to “avoid amplifying
misinformation,” targeting “repeat offenders,” “[a]mplify[ing]
communications from trusted . . . experts,” and “[e]valuat[ing] the
effectiveness of internal policies.”

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The platforms apparently yielded. They not only continued to take
down content the officials flagged, and provided requested data to the White
House, but they also changed their moderation policies expressly in
accordance with the officials’ wishes. For example, one platform said it knew
its “position on [misinformation] continues to be a particular concern” for
the White House, and said it was “making a number of changes” to capture
and downgrade a “broader set” of flagged content. The platform noted that,
in line with the officials’ requests, it would “make sure that these additional
[changes] show results—the stronger demotions in particular should deliver
real impact.” Another time, a platform represented that it was going to
change its moderation policies and activities to fit with express guidance from
the CDC and other federal officials. Similarly, one platform noted that it was
taking down flagged content which seemingly was not barred under previous
iterations of its moderation policy.
Relatedly, the platforms enacted several changes that coincided with
the officials’ aims shortly after meeting with them. For example, one
platform sent out a post-meeting list of “commitments” including a policy
“change[]” “focused on reducing the virality” of anti-vaccine content even
when it “does not contain actionable misinformation.” On another occasion,
one platform listed “policy updates . . . regarding repeat misinformation”
after meeting with the Surgeon General’s office and signed off that “[w]e
think there’s considerably more we can do in partnership with you and your
teams to drive behavior.”
Even when the platforms did not expressly adopt changes, though,
they removed flagged content that did not run afoul of their policies. For
example, one email from Facebook stated that although a group of posts did
not “violate our community standards,” it “should have demoted them
before they went viral.” In another instance, Facebook recognized that a

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popular video did not qualify for removal under its policies but promised that
it was being “labeled” and “demoted” anyway after the officials flagged it.
At the same time, the platforms often boosted the officials’ activities
at their request. For example, for a vaccine “roll out,” the officials shared
“what [t]he admin’s plans are” and “what we’re seeing as the biggest
headwinds” that the platforms could help with. The platforms “welcome[d]
the opportunity” to lend a hand. Similarly, when a COVID vaccine was
halted, the White House asked a platform to—through
“hard . . . intervention[s]” and “algorithmic amplification”—“make sure
that a favorable review reaches as many people” as possible to stem the
spread of alleged misinformation. The officials also asked for labeling of posts
and a 24-hour “report-back” period to monitor the public’s response. Again,
the platforms obliged—they were “keen to amplify any messaging you want
us to project,” i.e., “the right messages.” Another time, a platform told the
White House it was “eager” to help with vaccine efforts, including by
“amplify[ing]” content. Similarly, a few months later, after the White House
shared some of the “administration’s plans” for vaccines in an industry
meeting, Facebook reiterated that it was “committed to the effort of
amplifying the rollout of [those] vaccines.”
Still, White House officials felt the platforms were not doing enough.
One told a platform that it “remain[ed] concerned” that the platform was
encouraging vaccine hesitancy, which was a “concern that is shared at the
highest (and I mean highest) levels of the [White House].” So, the official
asked for the platform’s “road map to improvement” and said it would be
“good to have from you all . . . a deeper dive on [misinformation] reduction.”
Another time, the official responded to a moderation report by flagging a
user’s account and saying it is “[h]ard to take any of this seriously when
you’re actively promoting anti-vaccine pages.” The platform subsequently
“removed” the account “entirely” from its site, detailed new changes to the

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company’s moderation policies, and told the official that “[w]e clearly still
have work to do.” The official responded that “removing bad information”
is “one of the easy, low-bar things you guys [can] do to make people like me
think you’re taking action.” The official emphasized that other platforms had
“done pretty well” at demoting non-sanctioned information, and said “I
don’t know why you guys can’t figure this out.”
The officials’ frustrations reached a boiling point in July of 2021. That
month, in a joint press conference with the Surgeon General’s office, the
White House Press Secretary said that the White House “expect[s] more”
from the platforms, including that they “consistently take action against
misinformation” and “operate with greater transparency and
accountability.” Specifically, the White House called on platforms to adopt
“proposed changes,” including limiting the reach of “misinformation,”
creating a “robust enforcement strategy,” taking “faster action” because
they were taking “too long,” and amplifying “quality information.” The
Press Secretary said that the White House “engag[es] with [the platforms]
regularly and they certainly understand what our asks are.” She also
expressly noted that several accounts, despite being flagged by the White
House, “remain active” on a few platforms.
The Surgeon General also spoke at the press conference. He said the
platforms were “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.” He 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 Surgeon General contemporaneously issued a public
advisory “calling out social media platforms” and saying they “have a role to

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play to improve [] health outcomes.” The next day, President Biden said that
the platforms were “killing people” by not acting on misinformation. Then,
a few days later, a White House official said they were “reviewing” the legal
liability of platforms—noting “the president speak[s] very aggressively
about” that—because “they should be held accountable.”
The platforms responded with total compliance. Their answer was
four-fold. First, they capitulated to the officials’ allegations. The day after
the President spoke, Facebook asked what it could do to “get back to a good
place” with the White House. It sought to “better understand . . . what the
White House expects from us on misinformation going forward.” Second,
the platforms changed their internal policies. Facebook reached out to see
“how we can be more transparent,” comply with the officials’ requests, and
“deescalate” any tension. Others fell in line, too—YouTube and Google told
an official that they were “working on [it]” and relayed the “steps they are
currently taking” to do better. A few days later, Facebook told the Surgeon
General that “[w]e hear your call for us to do more,” and wanted to “make
sure [he] saw the steps [it took]” to “adjust policies on what we are removing
with respect to misinformation,” including “expand[ing] the group of false
claims” that it removes. That included the officials’ “specific
recommendations for improvement,” and the platform “want[ed] to make
sure to keep [the Surgeon General] informed of [its] work on each.”
Third, the platforms began taking down content and deplatforming
users they had not previously targeted. For example, Facebook started
removing information posted by the “disinfo dozen”—a group of influencers
identified as problematic by the White House—despite earlier
representations that those users were not in violation of their policies. In
general, the platforms had pushed back against deplatforming users in the
past, but that changed. Facebook also made other pages that “had not yet
met their removal thresholds[] more difficult to find on our platform,” and

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promised to send updates and take more action. A month later, members of
the disinfo dozen were deplatformed across several sites. Fourth, the
platforms continued to amplify or assist the officials’ activities, such as a
vaccine “booster” campaign.
Still, the White House kept the pressure up. Officials continuously
expressed that they would keep pushing the platforms to act. And, in the
following year, the White House Press Secretary stressed that, in regard to
problematic users on the platforms, the “President has long been concerned
about the power of large” social media companies and that they “must be
held accountable for the harms they cause.” She continued that the President
“has been a strong supporter of fundamental reforms to achieve that goal,
including reforms to [S]ection 230, enacting antitrust reforms, requiring
more transparency, and more.” Per the officials, their back-and-forth with
the platforms continues to this day.
B.
Next, we turn to the CDC. Much like the White House officials, the
CDC tried to “engage on a [] regular basis” with the platforms. They also
received reports on the platforms’ moderation activities and policy updates.
And, like the other officials, the CDC also flagged content for removal that
was subsequently taken down. In one email, an official mentioned sixteen
posts and stated, “[W]e are seeing a great deal of misinfo [] that we wanted
to flag for you all.” In another email, CDC officials noted that flagged content
had been removed. And, the CDC actively sought to promote its officials’
views over others. For example, they asked “what [was] being done on the
amplification-side” of things.
Unlike the other officials, though, the CDC officials also provided
direct guidance to the platforms on the application of the platforms’ internal
policies and moderation activities. They did so in three ways. First, CDC

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officials authoritatively told the platforms what was (and was not)
misinformation. For example, in meetings—styled as “Be On the Lookout”
alerts—officials educated the platforms on “misinformation[] hot topics.”
Second, CDC officials asked for, or at least encouraged, harmonious changes
to the platforms’ moderation policies. One platform noted that “[a]s soon as
the CDC updates [us],” it would change information on its website to comply
with the officials’ views. In that same email, the platform said it was
expanding its “misinfo policies” and it was “able to make this change based
on the conversation we had last week with the CDC.” In another email, a
platform noted “several updates to our COVID-19 Misinformation and
Harm policy based on your inputs.” Third, through its guidance, the CDC
outright directed the platforms to take certain actions. In one post-meeting
email, an official said that “as mentioned on the call, any contextual
information that can be added to posts” on some alleged “disinformation”
“could be very effective.”
Ultimately, the CDC’s guidance informed, if not directly affected, the
platforms’ moderation decisions. The platforms sought answers from the
officials as to whether certain controversial claims were “true or false” and
whether related posts should be taken down as misleading. The CDC officials
obliged, directing the platforms as to what was or was not misinformation.
Such designations directly controlled the platforms’ decision-making
process for the removal of content. One platform noted that “[t]here are
several claims that we will be able to remove as soon as the CDC debunks
them; until then, we are unable to remove them.”
C.
Next, we consider the conduct of the FBI officials. The agency’s
officials regularly met with the platforms at least since the 2020 election. In
these meetings, the FBI shared “strategic information with [] social-media

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companies” to alert them to misinformation trends in the lead-up to federal
elections. For example, right before the 2022 congressional election, the FBI
tipped the platforms off to “hack and dump” operations from “state-
sponsored actors” that would spread misinformation through their sites. In
another instance, they alerted the platforms to the activities and locations of
“Russian troll farms.” The FBI apparently acquired this information from
ongoing investigations.
Per their operations, the FBI monitored the platforms’ moderation
policies, and asked for detailed assessments during their regular meetings.
The platforms apparently changed their moderation policies in response to
the FBI’s debriefs. For example, some platforms changed their “terms of
service” to be able to tackle content that was tied to hacking operations.
But, the FBI’s activities were not limited to purely foreign threats. In
the build up to federal elections, the FBI set up “command” posts that would
flag concerning content and relay developments to the platforms. In those
operations, the officials also targeted domestically sourced “disinformation”
like posts that stated incorrect poll hours or mail-in voting procedures.
Apparently, the FBI’s flagging operations across-the-board led to posts being
taken down 50% of the time.
D.
Next, we look at CISA. CISA—working in close connection with the
FBI—held regular industry meetings with the platforms concerning their
moderation policies, pushing them to adopt CISA’s proposed practices for
addressing “mis-, dis-, and mal-information.” CISA also engaged in
“switchboarding” operations, meaning, at least in theory, that CISA officials
acted as an intermediary for third parties by forwarding flagged content from
them to the platforms. For example, during a federal election, CISA officials
would receive “something on social media that [local election officials]

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deemed to be disinformation aimed at their jurisdiction” and, in turn, CISA
would “share [that] with the appropriate social media compan[y].” But,
CISA’s role went beyond mere information sharing. Like the CDC for
COVID-related claims, CISA told the platforms whether certain election-
related claims were true or false. CISA’s actions apparently led to
moderation policies being altered and content being removed or demoted by
the recipient platforms.
E.
Finally, we briefly discuss the remaining offices, namely the NIAID
and the State Department. Generally speaking, the NIAID did not have
regular contact with the platforms or flag content. Instead, NIAID officials
were—as evidenced by internal emails—concerned with “tak[ing] down”
(i.e., discrediting) opposing scientific or policy views. On that front, Director
Anthony Fauci publicly spoke in favor of certain ideas (e.g., COVID
lockdowns) and against others (e.g., the lab-leak theory). In doing so, NIAID
officials appeared on podcasts and livestreams on some of the platforms.
Apparently, the platforms subsequently demoted posts that echoed or
supported the discredited views.
The State Department, on the other hand, communicated directly
with the platforms. It hosted meetings that were meant to “facilitate []
communication” with the platforms. In those meetings, it educated the
platforms on the “tools and techniques” that “malign” or “foreign
propaganda actors” (e.g., terrorist groups, China) were using to spread
misinformation. Generally, the State Department officials did not flag
content, suggest policy changes, or reciprocally receive data during those
meetings.
* * *

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Relying on the above record, the district court concluded that the
officials, via both private and public channels, asked the platforms to remove
content, pressed them to change their moderation policies, and threatened
them—directly and indirectly—with legal consequences if they did not
comply. And, it worked—that “unrelenting pressure” forced the platforms
to act and take down users’ content. Notably, though, those actions were not
limited to private actors. Accounts run by state officials were often subject to
censorship, too. For example, one platform removed a post by the Louisiana
Department of Justice—which depicted citizens testifying against public
policies regarding COVID—for violating its “medical misinformation
policy” by “spread[ing] medical misinformation.” In another instance, a
platform took down a Louisiana state legislator’s post discussing COVID
vaccines. Similarly, one platform removed several videos, namely
testimonials regarding COVID, posted by St. Louis County. So, the district
court reasoned, the Plaintiffs were “likely to succeed” on their claim because
when the platforms moderated content, they were acting under the coercion
(or significant encouragement) of government officials, in violation of the
First Amendment, at the expense of both private and governmental actors.
In addition, the court found that considerations of equity weighed in
favor of an injunction because of the clear need to safeguard the Plaintiffs’
First Amendment rights. Finally, the court ruled that the Plaintiffs had
standing to bring suit under several different theories, including direct First
Amendment censorship and, for the State Plaintiffs, quasi-sovereign
interests as well. Consequently, the district court entered an injunction
against the officials barring them from an assortment of activities, including
“meeting with,” “communicat[ing]” with, or “flagging content” for social-
media companies “for the purpose of urging, encouraging, pressuring, or
inducing in any manner the removal, deletion, suppression, or reduction of
content containing protected free speech.” The officials appeal.

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II.
We review the district court’s standing determination de novo.
Freedom Path, Inc. v. Internal Revenue Serv.,

913 F.3d 503, 507

 (5th Cir. 2019).
   “We review a preliminary injunction for abuse of discretion, reviewing
   findings of fact for clear error and conclusions of law de novo. Whether an
   injunction fulfills the mandates of Fed. R. Civ. P. 65(d) is a question of law
   we review de novo.” Louisiana v. Biden,

45 F.4th 841, 845

 (5th Cir. 2022)
   (internal quotation marks and citation omitted).
                                           III.
          We begin with standing. To establish Article III standing, the Plaintiffs
   bear the burden to show “[1] an injury in fact [2] that is fairly traceable to the
   challenged action of the defendant and [3] likely to be redressed by [their]
   requested relief.” Stringer v. Whitley,

942 F.3d 715, 720

 (5th Cir. 2019) (citing
   Lujan v. Defs. of Wildlife,

504 U.S. 555

, 560–61 (1992)). Because the Plaintiffs
   seek injunctive relief, the injury-in-fact and redressability requirements
   “intersect[]” and therefore the Plaintiffs must “demonstrat[e] a continuing
   injury or threatened future injury,” not a past one.