State of Missouri v. Biden, No. 23-30445 (5th Cir. 2023)
A Summary Of The Key Points In The Fifth Circuit's Missouri v Biden Decision
In my previous video about the pending Supreme Court case Murthy v Missouri, I covered the basic facts and background of the case, as well as its procedural history up to and including the preliminary injunction issued by the District Court. I had discussed making a whole second video covering the appeal of that case to the Fifth Circuit.
For brevity’s sake I have decided it will work just as well to provide the following syllabus of the Fifth Circuit decision in the case as its own free-standing article and will just focus my second video on the case as it is coming before the Supreme Court.
What I have put together here is essentially a condensed version of the key points of the Fifth Circuit from their original 74 page decision.
While they generally agreed with the findings of the District Court they did not agree that all the named individuals’ enjoined in the District Court’s preliminary injunction engaged in state action that rose to the level of coercion. They also did not agree every communication identified by the District Court as coercion met that threshold. So they would vacate the District Court’s Preliminary Injunction and substitute it with their own, which largely upheld, but limited the initial scope. As they put it:
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.[1]
The Fifth Circuit dedicates a great deal of time to reviewing the facts of the case, which we have already discussed in detail in my original Murthy v Missouri video, so I will forgo including those here and get to the actionable parts of their decision.
One thing the Fifth Circuit did a better job of than the District Court was to define the limits and contours upon which each element of their decision would be based:
The government cannot abridge free speech. U.S. Const. amend. I. A private party, on the other hand, bears no such burden—it is “not ordinarily constrained by the First Amendment.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). That changes, though, when a private party is coerced or significantly encouraged by the government to such a degree that its “choice”—which if made by the government would be unconstitutional, Norwood v. Harrison, 413 U.S. 455, 465 (1973)—“must in law be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Barnes v. Lehman, 861 F.2d 1383, 1385– 36 (5th Cir. 1988). This is known as the close nexus test.
Under that test, we “begin[] by identifying ‘the specific conduct of which the plaintiff complains.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (quoting Blum, 457 U.S. at 1004 (“Faithful adherence to the ‘state action’ requirement . . . requires careful attention to the gravamen of the plaintiff’s complaint.”)). Then, we ask whether the government sufficiently induced that act. Not just any coaxing will do, though. After all, “the government can speak for itself,” which includes the right to “advocate and defend its own policies.” Southworth, 529 U.S. at 229; see also Walker, 576 U.S. at 207. But, on one hand there is persuasion, and on the other there is coercion and significant encouragement—two distinct means of satisfying the close nexus test. See Louisiana Div. Sons of Confederate Veterans v. City of Natchitoches, 821 F. App’x 317, 320 (5th Cir. 2020) (per curiam) (“Responding agreeably to a request and being all but forced by the coercive power of a governmental official are different categories of responses . . .”). Where we draw that line, though, is the question before us today.[2]
We start with encouragement. To constitute “significant encouragement,” there must be such a “close nexus” between the parties that the government is practically “responsible” for the challenged decision. Blum, 457 U.S. at 1004 (emphasis in original). What, then, is a close nexus? We know that “the mere fact that a business is subject to state regulation” is not sufficient. Id. (alteration adopted) (citation omitted); Halleck, 139 S. Ct. at 1932 (“Put simply, being regulated by the State does not make one a state actor.”). And, it is well established that the government’s “[m]ere approval of or acquiescence in” a private party’s actions is not enough either. Blum, 457 U.S. at 1004–05. Instead, for encouragement, we find that the government must exercise some active, meaningful control over the private party’s decision.[3]
Next is coercion, and the standard that is used for coercion, really, by all levels in this case, from the original complaint to the Supreme Court has been the landmark decision in Bantam Books.
Take Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). There, the Rhode Island Commission to Encourage Morality—a state-created entity—sought to stop the distribution of obscene books to kids. Id. at 59. So, it sent a letter to a book distributor with a list of verboten books and requested that they be taken off the shelves. Id. at 61–64. That request conveniently noted that compliance would “eliminate the necessity of our recommending prosecution to the Attorney General’s department.” Id. at 62 n.5. Per the Commission’s request, police officers followed up to make sure the books were removed. Id. at 68.
The Court concluded that this “system of informal censorship,” which was “clearly [meant] to intimidate” the recipients through “threat of [] legal sanctions and other means of coercion” rendered the distributors’ decision to remove the books a state action. Id. at 64, 67, 71–72. Given Bantam Books, not-so subtle asks accompanied by a “system” of pressure (e.g., threats and followups) are clearly coercive.[4]
To sum up, under the close nexus test, a private party’s conduct may be state action if the government coerced or significantly encouraged it. Blum, 457 U.S. at 1004. Although this test is not mechanical, see Roberts, 742 F.2d at 224 (noting that state action is “essentially [a] factual determination” made by “sifting facts and weighing circumstances case by case to determine if there is a sufficient nexus between the state and the particular aspect of the private individual’s conduct which is complained of” (citation and quotation marks omitted)), there are clear, although not exclusive, ways to satisfy either prong.
For encouragement, we read the law to require that a governmental actor exercise active, meaningful control over the private party’s decision in order to constitute a state action. That reveals itself in (1) entanglement in a party’s independent decision-making or (2) direct involvement in carrying out the decision itself. Compare Roberts, 742 F.2d at 224 (state had such “continuous and intimate involvement” and supervision over horseracing decision that, when coupled with its authority over the actor, it was considered a state action) and Howard Gault, 848 F.2d at 555 (state eagerly, and effectively, assisted a private party in shutting down a protest), with Blum, 457 U.S. at 1008 (state did not sufficiently influence the decision as it was made subject to independent standards).
In any of those scenarios, the state has such a “close nexus” with the private party that the government actor is practically “responsible” for the decision, Blum, 457 U.S. at 1004, because it has necessarily encouraged the private party to act and, in turn, commandeered its independent judgment, O’Handley, 62 F.4th at 1158–59.[5]
The limited finding upon which the fifth circuit would submit its own injunction are as follows:
Taking that in context, we apply the law to one set of officials at a time, starting with the White House and Office of the Surgeon General.
1. We find 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 processes, both in violation of the First Amendment.[6]
2. Next, we consider the FBI. We find that the FBI, too, likely (1) coerced the platforms into moderating content, and (2) encouraged them to do so by effecting changes to their moderation policies, both in violation of the First Amendment.[7]
3. Next, we turn to the CDC. We find that, although not plainly coercive, the CDC officials likely significantly encouraged the platforms’ moderation decisions, meaning they violated the First Amendment.[8]
4. Next, we examine CISA. We find that, for many of the same reasons as the FBI and the CDC, CISA also likely violated the First Amendment. First, CISA was the “primary facilitator” of the FBI’s interactions with the social-media platforms and worked in close coordination with the FBI to push the platforms to change their moderation policies to cover “hack-and-leak” content. Second, CISA’s “switchboarding” operations, which, in theory, involved CISA merely relaying flagged social-media posts from state and local election officials to the platforms, was, in reality, “[s]omething more.” Roberts, 742 F.2d at 228.
CISA used its frequent interactions with social media platforms to push them to adopt more restrictive policies on censoring election-related speech. And CISA officials affirmatively told the platforms whether the content they had “switchboarded” was true or false. Thus, when the platforms acted to censor CISA-switchboarded content, they did not do so independently. Rather, the platforms’ censorship decisions were made under policies that CISA has pressured them into adopting and based on CISA’s determination of the veracity of the flagged information. Thus, CISA likely significantly encouraged the platforms’ content-moderation decisions and thereby violated the First Amendment. See Blum, 457 U.S. at 1008; Howard Gault, 848 F.2d at 555.[9]
5. Finally, we address the remaining officials—the NIAID and the State Department. Having reviewed the record, we find the district court erred in enjoining these other officials. Put simply, there was not, at this stage, sufficient evidence to find that it was likely these groups coerced or significantly encouragement the platforms.[10]
The Fifth Circuit would summarize the totality of their holdings as follows:
Ultimately, we find the district court did not err in determining that several officials—namely the White House, the Surgeon General, the CDC, the FBI, and CISA—likely coerced or significantly encouraged social-media platforms to moderate content, rendering those decisions state actions.20 In doing so, the officials likely violated the First Amendment.21 But, we 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. Tan, 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.[11]
The Court would also largely (though not entirely) uphold the equitable relief sought and partially uphold the legal reasoning behind the validity of the plaintiff’s claims of harm.
Next, we address the equities. Plaintiffs seeking a preliminary injunction must show that irreparable injury is “likely” absent an injunction, the balance of the equities weighs in their favor, and an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (collecting cases). While “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (per curiam) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)), “invocation of the First Amendment cannot substitute for the presence of an imminent, non-speculative irreparable injury,” Google, Inc. v. Hood, 822 F.3d 212, 228 (5th Cir. 2016).
Here, the district court found that the Plaintiffs submitted enough evidence to show that irreparable injury is likely to occur during the pendency of the litigation. In so doing, the district court rejected the officials’ arguments that the challenged conduct had ceased and that future harm was speculative, drawing on mootness and standing doctrines. Applying the standard for mootness, the district court concluded that a defendant must show that “it is absolutely clear the alleged wrongful behavior could not reasonably be expected to recur” and that the officials had failed to make such showing here. In assessing whether Plaintiffs’ claims of future harm were speculative and dependent on the actions of social-media companies, the district court applied a quasi-standing analysis and found that the Plaintiffs had alleged a “substantial risk” of future harm that is not “imaginary or wholly speculative,” pointing to the officials’ ongoing coordination with social-media companies and willingness to suppress free speech on a myriad of hot-button issues.
We agree that the Plaintiffs have shown that they are likely to suffer an irreparable injury. Deprivation of First Amendment rights, even for a short period, is sufficient to establish irreparable injury. Elrod, 427 U.S. at 373; Cuomo, 141 S. Ct. at 67; Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir. 2012). The district court was right to be skeptical of the officials’ claims that they had stopped all challenged conduct. Cf. Speech First, Inc. v. Fenves, 979 F.3d 319, 328 (5th Cir. 2020) (“[A] defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice, even in cases in which injunctive relief is sought.”). But, the district court’s use of a “not imaginary or speculative” standard in the irreparable harm context is inconsistent with binding case law. See Winter, 555 U.S. at 22
The correct standard is whether a future injury is “likely.” Id. But, because the Plaintiffs sufficiently demonstrated that their First Amendment interests are either threatened or impaired, they have met this standard. See Opulent Life Church, 697 F.3d at 295 (citing 11A Charles Alan Wright et al., Federal Practice and Procedure § 2948.1 (2d ed. 1995) (“When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”)). Indeed, the record shows, and counsel confirmed at oral argument, that the officials’ challenged conduct has not stopped.[12]
The final point they discussed is whether a preliminary injunction, such as the one issued by the district court was warranted on the grounds that it was in the public interest:
Next, we turn to whether the balance of the equities warrants an injunction and whether such relief is in the public interest. Where the government is the opposing party, harm to the opposing party and the public interest “merge.” Nken v. Holder, 556 U.S. 418, 435 (2009).
The district court concluded that the equities weighed in favor of granting the injunction because the injunction maintains the “constitutional structure” and Plaintiffs’ free speech rights. The officials argue that the district court gave short shrift to their assertions that the injunction could limit the Executive Branch’s ability to “persuade” the American public, which raises separation-of-powers issues.
Although both Plaintiffs and the officials assert that their ability to speak is affected by the injunction, the 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 socialmedia 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. Because “[i]njunctions protecting First Amendment freedoms are always in the public interest,” the equities weigh in Plaintiffs’ favor. Opulent Life Church, 697 F.3d at 298 (quotation marks and citations omitted).
While the officials raise legitimate concerns that the injunction could sweep in lawful speech, we have addressed those concerns by modifying the scope of the injunction.[13]
[1] Missouri v. Biden, No. 23-30445, (5th Cir. 2023), Page 2
[2] Missouri v. Biden, At 29
[3] Id. At 30
[4] Id. At 35-36
[5] Id. At 40
[6] Id. At 43
[7] Id. At 54
[8] Id. At 57
[9] Id. At 59-60
[10] Id. At 60
[11] Id. At 61-62
[12] Id. At 62-64
[13] Id. At 64-65