5th Circuit, in Reversal, Grants Plaintiffs' Requests to Add CISA to Social Media Injunction

The 5th U.S. Circuit Court of Appeals, in a newly revised opinion Tuesday (docket 23-30445), granted on rehearing the requests to add the Cybersecurity and Infrastructure Security Agency to the list of federal agencies enjoined in the injunction against Biden administration officials from "coercing or significantly encouraging" social media platforms to moderate their content. The Republican attorneys general of Louisiana and Missouri and five individual social media plaintiffs requested the addition.

The 5th Circuit’s previous Sept. 8 opinion said there wasn’t sufficient evidence CISA violated the First Amendment to justify extending the injunction to CISA officials (see 2309110001). The plaintiffs’ Sept. 22 petition for rehearing argued the 5th Circuit overlooked important evidence implicating CISA in the government’s social media censorship campaign (see 2309240002.

The 5th Circuit, in Tuesday’s opinion, however, denied the plaintiffs’ request to add State Department officials to the injunction, leaving intact the injunction’s original restrictions on the White House, the surgeon general’s office, the FBI, the Centers for Disease Control and Prevention and now CISA. Tuesday’s opinion also rejected the plaintiffs’ requests to enjoin CISA and other government officials from collaborating with the Election Integrity Partnership (EIP), a private organization of Stanford University and the University of Washington, on social media content moderation.

Adding those restrictions “may implicate private, third-party actors that are not parties in this case and that may be entitled to their own First Amendment protections,” said the court. The plaintiffs haven’t shown that including those third parties “is necessary to remedy their injury,” so those restrictions “cannot stand at this juncture,” it said.

With Tuesday’s opinion, the 5th Circuit immediately issued its mandate terminating its jurisdiction in the case, and it granted the government a 10-day administrative stay, through Oct. 13, preventing the injunction from taking effect. Those developments appeared to give the government a renewed opportunity to apply to U.S. Supreme Court Justice Samuel Alito, circuit judge for the 5th Circuit, for a full stay, pending the court’s disposition of a forthcoming cert petition challenging the injunction’s legality. DOJ’s previous application to Alito was rendered moot when the 5th Circuit recalled its Sept. 11 mandate so it could consider the plaintiffs’ petition for rehearing.

The government previously told Alito it planned to file the cert petition by Oct. 13 (see 2309140046), now also the date when the 10-day administrative stay of the injunction expires. DOJ didn’t respond to email queries Wednesday about whether it still plans to file the cert petition by Oct. 13.

The newly expanded injunction specifically enjoins six CISA officials, including CISA Director Jen Easterly, from coercing or significantly encouraging social media platforms to moderate their content, said Tuesday’s order. “We find that, for many of the same reasons as the FBI and the CDC, CISA also likely violated the First Amendment,” it said. It said 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, it said.

CISA also used its “frequent interactions” with social media platforms “to push them to adopt more restrictive policies on censoring election-related speech,” said the opinion. The platforms’ censorship decisions “were made under policies that CISA has pressured them into adopting,” it said. Those decisions were based “on CISA’s determination of the veracity of the flagged information” unearthed from social media through the government’s collaboration with the EIP, it said.

Tuesday’s opinion didn't explain why the 5th Circuit’s Sept. 8 order was relatively silent on CISA’s role when it absolved the agency then of culpability in the government’s alleged censorship conspiracy. CISA’s conduct “falls on the ‘attempts to convince,' not ‘attempts to coerce,’ side of the line,” said the Sept. 8 order. There wasn't sufficient evidence that CISA “made threats of adverse consequences -- explicit or implicit -- to the platforms for refusing to act on the content it flagged,” it said in the Sept. 8 order.

Nor was there any indication CISA “had power over the platforms in any capacity, or that their requests were threatening in tone or manner,” said the Sept. 8 order. Though CISA’s content requests to social media amounted to “a non-trivial level of involvement,” its conduct didn’t “equate to meaningful control,” it said then: “There is no plain evidence that content was actually moderated per CISA's requests or that any such moderation was done subject to non-independent standards.”