‘Implications’ of 5th Circuit Upholding WH Injunction ‘Are Startling,’ Says DOJ Brief

The 5th Circuit’s Oct. 3 decision affirming the injunction barring officials from the White House and four federal agencies from coercing or significantly encouraging social media companies to moderate their content (see 2310040001) “is flawed three times over,” said the government’s opening brief on the merits Tuesday at the U.S. Supreme Court in Murthy v. State of Missouri (docket 23-411). The injunction is stayed pending completion of the SCOTUS review (see 2310230003).

The government thinks the 5th Circuit U.S. Court of Appeals erred in finding that the respondents -- the Republican attorneys general of Missouri and Louisiana, plus five individual social media users -- have standing, said the brief. The circuit court wrongly held that the government’s challenged conduct “transformed the platforms’ content-moderation decisions into state action, and in concluding that a sweeping preliminary injunction is proper,” the brief said.

The respondents lack Article III standing because they haven’t shown “any cognizable injuries that are fairly traceable to the government or redressable by judicial relief,” said the brief. The respondents rely mainly on past instances “when their posts and accounts were subject to moderation by private platforms,” it said. But those injuries aren’t “fairly traceable to the government,” it said.

To the contrary, the content moderation that injured the respondents began “long before most of the government conduct they challenge,” it said. Those injuries can’t support standing to seek prospective relief because they don’t “establish a real and immediate threat of future injury attributable to the government,” it said.

Nor can the respondents establish standing “by asserting a generalized desire to listen to other social-media users,” said the brief. That’s “a limitless theory no court has endorsed,” it said. The state respondents also lack standing “because they have no First Amendment rights to begin with,” it said.

The respondents’ First Amendment claims also lack merit, said the brief. The 5th Circuit held that the government’s communications with private social media platforms “transformed the platforms’ content-moderation decisions into state action attributable to the government and violated the First Amendment,” it said.

But government officials “are and must be free to inform, to persuade, and to criticize,” said the brief. Such government speech often prompts private entities to act, but that doesn’t “transform those entities into state actors,” it said: “Were it otherwise, every successful public-awareness campaign or use of the bully pulpit would create state action.”

SCOTUS instead has emphasized that a private entity becomes a state actor only in a few limited circumstances, such as when the government compels the private entity to take a particular action, said the brief. Such compulsion “requires either coercive threats or equivalent significant encouragement,” it said. That includes “positive inducements” that overwhelm the recipient’s “independent judgment and render its decisions fairly attributable to the government,” it said. Private entities that “merely respond” to information, persuasion or criticism from government officials aren’t state actors, it said.

Those principles “resolve this case,” said the brief. The 5th Circuit didn’t purport to find that any government official “offered the platforms any positive inducements to change their content-moderation decisions,” much less the specific decisions that injured the respondents, it said. It also didn’t purport to conclude that officials from the FBI, the Centers for Disease Control and Prevention, the Cybersecurity and Infrastructure Security Agency or the surgeon general’s office “threatened platforms with adverse consequences if they failed to moderate content,” it said.

Rather than asking whether the government used threats or inducements to compel the specific content-moderation decisions that injured the respondents, the 5th Circuit “deemed all of the private platforms’ content-moderation activities to be state action by radically expanding the state-action doctrine,” said the brief. The court applied “malleable standards” to find coercion “even absent any threat of adverse action,” it said.

The 5th Circuit defined significant encouragement as requiring nothing more than “entanglement” in the platforms’ content-moderation efforts, said the brief. That’s “a novel standard” that the court found was satisfied “simply because various government agencies met with the platforms, shared information within their respective areas of expertise, and responded to platforms’ questions,” it said.

The “implications” of the 5th Circuit’s holdings “are startling,” said the brief. The court “imposed unprecedented limits” on the ability of the president’s closest aides “to speak about matters of public concern,” on the FBI’s ability to address threats to U.S. security and on the CDC’s ability to relay public-health information, it said.

The injunction “contravenes equitable principles,” said the brief. The 5th Circuit didn’t identify any facts demonstrating that the respondents “will likely suffer irreparable injury in the future,” it said. The injunction also is overbroad because it extends relief “to nonparties and covers any governmental communication about moderation of content on any topic posted by any user on any platform,” it said. Because of its breadth and vagueness, the injunction “would irreparably harm the government and the public” by chilling a host of “legitimate” executive branch communications, it said.