Free Speech, Social Media Firms, and the Fifth Circuit

The Fifth Circuit was right to rule it was illegal for the federal government to coerce social media firms, but wrong to uphold a Texas law requiring those firms to post material they prefer to keep out.

(Rafael Henrique | Dreamstime.com)

On Friday, in Missouri v. Biden, the US Court of Appeals for the Fifth Circuit ruled that the the White House and several other federal government agencies violated the First Amendment by coercing social media firms such as Facebook and Twitter to take down material the government deemed to be "misinformation" or otherwise harmful. I think the court largely got this case right. But the same court (albeit with a different panel of judges) was badly wrong last year when, in NetChoice v. Paxton, it upheld a Texas law requiring many of those same firms to post material they disapprove of. If the First Amendment bars government coercion to take down speech from your website, it also bars the use of coercion forcing you to put it up.

The ideological valence of the two cases is different. Broadly speaking, many on the left were sympathetic to the coercive government policies at issue in Missouri v. Biden, but hostile to those in NetChoice. Many conservatives hold the opposite views. But the principle at stake in the two cases is the same. Government coercion is inimical to freedom of speech, whether imposed by the right or the left, and whether it forces people to take down speech against their will or put it up.

In Missouri v. Biden, the Fifth Circuit concluded that the White House, the Surgeon General and the FBI coerced social media firms to take down material these agencies objected to:

On multiple occasions, the officials coerced the platforms into direct action via urgent, uncompromising demands to moderate content. Privately, the officials were not shy in their requests—they asked the platforms to remove posts "ASAP" and accounts "immediately," and to "slow[] down" or "demote[]" content. In doing so, the officials were persistent and angry. When the platforms did not comply, officials followed up by asking why posts were "still up," stating (1) "how does something like [this] happen," (2) "what good is" flagging if it did not result in content moderation, (3) "I don't know why you guys can't figure this out," and (4) "you are hiding the ball," while demanding "assurances" that posts were being taken down.

And, more importantly, the officials threatened—both expressly and implicitly—to retaliate against inaction. Officials threw out the prospect of legal reforms and enforcement actions while subtly insinuating it would be in the platforms' best interests to comply. As one official put it, "removing bad information" is "one of the easy, low-bar things you guys [can] do to make people like me"—that is, White House officials—"think you're taking action."

It's noteworthy that the record analyzed by the court doesn't seem to include any examples of direct, unequivocal threats, such as "If you don't take down X, I will inflict punishment Y." But as the court recognizes, context matters. If a representative of a Mafia boss tells a business owner to pay protection money, because "that's one of the easy, low-bar things you can do to make people like me and the Don happy," the context strongly suggests a threat of coercion. The same thing is true if a representative of a government agency with regulatory authority over Twitter or Facebook uses similar language to pressure those firms to take down material.

I am less persuaded by the court's holding that "significant encouragement" defined as "a governmental actor exercis[ing] active, meaningful control over the private party's decision" also qualifies as a violation of free speech rights. If the private party voluntarily allowed government officials to exercise such "meaningful control," I see no violation of the Constitution. Indeed, owners of private media have a right to delegate publication and editorial decisions to whoever they want, including government officials.

There is a long history of partisan media outlets—including such current entities as Fox News—coordinating programming with leaders of their preferred political party, including government officials. Such coordination may be bad journalistic ethics. But it's still protected speech.

Obviously, in some cases it may be hard to tell whether the "significant encouragement" is voluntary or coerced. But only in the latter case should it be deemed a violation of the First Amendment. In the former, it is itself an exercise of a First Amendment right.

That said, it seems to me that the Fifth Circuit was right to find coercion with respect to at least some of these government efforts, and right to issue an injunction against it.

The injunction itself is narrowly drawn in such a way as to allow both government officials and social media firms to speak freely, so long as there is no coercion or "significant encouragement" (relatively narrowly defined):

Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies' decision-making processes.

Unlike the vastly broader injunction ordered by conservative district court Terry Doughty (which the Fifth Circuit reversed on this point), this one doesn't bar the White House and other agencies from speaking out about social media content-moderation policies or contacting the firms about them—so long as the contact falls short of "significant encouragement." That seems right to me. Government agencies—or anyone else—can condemn social media firms' policies and urge them to change. But they must not use coercion to do so.

There is, however, a tension between ruling in Missouri v. Biden and that in NetChoice v. Paxton. If the coercion in the former case must be inferred from context, that in the latter is much more blatant and obvious: Texas's law openly states that major social media firms may  not refuse to post a vast range of material based on objections to its content. If they don't comply, the state will force them to do so. If that isn't government coercion of speech, I don't know what is!

Some try to distinguish the two cases by arguing that forcing firms to host speech is not like forcing them to take it down. But freedom of speech includes the right to refuse to provide a platform for views you disapprove of. For example, it would clearly violate the First Amendment if the government forced Fox News to air left-wing views its owners did not wish to broadcast. Elsewhere, I have criticized arguments (adopted by the Fifth Circuit majority and others) to the effect that social media firms can be forced to platform views because they are "common carriers" (businesses required to serve all comers under the common law). These firms are not and never have been common carriers, and the standard rationales for common carrier status do not apply to them. They apply even less in an era where new alternatives to the currently most popular social media sites pop up on a regular basis, such as Mastodon or Threads.

I will only add that these points apply no less to Twitter (or X) under the Elon Musk regime than to that of the previous owners. Musk differs from previous management in what he chooses to take down. But he nonetheless bars some types of speech, and bars or suspends some accounts.

I didn't much like the policies of previous Twitter management, and I like Musk's even less. But both have free speech rights that should not depend on my approval—or that of the government. If Musk wants to bar my account from his site because he doesn't like my views, or even just because he doesn't like people whose last names start with the letter "S," he should be free to do so.

A possible explanation for the discrepancy between the two Fifth Circuit decisions is that the panels that heard them had different judges. I strongly suspect that if the panel that heard Missouri v. Biden had also considered NetChoice v. Paxton, they would have reached a different decision in the latter case, one that looks more like Judge Leslie Southwick's dissent in NetChoice, or the Eleventh Circuit's ruling striking down a similar Florida law (written by conservative Trump appointee Judge Kevin Newsom). This is particularly likely in the case of Judge Don Willett, a member of the Missouri v. Biden panel who is one of the most libertarian-leaning judges in the entire federal judiciary.

Judges Edith Clement and Jennifer Elrod, the other two judges on the Missouri panel, also strike me as having more civil libertarian leanings than Andrew Oldham and Edith Jones, the two more socially conservative judges in the NetChoice majority. While all six judges involved (including NetChoice dissenter Judge Southwick) are GOP appointees, this is an area where right-of-center judges disagree among themselves.

Whatever the explanation for the discrepancy between the two Fifth Circuit rulings, I hope the Supreme Court ultimately resolves the issue in favor of a clear rule banning government coercion of social media speech across the board.

NOTE: I am a former Fifth Circuit law clerk. But I did not clerk for any of the judges on the panels in these two cases.