Although Friday's order still applies to a broad range of individuals working in the government, it specifically mentions 14 White House officials, including five who are no longer in office. Surgeon General Vivek H. Murthy and another member of his office, three CDC staffers, and two FBI officials, including the head of the foreign influence task force and the lead agent of its cyber investigative task force in San Francisco are among those named in the order. White House press secretary Karine Jean-Pierre is also listed as one of the officials named.
Daphne Keller, a professor at Stanford Law School, noted that the ruling from the 5th Circuit Court of Appeals seems to permit regular communications as long as they are not threatening or attempting to control the content decisions of platforms. However, it also states that they cannot "significantly encourage" platforms to remove lawful content, which raises questions about what exactly constitutes significant encouragement.
The decision on Friday was made in response to a lawsuit filed by Republican attorneys general in Louisiana and Missouri. They argued that government officials violated the First Amendment by pressuring social media companies to address posts that they believed could contribute to vaccine hesitancy during the pandemic or disrupt elections.
Missouri Attorney General Andrew Bailey hailed the ruling as a victory, stating that it marks the beginning of a separation between tech companies and the state. He referred to it as the first brick in the wall.
According to the judges, government officials were assertive and insistent in their requests for social media posts to be removed promptly. They described a period in July 2021 as particularly contentious, with President Biden accusing Facebook of causing harm. The judges found that the officials' communications were intimidating when considering the context. They also focused on the FBI's interactions with tech platforms leading up to the 2020 elections, noting that the FBI targeted posts originating within the United States, including those containing incorrect information about voting procedures. The judges stated that the platforms changed their policies based on FBI briefings, particularly regarding handling hacked materials. However, they deemed some government communications permissible, including those from Anthony S. Fauci, as they did not violate the First Amendment. The judges also disagreed with the lower court's decision to prohibit the Cybersecurity and Infrastructure Security Agency (CISA) from interacting with companies, stating that CISA's efforts to flag content did not amount to coercion. Chris Krebs, former CISA chief, expressed reassurance with the ruling. The judges found no evidence that the State Department's communications exceeded educating platforms about foreign actors' techniques. The Justice Department has not yet commented on the ruling or indicated whether it will appeal. If no intervention occurs, the order will take effect in 10 days. The FBI, Google, Meta, and the surgeon general's office have not provided comments. Any potential appeal could bring the debate over online speech to the Supreme Court, which is already expected to address conflicting rulings on state social media laws this year. Legal experts believe this case is a strong candidate for Supreme Court involvement due to unclear laws and differing court conclusions. However, some caution that the ruling oversimplifies various forms of government speech. The 5th Circuit ruling reversed the lower court's order specifically enjoining actions of leaders at DHS, HHS, and other agencies, asserting that these individuals were exercising permissible government speech. The judges emphasized the importance of distinguishing between the state and the people to uphold individual liberty.
