Biden administration seeks clarity on court’s ban in social media censorship lawsuit

September 11, 2023 06:54 PM

The Department of Justice is seeking clarity after an appeals court partly upheld a ruling last week that the Biden administration must restrict its communication with social media companies when it relates to the companies’ content moderation practices.

The DOJ’s motion, filed Monday in the 5th U.S. Circuit Court of Appeals, is aimed at preventing the Biden administration from having to abide by a lower court’s ruling that had initially placed more expansive restrictions on the administration, which are still set to take effect on Sept. 18.


The rulings came as part of Missouri v. Biden, a case brought by Missouri’s and Louisiana’s attorneys general last year alleging that the executive branch of the federal government had pressured and coerced social media companies to censor content protected by the First Amendment.

The content related to controversial topics, including COVID-19 vaccines and the story about Hunter Biden’s laptop published in the New York Post before the 2020 election.

The appeals court decision, made by a three-judge panel on Sept. 8, found that a Louisiana district court’s ruling in the case had been “broader than necessary” and reduced the restrictions so that they would apply only to the White House, the surgeon general, the Centers for Disease Control and Prevention, and the FBI.

It reversed the district court’s decision to place restrictions on other components of the federal government, including the State Department, the National Institute of Allergy and Infectious Diseases, and the Cybersecurity and Infrastructure Security Agency.

The appeals court decision would not become effective until Oct. 31, however, and the DOJ is looking to address the imminent limitations the Biden administration is set to face in the interim, beginning Sept. 18.

“That outcome would be flatly inconsistent with this Court’s ruling and with principles of orderly judicial administration, and it should unquestionably be avoided,” the DOJ wrote.

The department added that it wanted the appeals court to respond quickly, by Sept. 13, noting that the court’s decision would “inform any request for relief” as the Biden administration mulls filing an appeal with the Supreme Court next.

The three judges on the appeals court panel had largely agreed with sweeping findings issued by the district court in July, saying that the court “did not err in determining that several officials … likely coerced or significantly encouraged social-media platforms to moderate content, rendering those decisions state actions.”

“In doing so, the officials likely violated the First Amendment,” the judges added.

One example they highlighted was the FBI routinely meeting with major social media companies to counter disinformation operations brought by foreign entities.

“In those operations, the officials also targeted domestically sourced ‘disinformation’ like posts that stated incorrect poll hours or mail-in voting procedures,” the judges found. “Apparently, the FBI’s flagging operations across-the-board led to posts being taken down 50% of the time.”


While the judges’ decision was more narrow than the district court’s, Louisiana Attorney General Jeff Landry still found it to be a “significant victory.”

“This is a significant victory for the American people,” Landry said in a statement. “And it confirms what we have said from the very beginning: the federal government is not permitted to engage in viewpoint censorship, no matter your political ideology.”