Fifth Circuit extends modified injunction to CISA

The three-judge panel of the Fifth Circuit Court of Appeals, still dealing with an appeal by the government in Missouri v. Biden,issued a new opinion yesterday to replace their earlier opinion. According to that new opinion, they have extended their modified injunction to include the Cybersecurity and Infrastructure Security Agency (CISA). The Louisiana Attorney General’s Office has already notified the Supreme Court, which is hearing yet another government appeal.

Fifth Circuit slightly strengthens their injunction

Yesterday the Fifth Circuit issued a new opinion, enjoining the agencies they had enjoined a month ago, plus one other. That agency is the Cybersecurity and Infrastructure Security Agency (CISA), which The Intercept originally placed at the heart of turning social media companies into State actors.

On September 8, the Fifth Circuit issued an opinion modifying Judge Terry A. Doughty’s Big Injunction of July 4. This vastly narrower injunction specifically forbade the:

• White House,
• Office of the Surgeon General,
• Centers for Disease Control and Prevention (CDC), and
• Federal Bureau of Investigation (FBI),

from threatening social media companies with penalties, or otherwise coercing or “significantly encouraging” these companies to change their moderational policies or to sanction any users they might otherwise not have sanctioned. But: they left out of their injunction the following agencies:

• Department of State,
• National Institute of Allergy and Infectious Disease (NIAID), and
• Cybersecurity and Infrastructure Security Agency (CISA).

The plaintiffs asked the same three judges to hear the case again. (CNAV’s earlier statement that they petitioned for an en banc hearing is in error. A panel rehearing is a re-hearing by the same panel that heard the case originally.)

The Fifth Circuit, after requesting briefs from both sides, issued their new opinion yesterday. This new opinion lists CISA, along with the other agencies, as an offender. All other affirmations, reversals, and vacaturs remain in force.

See also docket pages at District, Appellate and Supreme Court levels.

To the Supreme Court

The Fifth Circuit stayed their new injunction for ten days, but issued an immediate mandamus today. Louisiana Attorney General Jeff Landry sent a letter to the Supreme Court advising them of the new development.

In finding against CISA, the appeals court said:

We find that, for many of the same reasons as the FBI and the CDC, CISA also likely violated the First Amendment. First, 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. Second, CISA’s “switchboarding” operations, which, in theory, involved CISA merely relaying flagged social-media posts from state and local election officials to the platforms, was, in reality, “[s]omething more.” … CISA used its frequent interactions with social-media platforms to push them to adopt more restrictive policies on censoring election-related speech. And CISA officials affirmatively told the platforms whether the content they had “switchboarded” was true or false. Thus, when the platforms acted to censor CISA-switchboarded content, they did not do so independently. Rather, the platforms’ censorship decisions were made under policies that CISA has pressured them into adopting and based on CISA’s determination of the veracity of the flagged information. Thus, CISA likely significantly encouraged the platforms’ content-moderation decisions and thereby violated the First Amendment. Opinion dated 3 October 2023

This differs significantly from the panel’s earlier text exonerating CISA:

[A]lthough CISA flagged content for social-media platforms as part of its switchboarding operations, based on this record, its conduct falls on the “attempts to convince,” not “attempts to coerce,” side of the line…. There is not sufficient evidence that CISA made threats of adverse consequences—explicit or implicit—to the platforms for refusing to act on the content it flagged. See Warren, 66 F.4th at 1208–11 (finding that senator’s communication was a “request rather than a command” where it did not “suggest that compliance was the only realistic option” or reference potential “adverse consequences”). Nor is there any indication CISA had power over the platforms in any capacity, or that their requests were threatening in tone or manner. Similarly, on this record, their requests—although certainly amounting to a non-trivial level of involvement—do not equate to meaningful control. 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. Opinion dated September 8, 2023

The only thing that could have changed were a few other authorities that plaintiff-appellees submitted in their recent briefs. To be sure, the new opinion accords much better with The Intercept’s “thought cops” article of last year.

No doubt the government will press the matter at the Supreme Court, asking in effect for the authority to censor.