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United States Court of Appeals
for the Fifth Circuit

United States Court of Appeals
Fifth Circuit____________

FILED

September 8, 2023

No. 23-30445____________

Lyle W. Cayce
Clerk

State of Missouri; State of Louisiana; Aaron Kheriaty;
Martin Kulldorff; Jim Hoft; Jayanta Bhattacharya;
Jill Hines,
Plaintiffs—Appellees,
versusJoseph R. Biden, Jr.; Vivek H. Murthy; Xavier Becerra;
Department of Health & Human Services; Anthony
Fauci; Et al.,Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:22-CV-1213______________________________
Before Clement, Elrod, and Willett, Circuit Judges.
Per Curiam:
A group of social-media users and two states allege that numerous
federal officials coerced social-media platforms into censoring certain socialmedia content, in violation of the First Amendment. We agree, but only as tosome of those officials. So, we AFFIRM in part, REVERSE in part,
VACATE the injunction in part, and MODIFY the injunction in part.

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I.
For the last few years—at least since the 2020 presidential
transition—a group of federal officials has been in regular contact with nearly
every major American social-media company about the spread of“misinformation” on their platforms. In their concern, those officials—
hailing from the White House, the CDC, the FBI, and a few other agencies—
urged the platforms to remove disfavored content and accounts from theirsites. And, the platforms seemingly complied. They gave the officials accessto an expedited reporting system, downgraded or removed flagged posts, anddeplatformed users. The platforms also changed their internal policies tocapture more flagged content and sent steady reports on their moderation
activities to the officials. That went on through the COVID-19 pandemic, the2022 congressional election, and continues to this day.
Enter this lawsuit. The Plaintiffs—three doctors, a news website, ahealthcare activist, and two states1—had posts and stories removed or
downgraded by the platforms. Their content touched on a host of divisive
topics like the COVID-19 lab-leak theory, pandemic lockdowns, vaccine sideeffects, election fraud, and the Hunter Biden laptop story. The Plaintiffs
maintain that although the platforms stifled their speech, the government
officials were the ones pulling the strings—they “coerced, threatened, andpressured [the] social-media platforms to censor [them]” through private_____________________
1

Specifically, the Plaintiffs are (1) Jayanta Bhattacharya and Martin Kulldorff, twoepidemiologists who co-wrote the Great Barrington Declaration, an article criticizing
COVID-19 lockdowns; (2) Jill Hines, an activist who spearheaded “Reopen Louisiana”;(3) Aaron Kheriaty, a psychiatrist who opposed lockdowns and vaccine mandates; (4) Jim
Hoft, the owner of the Gateway Pundit, a once-deplatformed news site; and (5) Missouri
and Louisiana, who assert their sovereign and quasi-sovereign interests in protecting theircitizens and the free flow of information. Bhattacharya, Kulldorff, Hines, Kheriaty, andHoft, collectively, are referred to herein as the “Individual Plaintiffs.” Missouri andLouisiana, together, are referred to as the “State Plaintiffs.”

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communications and legal threats. So, they sued the officials2 for First
Amendment violations and asked the district court to enjoin the officials’
conduct. In response, the officials argued that they only “sought to mitigate
the hazards of online misinformation” by “calling attention to content” that
violated the “platforms’ policies,” a form of permissible government speech.
The district court agreed with the Plaintiffs and granted preliminary
injunctive relief. In reaching that decision, it reviewed the conduct of several
federal offices, but only enjoined the White House, the Surgeon General, theCDC, the FBI, the National Institute of Allergy and Infectious Diseases(NIAID), the Cybersecurity and Infrastructure Security Agency (CISA), andthe Department of State. We briefly review—per the district court’s orderand the record—those officials’ conduct.
A.
Considering their close cooperation and the ministerial ecosystem, wetake the White House and the Surgeon General’s office together. Officials
from both offices began communicating with social media companies—_____________________
2

The defendant-officials include (1) the President; (2) his Press Secretary; (3) the
Surgeon General; (4) the Department of Health and Human Services; (5) the HHS’s
Director; (6) Anthony Fauci in his capacity as the Director of the National Institute ofAllergy and Infectious Diseases; (7) the NIAID; (8) the Centers for Disease Control; (9)the CDC’s Digital Media Chief; (10) the Census Bureau; (11) the Senior Advisor forCommunications at the Census Bureau; (12) the Department of Commerce; (13) the
Secretary of the Department of Homeland Security; (14) the Senior Counselor to theSecretary of the DHS; (15) the DHS; (16) the Cybersecurity and Infrastructure Security
Agency; (17) the Director of CISA; (18) the Department of Justice; (19) the Federal Bureau
of Investigation; (20) a special agent of the FBI; (21) a section chief of the FBI; (22) the
Food and Drug Administration; (23) the Director of Social Media at the FDA; (24) the
Department of State; (25) the Department of Treasury; (26) the Department ofCommerce; and (27) the Election Assistance Commission. The Plaintiffs also sued a hostof various advisors, officials, and deputies in the White House, the FDA, the CDC, theCensus Bureau, the HHS, and CISA. Note that some of these officials were not enjoined
and, therefore, are not mentioned again in this opinion.

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including Facebook, Twitter (now known as “X”), YouTube, and Google—
in early 2021. From the outset, that came with requests to take down flagged
content. In one email, a White House official told a platform to take a post
down “ASAP,” and instructed it to “keep an eye out for tweets that fall inthis same [] genre” so that they could be removed, too. In another, an official
told a platform to “remove [an] account immediately”—he could not “stressthe degree to which this needs to be resolved immediately.” Often, thoserequests for removal were met.
But, the White House officials did not only flag content. Later thatyear, they started monitoring the platforms’ moderation activities, too. Inthat vein, the officials asked for—and received—frequent updates from theplatforms. Those updates revealed, however, that the platforms’ policies
were not clear-cut and did not always lead to content being demoted. So, theWhite House pressed the platforms. For example, one White House official
demanded more details and data on Facebook’s internal policies at least
twelve times, including to ask what was being done to curtail “dubious” or“sensational” content, what “interventions” were being taken, what
“measurable impact” the platforms’ moderation policies had, “how muchcontent [was] being demoted,” and what “misinformation” was not being
downgraded. In one instance, that official lamented that flagging did not“historically mean[] that [a post] was removed.” In another, the same official
told a platform that they had “been asking [] pretty directly, over a series of
conversations” for “what actions [the platform has] been taking to mitigate”
vaccine hesitancy, to end the platform’s “shell game,” and that they were
“gravely concerned” the platform was “one of the top drivers of vaccine
hesitancy.” Another time, an official asked why a flagged post was “still up”
as it had “gotten pretty far.” The official queried “how does something likethat happen,” and maintained that “I don’t think our position is that you
should remove vaccine hesitant stuff,” but “slowing it down seems

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reasonable.” Always, the officials asked for more data and stronger“intervention[s].”From the beginning, the platforms cooperated with the White House.
One company made an employee “available on a regular basis,” and anothergave the officials access to special tools like a “Partner Support Portal”
which “ensure[d]” that their requests were “prioritized automatically.”
They all attended regular meetings. But, once White House officials began todemand more from the platforms, they seemingly stepped-up their efforts toappease the officials. When there was confusion, the platforms would call to“clear up” any “misunderstanding[s]” and provide data detailing theirmoderation activities. When there was doubt, they met with the officials,
tried to “partner” with them, and assured them that they were actively trying
to “remove the most harmful COVID-19 misleading information.” At times,
their responses bordered on capitulation. One platform employee, whenpressed about not “level[ing]” with the White House, told an official that hewould “continue to do it to the best of [his] ability, and [he will] expect [theofficial] to hold [him] accountable.” Similarly, that platform told the Surgeon
General that “[w]e’re [] committed to addressing the [] misinformation thatyou’ve called on us to address.” The platforms were apparently eager to stayin the officials’ good graces. For example, in an effort to get ahead of anegative news story, Facebook preemptively reached out to the White House
officials to tell them that the story “doesn’t accurately represent the problem
or the solutions we have put in place.”
The officials were often unsatisfied. They continued to press theplatforms on the topic of misinformation throughout 2021, especially when
they seemingly veered from the officials’ preferred course. When Facebook
did not take a prominent pundit’s “popular post[]” down, a White House
official asked “what good is” the reporting system, and signed off with “lasttime we did this dance, it ended in an insurrection.” In another message, an

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official sent Facebook a Washington Post article detailing the platform’s
alleged failures to limit misinformation with the statement “[y]ou are hiding
the ball.” A day later, a second official replied that they felt Facebook was
not “trying to solve the problem” and the White House was“[i]nternally . . . considering our options on what to do about it.” In anotherinstance, an official—demanding “assurances” that a platform was taking
action—likened the platform’s alleged inaction to the 2020 election, which
it “helped increase skepticism in, and an insurrection which was plotted, inlarge part, on your platform.”
To ensure that problematic content was being taken down, theofficials—via meetings and emails—pressed the platforms to change theirmoderation policies. For example, one official emailed Facebook a document
recommending changes to the platform’s internal policies, including to its
deplatforming and downgrading systems, with the note that “this is
circulating around the building and informing thinking.” In another instance,
the Surgeon General asked the platforms to take part in an “all-of-society”
approach

to

COVID

by

implementing

strongermisinformation“monitoring” programs, redesigning their algorithms to “avoid amplifying
misinformation,”targeting“repeatoffenders,”“[a]mplify[ing]communications from trusted . . . experts,” and “[e]valuat[ing] theeffectiveness of internal policies.”
The platforms apparently yielded. They not only continued to takedown content the officials flagged, and provided requested data to the WhiteHouse, but they also changed their moderation policies expressly inaccordance with the officials’ wishes. For example, one platform said it knew
its “position on [misinformation] continues to be a particular concern” forthe White House, and said it was “making a number of changes” to captureand downgrade a “broader set” of flagged content. The platform noted that,in line with the officials’ requests, it would “make sure that these additional

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No. 23-30445[changes] show results—the stronger demotions in particular should deliver
real impact.” Another time, a platform represented that it was going tochange its moderation policies and activities to fit with express guidance fromthe CDC and other federal officials. Similarly, one platform noted that it was
taking down flagged content which seemingly was not barred under previous
iterations of its moderation policy.
Relatedly, the platforms enacted several changes that coincided withthe officials’ aims shortly after meeting with them. For example, one
platform sent out a post-meeting list of “commitments” including a policy“change[]” “focused on reducing the virality” of anti-vaccine content evenwhen it “does not contain actionable misinformation.” On another occasion,
one platform listed “policy updates . . . regarding repeat misinformation”
after meeting with the Surgeon General’s office and signed off that “[w]ethink there’s considerably more we can do in partnership with you and yourteams to drive behavior.”
Even when the platforms did not expressly adopt changes, though,they removed flagged content that did not run afoul of their policies. For
example, one email from Facebook stated that although a group of posts did
not “violate our community standards,” it “should have demoted them
before they went viral.” In another instance, Facebook recognized that a
popular video did not qualify for removal under its policies but promised that
it was being “labeled” and “demoted” anyway after the officials flagged it.
At the same time, the platforms often boosted the officials’ activities
at their request. For example, for a vaccine “roll out,” the officials shared“what [t]he admin’s plans are” and “what we’re seeing as the biggest
headwinds” that the platforms could help with. The platforms “welcome[d]the opportunity” to lend a hand. Similarly, when a COVID vaccine washalted,

the

White

House

asked

7

a

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No. 23-30445“hard . . . intervention[s]” and “algorithmic amplification”—“make surethat a favorable review reaches as many people” as possible to stem the
spread of alleged misinformation. The officials also asked for labeling of posts
and a 24-hour “report-back” period to monitor the public’s response. Again,
the platforms obliged—they were “keen to amplify any messaging you want
us to project,” i.e., “the right messages.” Another time, a platform told theWhite House it was “eager” to help with vaccine efforts, including by“amplify[ing]” content. Similarly, a few months later, after the White House
shared some of the “administration’s plans” for vaccines in an industry
meeting, Facebook reiterated that it was “committed to the effort ofamplifying the rollout of [those] vaccines.”
Still, White House officials felt the platforms were not doing enough.
One told a platform that it “remain[ed] concerned” that the platform wasencouraging vaccine hesitancy, which was a “concern that is shared at thehighest (and I mean highest) levels of the [White House].” So, the official
asked for the platform’s “road map to improvement” and said it would be“good to have from you all . . . a deeper dive on [misinformation] reduction.”
Another time, the official responded to a moderation report by flagging auser’s account and saying it is “[h]ard to take any of this seriously when
you’re actively promoting anti-vaccine pages.” The platform subsequently“removed” the account “entirely” from its site, detailed new changes to thecompany’s moderation policies, and told the official that “[w]e clearly still
have work to do.” The official responded that “removing bad information”
is “one of the easy, low-bar things you guys [can] do to make people like methink you’re taking action.” The official emphasized that other platforms had“done pretty well” at demoting non-sanctioned information, and said “I
don’t know why you guys can’t figure this out.”
The officials’ frustrations reached a boiling point in July of 2021. Thatmonth, in a joint press conference with the Surgeon General’s office, the8Case: 23-30445

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White House Press Secretary said that the White House “expect[s] more”
from the platforms, including that they “consistently take action against
misinformation”

and“operatewithgreatertransparency

andaccountability.” Specifically, the White House called on platforms to adopt“proposed changes,” including limiting the reach of “misinformation,”creating a “robust enforcement strategy,” taking “faster action” because
they were taking “too long,” and amplifying “quality information.” The
Press Secretary said that the White House “engag[es] with [the platforms]
regularly and they certainly understand what our asks are.” She also
expressly noted that several accounts, despite being flagged by the WhiteHouse, “remain active” on a few platforms.
The Surgeon General also spoke at the press conference. He said theplatforms were “one of the biggest obstacles” to controlling the COVID
pandemic because they had “enabled misinformation to poison” public
discourse and “have extraordinary reach.” He labeled social-media-based
misinformation an “urgent public health threat[]” that was “literally
costing . . . lives.” He asked social-media companies to “operate with greatertransparency and accountability,” “monitor misinformation more closely,”and “consistently take action against misinformation super-spreaders on
their platforms.” The Surgeon General contemporaneously issued a public
advisory “calling out social media platforms” and saying they “have a role toplay to improve [] health outcomes.” The next day, President Biden said thatthe platforms were “killing people” by not acting on misinformation. Then,a few days later, a White House official said they were “reviewing” the legal
liability of platforms—noting “the president speak[s] very aggressively
about” that—because “they should be held accountable.”
The platforms responded with total compliance. Their answer was
four-fold. First, they capitulated to the officials’ allegations. The day after
the President spoke, Facebook asked what it could do to “get back to a good9Case: 23-30445

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place” with the White House. It sought to “better understand . . . what theWhite House expects from us on misinformation going forward.” Second,
the platforms changed their internal policies. Facebook reached out to see“how we can be more transparent,” comply with the officials’ requests, and“deescalate” any tension. Others fell in line, too—YouTube and Google told
an official that they were “working on [it]” and relayed the “steps they are
currently taking” to do better. A few days later, Facebook told the Surgeon
General that “[w]e hear your call for us to do more,” and wanted to “makesure [he] saw the steps [it took]” to “adjust policies on what we are removing
with respect to misinformation,” including “expand[ing] the group of false
claims” that it removes. That included the officials’ “specificrecommendations for improvement,” and the platform “want[ed] to makesure to keep [the Surgeon General] informed of [its] work on each.”
Third, the platforms began taking down content and deplatforming
users they had not previously targeted. For example, Facebook started
removing information posted by the “disinfo dozen”—a group of influencers
identified

asproblematic

by

the

White

House—despite

earlier

representations that those users were not in violation of their policies. In
general, the platforms had pushed back against deplatforming users in thepast, but that changed. Facebook also made other pages that “had not yet
met their removal thresholds[] more difficult to find on our platform,” andpromised to send updates and take more action. A month later, members ofthe disinfo dozen were deplatformed across several sites. Fourth, theplatforms continued to amplify or assist the officials’ activities, such as a
vaccine “booster” campaign.
Still, the White House kept the pressure up. Officials continuously
expressed that they would keep pushing the platforms to act. And, in thefollowing year, the White House Press Secretary stressed that, in regard to
problematic users on the platforms, the “President has long been concerned

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about the power of large” social media companies and that they “must be
held accountable for the harms they cause.” She continued that the President“has been a strong supporter of fundamental reforms to achieve that goal,
including reforms to [S]ection 230, enacting antitrust reforms, requiring
more transparency, and more.” Per the officials, their back-and-forth withthe platforms continues to this day.
B.
Next, we turn to the CDC. Much like the White House officials, theCDC tried to “engage on a [] regular basis” with the platforms. They also
received reports on the platforms’ moderation activities and policy updates.
And, like the other officials, the CDC also flagged content for removal thatwas subsequently taken down. In one email, an official mentioned sixteen
posts and stated, “[W]e are seeing a great deal of misinfo [] that we wanted
to flag for you all.” In another email, CDC officials noted that flagged content
had been removed. And, the CDC actively sought to promote its officials’
views over others. For example, they asked “what [was] being done on theamplification-side” of things.
Unlike the other officials, though, the CDC officials also provided
direct guidance to the platforms on the application of the platforms’ internal
policies and moderation activities. They did so in three ways. First, CDC
officials authoritatively told the platforms what was (and was not)misinformation. For example, in meetings—styled as “Be On the Lookout”
alerts—officials educated the platforms on “misinformation[] hot topics.”
Second, CDC officials asked for, or at least encouraged, harmonious changes
to the platforms’ moderation policies. One platform noted that “[a]s soon as
the CDC updates [us],” it would change information on its website to comply
with the officials’ views. In that same email, the platform said it was
expanding its “misinfo policies” and it was “able to make this change based11

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on the conversation we had last week with the CDC.” In another email, aplatform noted “several updates to our COVID-19 Misinformation andHarm policy based on your inputs.” Third, through its guidance, the CDC
outright directed the platforms to take certain actions. In one post-meeting
email, an official said that “as mentioned on the call, any contextual
information that can be added to posts” on some alleged “disinformation”“could be very effective.”
Ultimately, the CDC’s guidance informed, if not directly affected, theplatforms’ moderation decisions. The platforms sought answers from theofficials as to whether certain controversial claims were “true or false” andwhether related posts should be taken down as misleading. The CDC officials
obliged, directing the platforms as to what was or was not misinformation.
Such designations directly controlled the platforms’ decision-making
process for the removal of content. One platform noted that “[t]here areseveral claims that we will be able to remove as soon as the CDC debunks
them; until then, we are unable to remove them.”
C.
Next, we consider the conduct of the FBI officials. The agency’s
officials regularly met with the platforms at least since the 2020 election. In
these meetings, the FBI shared “strategic information with [] social-media
companies” to alert them to misinformation trends in the lead-up to federal
elections. For example, right before the 2022 congressional election, the FBI
tipped the platforms off to “hack and dump” operations from “statesponsored actors” that would spread misinformation through their sites. In
another instance, they alerted the platforms to the activities and locations of“Russian troll farms.” The FBI apparently acquired this information fromongoing investigations.

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Per their operations, the FBI monitored the platforms’ moderation
policies, and asked for detailed assessments during their regular meetings.
The platforms apparently changed their moderation policies in response to
the FBI’s debriefs. For example, some platforms changed their “terms ofservice” to be able to tackle content that was tied to hacking operations.
But, the FBI’s activities were not limited to purely foreign threats. In
the build up to federal elections, the FBI set up “command” posts that would
flag concerning content and relay developments to the platforms. In those
operations, the officials also targeted domestically sourced “disinformation”
like posts that stated incorrect poll hours or mail-in voting procedures.
Apparently, the FBI’s flagging operations across-the-board led to posts being
taken down 50% of the time.
D.
Finally, we briefly discuss the remaining offices, namely the NIAID,
CISA, and the State Department. Generally speaking, the NIAID did nothave regular contact with the platforms or flag content. Instead, NIAID
officials were—as evidenced by internal emails—concerned with “tak[ing]down” (i.e., discrediting) opposing scientific or policy views. On that front,
Director Anthony Fauci publicly spoke in favor of certain ideas (e.g., COVID
lockdowns) and against others (e.g., the lab-leak theory). In doing so, NIAID
officials appeared on podcasts and livestreams on some of the platforms.
Apparently, the platforms subsequently demoted posts that echoed or
supported the discredited views.
CISA and the State Department, on the other hand, bothcommunicated directly with the platforms. The State Department hosted
meetings that were meant to “facilitate [] communication” with theplatforms. In those meetings, they educated the platforms on the “tools andtechniques” that “malign” or “foreign propaganda actors” (e.g., terrorist

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groups, China) were using to spread misinformation. Generally, the State
Department officials did not flag content, suggest policy changes, orreciprocally receive data during those meetings.
CISA, however, did flag content. Beyond holding regular industry
meetings with the platforms, CISA officials engaged in “switchboarding”
operations, meaning they acted as an intermediary for a third-party group by
forwarding flagged content from them to the platforms. For example, during
a federal election, CISA officials would receive “something on social media
that [local election officials] deemed to be disinformation aimed at theirjurisdiction” and, in turn, CISA would “share [that] with the appropriatesocial media compan[y].” In switchboarding, CISA officials worked
alongside the Center for Internet Security and the Election Integrity Project,
two private organizations. The officials’ actions apparently led to content
being removed or demoted by the recipient platforms.
* * *Relying on the above record, the district court concluded that theofficials, via both private and public channels, asked the platforms to remove
content, pressed them to change their moderation policies, and threatened
them—directly and indirectly—with legal consequences if they did notcomply. And, it worked—that “unrelenting pressure” forced the platforms
to act and take down users’ content. Notably, though, those actions were notlimited to private actors. Accounts run by state officials were often subject tocensorship, too. For example, one platform removed a post by the Louisiana
Department of Justice—which depicted citizens testifying against public
policies regarding COVID—for violating its “medical misinformation
policy” by “spread[ing] medical misinformation.” In another instance, aplatform took down a Louisiana state legislator’s post discussing COVID
vaccines.

Similarly, one platform removed several videos, namely

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testimonials regarding COVID, posted by St. Louis County. So, the district
court reasoned, the Plaintiffs were “likely to succeed” on their claim because
when the platforms moderated content, they were acting under the coercion(or significant encouragement) of government officials, in violation of theFirst Amendment, at the expense of both private and governmental actors.
In addition, the court found that considerations of equity weighed infavor of an injunction because of the clear need to safeguard the Plaintiffs’
First Amendment rights. Finally, the court ruled that the Plaintiffs had
standing to bring suit under several different theories, including direct First
Amendment censorship and, for the State Plaintiffs, quasi-sovereigninterests as well. Consequently, the district court entered an injunction
against the officials barring them from an assortment of activities, including“meeting with,” “communicat[ing]” with, or “flagging content” for socialmedia companies “for the purpose of urging, encouraging, pressuring, or
inducing in any manner the removal, deletion, suppression, or reduction ofcontent containing protected free speech.” The officials appeal.
II.
We review the district court’s standing determination de novo.
Freedom Path, Inc. v. Internal Revenue Serv., 913 F.3d 503, 507 (5th Cir. 2019).
“We review a preliminary injunction for abuse of discretion, reviewing
findings of fact for clear error and conclusions of law de novo. Whether an
injunction fulfills the mandates of Fed. R. Civ. P. 65(d) is a question of law
we review de novo.” Louisiana v. Biden, 45 F.4th 841, 845 (5th Cir. 2022)(internal quotation marks and citation omitted).
III.
We begin with standing. To establish Article III standing, the Plaintiffs
bear the burden to show “[1] an injury in fact [2] that is fairly traceable to thechallenged action of the defendant and [3] likely to be redressed by [their]

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requested relief.” Stringer v. Whitley, 942 F.3d 715, 720 (5th Cir. 2019) (citing
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). Because the Plaintiffs
seek injunctive relief, the injury-in-fact and redressability requirements“intersect[]” and therefore the Plaintiffs must “demonstrat[e] a continuing
injury or threatened future injury,” not a past one. Id. “At the preliminary
injunction stage, the movant must clearly show only that each element ofstanding is likely to obtain in the case at hand.” Speech First, Inc. v. Fenves,
979 F.3d 319, 330 (5th Cir. 2020) (citations omitted). The presence of any
one plaintiff with standing to pursue injunctive relief as to the Plaintiffs’ FirstAmendment claim satisfies Article III’s case-or-controversy requirement.
Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 52 n.2 (2006).
A.
An injury-in-fact is “‘an invasion of a legally protected interest’ thatis ‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting
Lujan, 504 U.S. at 560). “For a threatened future injury to satisfy theimminence requirement, there must be at least a ‘substantial risk’ that the
injury will occur.” Crawford v. Hinds Cnty. Bd. of Supervisors, 1 F.4th 371, 375(5th Cir. 2021) (quoting Stringer, 942 F.3d at 721). Past harm can constitutean injury-in-fact for purposes of pursuing injunctive relief if it causes“continuing, present adverse effects.” City of Los Angeles v. Lyons, 461 U.S.
95, 102 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974)).
Otherwise, “‘[p]ast wrongs are evidence’ of the likelihood of a future injury
but ‘do not in themselves amount to that real and immediate threat of injury
necessary to make out a case or controversy.’” Crawford, 1 F.4th at 375(quoting Lyons, 461 U.S. at 102–03) (alteration adopted).
Each of the Individual Plaintiffs has shown past injury-in-fact.
Bhattacharya’s and Kulldorff’s sworn declarations allege that their article,

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the Great Barrington Declaration, which was critical of the government’s
COVID-related policies such as lockdowns, was “deboosted” in Google
search results and removed from Facebook and Reddit, and that theirroundtable discussion with Florida Governor Ron DeSantis concerning mask
requirements in schools was removed from YouTube. Kulldorff also claimed
censorship of his personal Twitter and LinkedIn accounts due to his opinions
concerning vaccine and mask mandates; both accounts were suspended(although ultimately restored). Kheriaty, in his sworn declaration, attested to
the fact that his Twitter following was “artificially suppressed” and his posts“shadow bann[ed]” so that they did not appear in his followers’ feeds due tohis views on vaccine mandates and lockdowns, and that a video of one of his
interviews concerning vaccine mandates was removed from YouTube (butultimately re-posted). Hoft—founder, owner, and operator of news website
The Gateway Pundit—submitted a sworn declaration averring that The
Gateway Pundit’s Twitter account was suspended and then banned for its
tweets about vaccine mandates and election fraud, its Facebook posts
concerning COVID-19 and election security were either banned or flagged as
false or misinformation, and a YouTube video concerning voter fraud wasremoved. Hoft’s declaration included photographic proof of the Twitter andFacebook censorship he had suffered. And Hines’s declaration swears thather personal Facebook account was suspended and the Facebook posts of herorganization, Health Freedom Louisiana, were censored and removed fortheir views on vaccine and mask mandates.
The officials do not contest that these past injuries occurred. Instead,they argue that the Individual Plaintiffs have failed to demonstrate that theharm from these past injuries is ongoing or that similar injury is likely toreoccur in the future, as required for standing to pursue injunctive relief. We
disagree with both assertions.

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All five Individual Plaintiffs have stated in sworn declarations that
their prior censorship has caused them to self-censor and carefully wordsocial-media posts moving forward in hopes of avoiding suspensions, bans,and censorship in the future. Kulldorff, for example, explained that he now“restrict[s] what [he] say[s] on social-media platforms to avoid suspension
and other penalties.” Kheriaty described how he now must be “extremely
careful when posting any information on Twitter related to the vaccines, toavoid getting banned” and that he intentionally “limit[s] what [he] say[s]publicly,” even “on topics where [he] ha[s] specific scientific and ethicalexpertise and professional experience.” And Hoft notes that, “[t]o avoid
suspension and other forms of censorship, [his website] frequently avoid[s]posting content that [it] would otherwise post on social-media platforms, and[] frequently alter[s] content to make it less likely to trigger censorshippolicies.” These lingering effects of past censorship must be factored into thestanding calculus. See Lyons, 461 U.S. at 102.
As the Supreme Court has recognized, this chilling of the Individual
Plaintiffs’ exercise of their First Amendment rights is, itself, aconstitutionally sufficient injury. See Laird v. Tatum, 408 U.S. 1, 11 (1972).
True, “to confer standing, allegations of chilled speech or self-censorshipmust arise from a fear of [future harm] that is not imaginary or wholly
speculative.” Zimmerman v. City of Austin, Tex., 881 F.3d 378, 390 (5th Cir.
2018) (internal quotation marks and citation omitted); see also Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 416 (2013) (Plaintiffs “cannot manufacture
standing merely by inflicting harm on themselves based on their fears ofhypothetical future harm”). But the fears motivating the Individual
Plaintiffs’ self-censorship, here, are far from hypothetical. Rather, they are
grounded in the very real censorship injuries they have previously suffered totheir speech on social media, which are “evidence of the likelihood of a future
injury.” Crawford, 1 F.4th at 375 (internal quotation marks and citation

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omitted). Supported by this evidence, the Individual Plaintiffs’ selfcensorship is a cognizable, ongoing harm resulting from their past censorshipinjuries, and therefore constitutes injury-in-fact upon which those Plaintiffs
may pursue injunctive relief. Lyons, 461 U.S. at 102.
Separate from their ongoing harms, the Individual Plaintiffs haveshown a substantial risk that the injuries they suffered in the past will reoccur.
The officials suggest that there is no threat of future injury because “Twitterhas stopped enforcing its COVID-related misinformation policy.” But thisdoes nothing to mitigate the risk of future harm to the Individual Plaintiffs.
Twitter continues to enforce a robust general misinformation policy, and theIndividual Plaintiffs seek to express views—and have been censored for theirviews—on topics well beyond COVID-19, including allegations of election
fraud and the Hunter Biden laptop story.3 Plaintiffs use social-media
platforms other than Twitter—such as Facebook and YouTube—which still
enforce COVID- or health-specific misinformation policies.4 And mostfundamentally, the Individual Plaintiffs are not seeking to enjoin Twitter’scontent moderation policies (or those of any other social-media platform, forthat matter). Rather, as Plaintiffs’ counsel made clear at oral argument, what
the Individual Plaintiffs are challenging is the government’s interference with_____________________
3

Notably, Twitter maintains a separate “crisis misinformation policy” whichapplies to “public health emergencies.” Crisis misinformation policy, TWITTER (August2022), https://help.twitter.com/en/rules-and-policies/crisis-misinformation. This policy
would presumably apply to COVID-related misinformation if COVID-19 were again
classified as a Public Health Emergency, as it was until May 11, 2023. See End of the Federal
COVID-19 Public Health Emergency (PHE) Declaration, CTRS. FOR DISEASE CONTROL &PREVENTION (May 5, 2023), https://www.cdc.gov/coronavirus/2019-ncov/yourhealth/end-of-phe.html.
4Facebook Community Standards: Misinformation, META, https://transparency.fb.
com/policies/community-standards/misinformation/ (last visited August 11, 2023);
Misinformation policies, YOUTUBE, https://support.google.com/youtube/topic/10833358(last visited August 11, 2023).

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those social-media companies’ independent application of their policies. And
there is no evidence to suggest that the government’s meddling has ceased.
To the contrary, the officials’ attorney conceded at oral argument that they
continue to be in regular contact with social-media platforms concerning
content-moderation issues today.
The officials also contend that future harm is unlikely because “allthree plaintiffs who suggested that their social-media accounts had beenpermanently suspended in the past now appear to have active accounts.” But
as the Ninth Circuit recently recognized, this fact weighs in Plaintiffs’ favor.
In O’Handley v. Weber, considering this issue in the context of redressability,5
the Ninth Circuit explained:
Until recently, it was doubtful whether [injunctive] relief
would remedy [the plaintiff]’s alleged injuries because Twitter
had permanently suspended his account, and the requested
injunction [against government-imposed social-media
censorship] would not change that fact. Those doubts
disappeared in December 2022 when Twitter restored his
account.
62 F.4th 1145, 1162 (9th Cir. 2023). The same logic applies here. If the
Individual Plaintiffs did not currently have active social-media accounts, thenthere would be no risk of future government-coerced censorship of theirspeech on those accounts. But since the Individual Plaintiffs continue to be
active speakers on social media, they continue to face the very real andimminent threat of government-coerced social-media censorship.
_____________________
5

When plaintiffs seek injunctive relief, the injury-in-fact and redressability
requirements intersect. Stringer, 942 F.3d at 720. So, it makes no difference that the Ninth
Circuit addressed the issue of reinstated social-media accounts in its redressability analysis
while we address it as part of injury-in-fact. The ultimate question is whether there was asufficient threat of future injury to warrant injunctive relief.

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Because the Individual Plaintiffs have demonstrated ongoing harmfrom their past censorship as well as a substantial risk of future harm, they
have established an injury-in-fact sufficient to support their request for
injunctive relief.
B.
Turning to the second element of Article III standing, the Individual
Plaintiffs were also required to show that their injuries were “fairly
traceable” to the challenged conduct of the officials. Stringer, 942 F.3d at
720. When, as is alleged here, the “causal relation between [the claimed]injury and [the] challenged action depends upon the decision of an
independent third party . . . standing is not precluded, but it is ordinarily
substantially more difficult to establish.” California v. Texas, 141 S. Ct. 2104,
2117 (2021) (internal quotation marks and citation omitted). “To satisfy thatburden, the plaintiff[s] must show at the least ‘that third parties will likely
react in predictable ways.’” Id. (quoting Dep’t of Com. v. New York, 139 S. Ct.
2551, 2566 (2019)).
The officials contend that traceability is lacking because the Individual
Plaintiffs’ censorship was a result of “independent decisions of social-media
companies.” This conclusion, they say, is a matter of timing: social-media
platforms implemented content-moderation policies in early 2020 andtherefore the Biden Administration—which took office in January 2021—“could not be responsible for [any resulting] content moderation.” But as wejust explained, the Individual Plaintiffs do not challenge the social-media
platforms’ content-moderation policies. So, the fact that the Individual
Plaintiffs’ censorship can be traced back, at least in part, to third-party
policies that pre-date the current presidential administration is irrelevant.
The dispositive question is whether the Individual Plaintiffs’ censorship can21

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also be traced to government-coerced enforcement of those policies. We agreewith the district court that it can be.
On this issue, Department of Commerce is instructive. There, a groupof plaintiffs brought a constitutional challenge against the federal
government’s decision to reinstate a citizenship question on the 2020 census.
139 S. Ct. at 2561. Their theory of harm was that, as a result of this added
question, noncitizen households would respond to the census at lower rates
than citizen households due to fear of immigration-related consequences,which would, in turn, lead to undercounting of population in certain states
and a concomitant diminishment in political representation and loss offederal funds. Id. at 2565–66. In response, the government presented manyof the same causation arguments raised here, contending that any harm to theplaintiffs was “not fairly traceable to the [government]’s decision” but rather“depend[ed] on the independent action of third parties” (there, noncitizens
refusing to respond to the census; here, social-media companies censoring
posts) which “would be motivated by unfounded fears that the Federal
Government will itself break the law” (there, “using noncitizens’ answers
against them for law enforcement purposes”; here, retaliatory enforcement
actions or regulatory reform). Id. But a unanimous Supreme Court disagreed.
As the Court explained, the plaintiffs had “met their burden of showing thatthird parties will likely react in predictable ways to the citizenship question”
because evidence “established that noncitizen households have historically
responded to the census at lower rates than other groups” and the district
court had “not clearly err[ed] in crediting the . . . theory that the discrepancy[was] likely attributable at least in part to noncitizens’ reluctance to answer acitizenship question.” Id. at 2566.
That logic is directly applicable here. The Individual Plaintiffs
adduced extensive evidence that social-media platforms have engaged incensorship of certain viewpoints on key issues and that the government has

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engaged in a years-long pressure campaign designed to ensure that the
censorship aligned with the government’s preferred viewpoints. The district
court did not clearly err in crediting the Individual Plaintiffs’ theory that thesocial-media platforms’ censorship decisions were likely attributable at leastin part to the platforms’ reluctance to risk the adverse legal or regulatory
consequences that could result from a refusal to adhere to the government’s
directives. The Individual Plaintiffs therefore met their burden of showingthat the social-media platforms will likely react in a predictable way—i.e.,
censoring speech—in response to the government’s actions.
To be sure, there were instances where the social-media platforms
declined to remove content that the officials had identified for censorship. But
predictability does not require certainty, only likelihood. See Dep’t of Com.,
139 S. Ct. at 2566 (requiring that third parties “will likely react in predictableways”). Here, the Individual Plaintiffs presented extensive evidence of
escalating threats—both public and private—by government officials aimed
at social-media companies concerning their content-moderation decisions.
The district court thus had a sound basis upon which to find a likelihood that,
faced with unrelenting pressure from the most powerful office in the world,social-media platforms did, and would continue to, bend to the government’s
will. This determination was not, as the officials contend, based on“unadorned speculation.” Rather, it was a logical conclusion based directlyon the evidence adduced during preliminary discovery.
C.
The final element of Article III standing—redressability—required
the Individual Plaintiffs to demonstrate that it was “likely, as opposed tomerely speculative, that the [alleged] injury will be redressed by a favorable
decision.” Lujan, 504 U.S. at 561 (internal quotation marks and citation
omitted). The redressability analysis focuses on “the relationship between

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the judicial relief requested and the injury” alleged. California, 141 S. Ct. at
2115 (internal quotation marks and citation omitted).
Beginning first with the injury alleged, we have noted multiple times
now an important distinction between censorship as a result of social-media
platforms’ independent application of their content-moderation policies, on
the one hand, and censorship as a result of social-media platforms’
government-coerced application of those policies, on the other. As Plaintiffs’
counsel made clear at oral argument, the Individual Plaintiffs seek to redress
the latter injury, not the former.
The Individual Plaintiffs have not sought to invalidate social-media
companies’ censorship policies. Rather, they asked the district court torestrain the officials from unlawfully interfering with the social-media
companies’ independent application of their content-moderation policies. As
the Ninth Circuit has also recognized, there is a direct relationship between
this requested relief and the injury alleged such that redressability is satisfied.
See O’Handley, 62 F.4th at 1162.
D.
We also conclude that the State Plaintiffs are likely to establish direct
standing.6 First, state officials have suffered, and will likely continue to suffer,direct censorship on social media. For example, the Louisiana Department ofJustice posted a video showing Louisiana citizens testifying at the State
Capitol and questioning the efficacy of COVID-19 vaccines and mask
mandates. But one platform removed the video for spreading alleged“medical misinformation” and warned that any subsequent violations would_____________________
6

The State Plaintiffs also contend that they have parens patriae standing. We do
not consider this alternative argument.

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result in suspension of the state’s account. The state thereafter modified its
practices for posting on social media for fear of future censorship injury.
Similarly, another platform took down a Louisiana state legislator’s
post discussing COVID vaccines. And several videos posted by St. LouisCounty showing residents discussing COVID policies were removed, too.
Acts of this nature continue to this day. In fact, at oral argument, counsel for
the State of Louisiana explained that YouTube recently removed a video ofcounsel, speaking in his official capacity, criticizing the federal government’s
alleged unconstitutional censorship in this case.7
These acts of censorship confer standing for substantially the same
reasons as those discussed for the Individual Plaintiffs. That is, they
constitute an ongoing injury, and demonstrate a likelihood of future injury,
traceable to the conduct of the federal officials and redressable by an
injunction against them.
The federal officials admit that these instances of censorship occurred
but deny that the State Plaintiffs have standing based on the assertion that“the First Amendment does not confer rights on States.” But the Supreme
Court has made clear that the government (state and otherwise) has a“right” to speak on its own behalf. Bd. of Regents of Univ. of Wis. Sys. v.
Southworth, 529 U.S. 217, 229 (2000); see also Walker v. Tex. Div., Sons ofConfederate Veterans, Inc., 576 U.S. 200, 207–08 (2015). Perhaps that rightderives from a state’s sovereign nature, rather than from the First
Amendment itself. But regardless of the source of the right, the State_____________________
7

These actions are not limited to the State Plaintiffs. On the contrary, other states’
officials have offered evidence of numerous other instances where their posts were
removed, restricted, or otherwise censored.

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Plaintiffs sustain a direct injury when the social-media accounts of state
officials are censored due to federal coercion.
Federally coerced censorship harms the State Plaintiffs’ ability tolisten to their citizens as well. This right to listen is “reciprocal” to the State
Plaintiffs’ right to speak and constitutes an independent basis for the State
Plaintiffs’ standing here. Va. State Bd. of Pharm. v. Va. Citizens Consumer
Council, 425 U.S. 748, 757 (1976).
Officials from the States of Missouri and Louisiana testified that they
regularly use social media to monitor their citizens’ concerns. As explainedby one Louisiana official:[M]ask and vaccine mandates for students have been a very
important source of concern and public discussion by
Louisiana citizens over the last year. It is very important for me
to have access to free public discourse on social media on theseissues so I can understand what our constituents are actually
thinking, feeling, and expressing about such issues, and so I cancommunicate properly with them.
And a Missouri official testified to several examples of critical speech on an
important topic that he was not able to review because it was censored:[O]ne parent who posted on nextdoor.com (a neighborhood
networking site operated by Facebook) an online petition to
encourage his school to remain mask-optional found that his
posts were quietly removed without notifying him, and his
online friends never saw them. Another parent in the sameschool district who objected to mask mandates forschoolchildren responded to Dr. Fauci on Twitter, andpromptly received a warning from Twitter that his accountwould be banned if he did not delete the tweets criticizing Dr.
Fauci’s approach to mask mandates. These examples are justthe sort of online speech by Missourians that it is important forme and the Missouri Attorney General’s Office to be aware of.

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The Government does not dispute that the State Plaintiffs have a
crucial interest in listening to their citizens. Indeed, the CDC’s own witness
explained that if content were censored and removed from social-media
platforms, government communicators would not “have the full picture” ofwhat their citizens’ true concerns are. So, when the federal government
coerces or substantially encourages third parties to censor certain viewpoints,
it hampers the states’ right to hear their constituents and, in turn, reduces
their ability to respond to the concerns of their constituents. This injury, too,means the states likely have standing. See Va. State Bd. of Pharm., 425 U.S. at
757.
* * *
The Plaintiffs have standing because they have demonstrated ongoingharm from past social-media censorship and a likelihood of future censorship,
both of which are injuries traceable to government-coerced enforcement ofsocial-media platforms’ content-moderation policies and redressable by an
injunction against the government officials. We therefore proceed to themerits of Plaintiffs’ claim for injunctive relief.8
IV.
A party seeking a preliminary injunction must establish that (1) they
are likely to succeed on the merits, (2) there is a “substantial threat” they
will suffer an “irreparable injury” otherwise, (3) the potential injury“outweighs any harm that will result” to the other side, and (4) an injunction
will not “disserve the public interest.” Atchafalaya Basinkeeper v. U.S. Army_____________________
8

The Individual Plaintiffs’ standing and the State Plaintiffs’ standing provide
independent bases upon which the Plaintiffs’ injunctive-relief claim may proceed since
there need be only one plaintiff with standing to satisfy the requirements of Article III.
Rumsfeld, 547 U.S. at 52 n.2.

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Corps of Eng’rs, 894 F.3d 692, 696 (5th Cir. 2018) (citing La Union Del PuebloEntero v. FEMA, 608 F.3d 217, 219 (5th Cir. 2010)). Of course, a“preliminary injunction is an extraordinary remedy,” meaning it should not
be entered lightly. Id.
We start with likelihood of success. The Plaintiffs allege that federal
officials ran afoul of the First Amendment by coercing and significantly
encouraging “social-media platforms to censor disfavored [speech],”including by “threats of adverse government action” like antitrust
enforcement and legal reforms. We agree.
A.
The government cannot abridge free speech. U.S. Const.
amend. I. A private party, on the other hand, bears no such burden—it is“not ordinarily constrained by the First Amendment.” Manhattan Cmty.
Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). That changes, though,when a private party is coerced or significantly encouraged by thegovernment to such a degree that its “choice”—which if made by thegovernment would be unconstitutional, Norwood v. Harrison, 413 U.S. 455,
465 (1973)—“must in law be deemed to be that of the State.” Blum v.
Yaretsky, 457 U.S. 991, 1004 (1982); Barnes v. Lehman, 861 F.2d 1383, 1385–
36 (5th Cir. 1988).9 This is known as the close nexus test.10_____________________
9That makes sense: First Amendment rights “are protected not only against
heavy-handed frontal attack, but also from being stifled by more subtle governmental
interference.” Bates v. City of Little Rock, 361 U.S. 516, 523 (1960).
10Note that, at times, we have called this test by a few other names. See, e.g., Frazier
v. Bd. of Trustees of Nw. Miss. Reg’l Med. Ctr., 765 F.2d 1278, 1284 (5th Cir. 1985) (“the fair
attribution test”); Bass v. Parkwood Hosp., 180 F.3d 234, 242 (5th Cir. 1999) (“The statecompulsion (or coercion) test”). We settle that dispute now—it is the close nexus test. Am.
Mfrs., 526 U.S. at 52 (a “close nexus” is required). In addition, some of our past decisions

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Under that test, we “begin[] by identifying ‘the specific conduct ofwhich the plaintiff complains.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 51 (1999) (quoting Blum, 457 U.S. at 1004 (“Faithful adherence to the‘state action’ requirement . . . requires careful attention to the gravamen of
the plaintiff’s complaint.”)). Then, we ask whether the government
sufficiently induced that act. Not just any coaxing will do, though. After all,“the government can speak for itself,” which includes the right to “advocateand defend its own policies.” Southworth, 529 U.S. at 229; see also Walker,
576 U.S. at 207. But, on one hand there is persuasion, and on the other there
is coercion and significant encouragement—two distinct means of satisfying
the close nexus test. See Louisiana Div. Sons of Confederate Veterans v. City of
Natchitoches, 821 F. App’x 317, 320 (5th Cir. 2020) (per curiam)(“Responding agreeably to a request and being all but forced by the coercive
power of a governmental official are different categories of responses . . .”).
Where we draw that line, though, is the question before us today.
1.
We

start

with

encouragement.

To

constitute“significant

encouragement,” there must be such a “close nexus” between the parties
that the government is practically “responsible” for the challenged decision.
Blum, 457 U.S. at 1004 (emphasis in original). What, then, is a close nexus?
We know that “the mere fact that a business is subject to state regulation” isnot sufficient. Id. (alteration adopted) (citation omitted); Halleck, 139 S. Ct.
at 1932 (“Put simply, being regulated by the State does not make one a state
actor.”). And, it is well established that the government’s “[m]ere approvalof or acquiescence in” a private party’s actions is not enough either. Blum,_____________________
have confused this test with the joint action test, see Bass, 180 F.3d at 242, but the two areseparate tests with separate considerations.

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457 U.S. at 1004–05. Instead, for encouragement, we find that the
government must exercise some active, meaningful control over the private
party’s decision.
Take Blum v. Yaretsky. There, the Supreme Court found there was nostate action because a decision to discharge a patient—even if it followedfrom the “requir[ed] completion of a form” under New York law—was madeby private physicians, not the government. Id. at 1006–08. The plaintiff
argued that, by regulating and overseeing the facility, the government had“affirmatively command[ed]” the decision. Id. at 1005. The Court was notconvinced—it emphasized that “physicians, [] not the forms, make thedecision” and they do so under “professional standards that are notestablished by the State.” Id. Similarly, in Rendell-Baker v. Kohn the Court
found that a private school—which the government funded and placed
students at—was not engaged in state action because the conduct at issue,
namely the decision to fire someone, “[was] not . . . influenced by any state
regulation.” 457 U.S. 830, 841 (1982).
Compare that, though, to Roberts v. Louisiana Downs, Inc., 742 F.2d
221 (5th Cir. 1984). There, we held that a horseracing club’s action was
attributable to the state because the Louisiana government—through legal
and informal supervision—was overly involved in the decision to deny a racer
a stall. Id. at 224. “Something more [was] present [] than simply extensive
regulation of an industry, or passive approval by a state regulatory entity of adecision by a regulated business.” Id. at 228. Instead, the stalling decision
was made partly by the “racing secretary,” a legislatively created position
accompanied by expansive supervision from on-site state officials who had
the “power to override decisions” made by the club’s management. Id. So,even though the secretary was plainly a “private employee” paid by the club,
the state’s extensive oversight—coupled with some level of authority on thepart of the state—meant that the club’s choice was not fully independent or30

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made wholly subject to its own policies. Id. at 227–28. So, this case is on the
opposite end of the state-involvement spectrum to Blum.
Per Blum and Roberts, then, significant encouragement requires“[s]omething more” than uninvolved oversight from the government. Id. at228. After all, there must be a “close nexus” that renders the government
practically “responsible” for the decision. Blum, 457 U.S. at 1004. Taking thatin context, we find that the clear throughline for encouragement in ourcaselaw is that there must be some exercise of active (not passive), meaningful(impactful enough to render them responsible) control on the part of thegovernment over the private party’s challenged decision. Whether that is (1)entanglement in a party’s independent decision-making or (2) direct
involvement in carrying out the decision itself, the government mustencourage the decision to such a degree that we can fairly say it was thestate’s choice, not the private actor’s. See id.; Roberts, 742 F.2d at 224;
Rendell-Baker, 457 U.S. at 841 (close nexus test is met if action is “compelledor [] influenced” by the state (emphasis added)); Frazier, 765 F.2d at 1286
(significant encouragement is met when “the state has had some affirmativerole, albeit one of encouragement short of compulsion,” in the decision).11_____________________
11

This differs from the “joint action” test that we have considered in other cases.
Under that doctrine, a private party may be considered a state actor when it “operates as a‘willful participant in joint activity with the State or its agents.’” Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296 (2001) (quoting Lugar v. Edmonson Oil Co.,
457 U.S. 922, 941 (1982)). The difference between the two lies primarily in the degree ofthe state’s involvement.
Under the joint action test, the level of integration is very high—there must be“pervasive entwinement” between the parties. Id. at 298. That is integration to such a
degree that “will support a conclusion that an ostensibly private organization ought to be
charged with a public character.” Id. at 302 (emphasis added) (finding state action by athletic
association when public officials served on the association’s board, public institutions
provided most of the association’s funding, and the association’s employees received
public benefits); see also Rendell-Baker, 457 U.S. at 842 (requiring a “symbiotic

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Take Howard Gault Co. v. Texas Rural Legal Aid, Inc., 848 F.2d 544(5th Cir. 1988). There, a group of onion growers—by way of state picketinglaws and local officials—shut down a workers’ strike. Id. at 548–49. We
concluded that the growers’ “activity”—axing the strike—“while notcompelled by the state, was so significantly encouraged, both overtly andcovertly, that the choice must in law be deemed to be that of the state.” Id.
at 555 (alterations adopted) (citation and quotation marks omitted)_____________________
relationship”); Frazier, 765 F.2d at 1288 & n.22 (explaining that although the joint action
test involves the government playing a “meaningful role” in the private actor’s decision,that role must be part of a “functionally symbiotic” relationship that is so extensive that“any act of the private entity will be fairly attributable to the state even if it cannot be shownthat the government played a direct role in the particular action challenged.” (emphases
added)).
Under the close nexus test, however, the government is not deeply intertwinedwith the private actor as a whole. Instead, the state is involved in only one facet of theprivate actor’s operations—its decision-making process regarding the challenged conduct.
Roberts, 742 F.2d at 224; Howard Gault, 848 F.2d at 555. That is a much narrower level ofintegration. See Roberts, 742 F.2d at 228 (“We do not today hold that the state andLouisiana Downs are in such a relationship that all acts of the track constitute state action,
nor that all acts of the racing secretary constitute state action,” but instead that “[i]n thearea of stalling, . . . state regulation and involvement is so specific and so pervasive that[such] decisions may be considered to bear the imprimatur of the state.”). Consequently,
the showings required by a plaintiff differ. Under the joint action test, the plaintiff must
prove substantial integration between the two entities in toto. For the close nexus test, theplaintiff instead must only show significant involvement from the state in the particularchallenged action.
Still, there is admittedly some overlap between the tests. See Brentwood, 531 U.S. at
303 (“‘Coercion’ and ‘encouragement’ are like ‘entwinement’ in referring to kinds of facts
that can justify characterizing an ostensibly private action as public instead. Facts that
address any of these criteria are significant, but no one criterion must necessarily beapplied. When, therefore, the relevant facts show pervasive entwinement to the point oflargely overlapping identity, the implication of state action is not affected by pointing outthat the facts might not loom large under a different test.”). But, that is to be expected—
these tests are not “mechanical[ly]” applied. Roberts, 742 F.2d at 224.

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No. 23-30445(emphasis added).12 Specifically, “[i]t was the heavy participation of stateand state officials,” including local prosecutors and police officers, “that[brought] [the conduct] under color of state law.” Id. In other words, theofficials were directly involved in carrying out the challenged decision. Thatsatisfied the requirement that, to encourage a decision, the government must
exert some meaningful, active control over the private party’s decision.
Our reading of what encouragement means under the close nexus test
tracks with other federal courts, too. For example, the Ninth Circuit reads
the close nexus test to be satisfied when, through encouragement, thegovernment “overwhelm[s] the private party[’s]” choice in the matter,
forcing it to “act in a certain way.” O’Handley, 62 F.4th at 1158; Rawson v.
Recovery Innovations, Inc., 975 F.3d 742, 751 (9th Cir. 2020) (“A finding that
individual state actors or other state requirements literally ‘overrode’ anominally private defendant’s independent judgment might very wellprovide relevant information.”). That analysis, much like meaningful
control, asks whether a decision “was the result of [a party’s] own
independent judgment.” O’Handley, 62 F.4th at 1159.
2.
Next, we take coercion—a separate and distinct means of satisfying
the close nexus test. Generally speaking, if the government compels the_____________________
12

We note that although state-action caselaw seems to deal most often with § 1983
(i.e., the under-color-of-law prong) and the Fourteenth Amendment, there is no clear
directive from the Supreme Court that any variation in the law or government at issuechanges the state-action analysis. See Blum, 457 U.S. at 1004. In fact, we have expressly
rejected such ideas. See Miller v. Hartwood Apartments, Ltd., 689 F.2d 1239, 1243 (5th Cir.
1982) (“Although the Blum decision turned on § 1983, we find the determination of federal
action to rest on the same general principles as determinations of state action.”); Barnes,
861 F.2d at 1385 (“The analysis of state action under the Fourteenth Amendment and theanalysis of action under color of state law may coincide for purposes of § 1983.”).

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private party’s decision, the result will be considered a state action. Blum,
457 U.S. at 1004. So, what is coercion? We know that simply “being
regulated by the State does not make one a state actor.” Halleck, 139 S. Ct. at
1932. Coercion, too, must be something more. But, distinguishing coercion
from persuasion is a more nuanced task than doing the same forencouragement. Encouragement is evidenced by an exercise of active,
meaningful control, whether by entanglement in the party’s decision-making
process or direct involvement in carrying out the decision itself. Therefore,
it may be more noticeable and, consequently, more distinguishable frompersuasion. Coercion, on the other hand, may be more subtle. After all, thestate may advocate—even forcefully—on behalf of its positions. Southworth,
529 U.S. at 229.
Consider a Second Circuit case, National Rifle Ass’n v. Vullo, 49 F.4th
700 (2d Cir. 2022). There, a New York state official “urged” insurers andbanks via strongly worded letters to drop the NRA as a client. Id. at 706. In
those letters, the official alluded to reputational harms that the companies
would suffer if they continued to support a group that has allegedly caused or
encouraged “devastation” and “tragedies” across the country. Id. at 709.
Also, the official personally told a few of the companies in a closed-door
meeting that she “was less interested in pursuing the [insurers’ regulatory]
infractions . . . so long as [they] ceased” working with the NRA. Id. at 718.
Ultimately, the Second Circuit found that both the letters and the statement
did not amount to coercion, but instead “permissible government speech.”Id. at 717, 719. In reaching that decision, the court emphasized that“[a]lthough she did have regulatory authority over the target audience,” theofficial’s letters were written in a “nonthreatening tone” and usedpersuasive, non-intimidating language. Id. at 717. Relatedly, while she
referenced “adverse consequences” if the companies did not comply, they
were only “reputational risks”—there was no intimation that “punishment

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or adverse regulatory action would follow the failure to accede to therequest.” Id. (alterations adopted). As for the “so long as” statement, theSecond Circuit found that—when viewed in “context”—the official was
merely “negotiating[] and resolving [legal] violations,” a legitimate power ofher office.13 Id. at 718–19. Because she was only “carrying out her regulatory
responsibilities” and “engaging in legitimate enforcement action,” theofficial’s references to infractions were not coercive. Id. Thus, the Second
Circuit found that seemingly threatening language was actually permissible
government advocacy.
That is not to say that coercion is always difficult to identify.
Sometimes, coercion is obvious. Take Bantam Books, Inc. v. Sullivan, 372
U.S. 58 (1963). There, the Rhode Island Commission to Encourage
Morality—a state-created entity—sought to stop the distribution of obscene
books to kids. Id. at 59. So, it sent a letter to a book distributor with a list ofverboten books and requested that they be taken off the shelves. Id. at 61–64.
That request conveniently noted that compliance would “eliminate thenecessity of our recommending prosecution to the Attorney General’s
department.” Id. at 62 n.5. Per the Commission’s request, police officers
followed up to make sure the books were removed. Id. at 68. The Court
concluded that this “system of informal censorship,” which was “clearly[meant] to intimidate” the recipients through “threat of [] legal sanctions
and other means of coercion” rendered the distributors’ decision to remove
the books a state action. Id. at 64, 67, 71–72. Given Bantam Books, not-so_____________________
13

Apparently, the companies had previously issued “illegal insurance policies—
programs created and endorsed by the NRA”—that covered litigation defense costs
resulting from any firearm-related injury or death, in violation of New York law. Vullo, 49
F.4th at 718. The court reasoned that the official had the power to bring those issues to aclose.

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subtle asks accompanied by a “system” of pressure (e.g., threats and followups) are clearly coercive.
Still, it is rare that coercion is so black and white. More often, the facts
are complex and sprawling as was the case in Vullo. That means it can be quitedifficult to parse out coercion from persuasion. We, of course, are not thefirst to recognize this. In that vein, the Second Circuit has crafted a fourfactor test that distills the considerations of Bantam Books into a workablestandard. We, lacking such a device, adopt the Second Circuit’s approach asa helpful, non-exclusive tool for completing the task before us, namely
identifying when the state’s messages cross into impermissible coercion.
The Second Circuit starts with the premise that a government
message is coercive—as opposed to persuasive—if it “can reasonably beinterpreted as intimating that some form of punishment or adverse regulatory
action will follow the failure to accede to the official’s request.” Vullo, 49
F.4th at 715 (quotation marks and citation omitted). To distinguish such“attempts to coerce” from “attempts to convince,” courts look to four
factors, namely (1) the speaker’s “word choice and tone”; (2) “whether the
speech was perceived as a threat”; (3) “the existence of regulatory
authority”; and, “perhaps most importantly, (4) whether the speech refers
to adverse consequences.” Id. (citations omitted). Still, “[n]o one factor isdispositive.” Id. (citing Bantam Books, 372 U.S. at 67). For example, theSecond Circuit found in Vullo that the state officials’ communications were
not coercive because, in part, they were not phrased in an intimidatingmanner and only referenced reputational harms—an otherwise acceptableconsequence for a governmental actor to threaten. Id. at 717, 719.
The Ninth Circuit has also adopted the four-factor approach and, in
doing so, has cogently spelled out the nuances of each factor. Consider
Kennedy v. Warren, 66 F.4th 1199 (9th Cir. 2023). There, Senator Elizabeth

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Warren penned a letter to Amazon asking it to stop selling a “false or
misleading” book on COVID. Id. at 1204. The senator stressed that, by
selling the book, Amazon was “providing consumers with false andmisleading information” and, in doing so, was pursuing what she describedas “an unethical, unacceptable, and potentially unlawful course of action.”
Id. So, she asked it to do better, including by providing a “public report” on
the effects of its related sales algorithms and a “plan to modify thesealgorithms so that they no longer” push products peddling “COVID-19
misinformation.” Id. at 1205. The authors sued, but the Ninth Circuit foundno state action.
The court, lamenting that it can “be difficult to distinguish” between
persuasion and coercion, turned to the Second Circuit’s “useful nonexclusive” four-factor test. Id. at 1207. First, the court reasoned that the
senator’s letter, although made up of “strong rhetoric,” was framed merely
as a “request rather than a command.” Id. at 1208. Considering both the text
and the “tenor” of the parties’ relationship, the court concluded that theletter was not unrelenting, nor did it “suggest[] that compliance was the only
realistic option.” Id. at 1208–09.
Second, and relatedly, even if she had said as much, the senator lacked
regulatory authority—she “ha[d] no unilateral power to penalize Amazon.”Id. at 1210. Still, the sum of the second prong is more than just power. Given
that the overarching purpose of the four-factor test is to ask if the speaker’s
message can “reasonably be construed” as a “threat of adverse
consequences,” the lack of power is “certainly relevant.” Id. at 1209–10.
After all, the “absence of authority influences how a reasonable person wouldread” an official’s message. Id. at 1210; see also Hammerhead Enters., Inc. v.
Brezenoff, 707 F.2d 33, 39 (2d Cir. 1983) (finding no government coercion
where city official lacked “the power to impose sanctions on merchants who
did not respond to [his] requests”) (citing Bantam Books, 372 U.S. at 71). For

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example, in Warren, it would have been “unreasonable” to believe, given
Senator Warren’s position “as a single Senator” who was “removed fromthe relevant levers of power,” that she could exercise any authority overAmazon. 66 F.4th at 1210.
Still, the “lack of direct authority” is not entirely dispositive. Id.
Because—per the Second and Ninth Circuits—the key question is whether
a message can “reasonably be construed as coercive,” id. at 1209,14 a
speaker’s power over the recipient need not be clearly defined or readily
apparent, so long as it can be reasonably said that there is some tangible power
lurking in the background. See Okwedy v. Molinari, 333 F.3d 339, 344 (2d Cir.
2003) (finding a private party “could reasonably have believed” it would faceretaliation if it ignored a borough president’s request because “[e]ven though[he] lacked direct regulatory control,” there was an “implicit threat” that hewould “use whatever authority he does have . . . to interfere” with theparty’s cashflow). That, of course, was not present in Warren. So, the second
prong was easily resolved against state action.
Third, the senator’s letter “contain[ed] no explicit reference” to“adverse consequences.”15 66 F.4th at 1211. And, beyond that, no “threat_____________________
14

According to the Ninth Circuit, that tracks with its precedent. “[I]n Carlin
Communications, Inc. v. Mountain States Telephone & Telegraph Co., 827 F.2d 1291 (9th Cir.
1987), [they] held that a deputy county attorney violated the First Amendment bythreatening to prosecute a telephone company if it continued to carry a salacious dial-amessage service.” Warren, 66 F.4th at 1207. But, “in American Family Association, Inc. v.
City & County of San Francisco, 277 F.3d 1114 (9th Cir. 2002), [they] held that San Francisco
officials did not violate the First Amendment when they criticized religious groups’ antigay advertisements and urged television stations not to broadcast the ads.” Id. The rub, per
the court, was that “public officials may criticize practices that they would have noconstitutional ability to regulate, so long as there is no actual or threatened imposition of
government power or sanction.” Id.
15

The Ninth Circuit emphasized that officials may advocate for positions,
including by “[g]enerating public pressure to motivate others to change their behavior.”

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No. 23-30445[was] clear from the context.” Id. To be sure, an “official does not need tosay ‘or else,’” but there must be some message—even if “unspoken”—that
can be reasonably construed as intimating a threat. Id. at 1211–12. There,
when read “holistically,” the senator only implied that Amazon was“morally complicit” in bad behavior, nothing more. Id. at 1212.
Fourth, there was no indication that Amazon perceived the message
as a threat. There was “no evidence” it “changed its algorithms”—“letalone that it felt compelled to do so”—as a result of the senator’s urgings. Id.
at 1211. Admittedly, it is not required that the recipient “bow[] togovernment pressure,” but courts are more likely to find coercion if there is“some indication” that the message was “understood” as a threat, such asevidence of actual change. Id. at 1210–11. In Warren, it was apparent (andthere was no sense to the contrary) that the minor policy change the company
did make stemmed from reputational concerns, not “fears of liability in acourt of law.” Id. at 1211. Considering the above, the court found that the
senator’s message amounted to an attempt at persuasion, not coercion.
3.
To sum up, under the close nexus test, a private party’s conduct may
be state action if the government coerced or significantly encouraged it. Blum,
457 U.S. at 1004. Although this test is not mechanical, see Roberts, 742 F.2d
at 224 (noting that state action is “essentially [a] factual determination”
made by “sifting facts and weighing circumstances case by case to determine
if there is a sufficient nexus between the state and the particular aspect of the_____________________
Warren, 66 F.4th at 1208. In that vein, it dismissed any references to “potential legal
liability” because those statements do not necessarily “morph an effort to persuade into an
attempt to coerce.” Id. at 1209 (citing VDARE Found. v. City of Colo. Springs, 11 F.4th 1151,
1165 (10th Cir. 2021)). Instead, there must be “clear allegation[s] of legal violations or
threat[s] of specific enforcement actions.” Id.

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private individual’s conduct which is complained of” (citation and quotation
marks omitted)), there are clear, although not exclusive, ways to satisfy either
prong.
For encouragement, we read the law to require that a governmental
actor exercise active, meaningful control over the private party’s decision inorder to constitute a state action. That reveals itself in (1) entanglement in aparty’s independent decision-making or (2) direct involvement in carryingout the decision itself. Compare Roberts, 742 F.2d at 224 (state had such“continuous and intimate involvement” and supervision over horseracing
decision that, when coupled with its authority over the actor, it wasconsidered a state action) and Howard Gault, 848 F.2d at 555 (state eagerly,
and effectively, assisted a private party in shutting down a protest), with
Blum, 457 U.S. at 1008 (state did not sufficiently influence the decision as it
was made subject to independent standards). In any of those scenarios, thestate has such a “close nexus” with the private party that the government
actor is practically “responsible” for the decision, Blum, 457 U.S. at 1004,
because it has necessarily encouraged the private party to act and, in turn,commandeered its independent judgment, O’Handley, 62 F.4th at 1158–59.
For coercion, we ask if the government compelled the decision by,through threats or otherwise, intimating that some form of punishment will
follow a failure to comply. Vullo, 49 F.4th at 715. Sometimes, that is obvious
from the facts. See, e.g., Bantam Books, 372 U.S. at 62–63 (a mafiosi-stylethreat of referral to the Attorney General accompanied with persistentpressure and follow-ups). But, more often, it is not. So, to help distinguishpermissible persuasion from impermissible coercion, we turn to the Second(and Ninth) Circuit’s four-factor test. Again, honing in on whether thegovernment “intimat[ed] that some form of punishment” will follow a“failure to accede,” we parse the speaker’s messages to assess the (1) word
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No. 23-30445(2) the recipient’s perception; (3) the presence of authority, which includes
whether it is reasonable to fear retaliation; and (4) whether the speaker refers
to adverse consequences. Vullo, 49 F.4th at 715; see also Warren, 66 F.4th at
1207.
Each factor, though, has important considerations to keep in mind.
For word choice and tone, “[a]n interaction will tend to be more threatening
if the official refuses to take ‘no’ for an answer and pesters the recipient until
it succumbs.” Warren, 66 F.4th at 1209 (citing Bantam Books, 372 U.S. at 62–
63). That is so because we consider the overall “tenor” of the parties’
relationship. Id. For authority, there is coercion even if the speaker lacks
present ability to act so long as it can “reasonably be construed” as a threat
worth heeding. Compare id. at 1210 (single senator had no worthwhile powerover recipient, practical or otherwise), with Okwedy, 333 F.3d at 344(although local official lacked direct power over the recipient, company“could reasonably have believed” from the letter that there was “an implicit
threat” and that he “would use whatever authority he does have” against it).
As for perception, it is not necessary that the recipient “admit that it
bowed to government pressure,” nor is it even “necessary for the recipientto have complied with the official’s request”—“a credible threat may violate
the First Amendment even if ‘the victim ignores it, and the threatener folds
his tent.’” Warren, 66 F.4th at 1210 (quoting Backpage.com, LLC v. Dart, 807
F.3d 229, 231 (7th Cir. 2015)). Still, a message is more likely to be coercive if
there is some indication that the party’s decision resulted from the threat. Id.
at 1210–11. Finally, as for adverse consequences, the government need not
speak its threat aloud if, given the circumstances, it is fair to say that themessage intimates some form of punishment. Id. at 1209. If these factors
weigh in favor of finding the government’s message coercive, the coercion
test is met, and the private party’s resulting decision is a state action.

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B.
With that in mind, we turn to the case at hand. We start with “thespecific conduct of which the plaintiff complains.” Am. Mfrs., 526 U.S. at 51.
Here, that is “censor[ing] disfavored speakers and viewpoints” on social
media. The Plaintiffs allege that the “Defendants [] coerced, threatened, andpressured social-media platforms”—via “threats of adverse government
action” like increased regulation, antitrust enforcement, and changes to
Section 230—to make those censorship decisions. That campaign, per the
Plaintiffs, was multi-faceted—the officials “publicly threaten[ed] [the]companies” while they privately piled on “unrelenting pressure” via“demands for greater censorship.” And they succeeded—the platforms
censored disfavored content.
The officials do not deny that they worked alongside the platforms.
Instead, they argue that their conduct—asking or trying to persuade theplatforms to act—was permissible government speech. So, we are left withthe task of sifting out any coercion and significant encouragement from theirattempts at persuasion. Here, there were multiple speakers and messages.
Taking that in context, we apply the law to one set of officials at a time,
starting with the White House and Office of the Surgeon General.
1.
We find that the White House, acting in concert with the Surgeon
General’s office, likely (1) coerced the platforms to make their moderation
decisions by way of intimidating messages and threats of adverse
consequences, and (2) significantly encouraged the platforms’ decisions bycommandeering their decision-making processes, both in violation of theFirst Amendment.
Generally speaking, officials from the White House and the Surgeon
General’s office had extensive, organized communications with platforms.

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They met regularly, traded information and reports, and worked together ona wide range of efforts. That working relationship was, at times, sweeping.
Still, those facts alone likely are not problematic from a First-Amendment
perspective. But, the relationship between the officials and the platforms
went beyond that. In their communications with the platforms, the officials
went beyond advocating for policies, Southworth, 529 U.S. at 229, or making
no-strings-attached requests to moderate content, Warren, 66 F.4th at 1209.
Their interaction was “something more.” Roberts, 742 F.2d at 228.
We start with coercion. On multiple occasions, the officials coerced
the platforms into direct action via urgent, uncompromising demands tomoderate 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. Cf. Bantam Books, 372 U.S. at 62–63.
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’tknow 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—toretaliate against inaction. Officials threw out the prospect of legal reforms andenforcement 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 likeme”—that is, White House officials—“think you’re taking action.”
That alone may be enough for us to find coercion. Like in Bantam
Books, the officials here set about to force the platforms to remove
metaphorical books from their shelves. It is uncontested that, between the
White House and the Surgeon General’s office, government officials asked

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the platforms to remove undesirable posts and users from their platforms,
sent follow-up messages of condemnation when they did not, and publicly
called on the platforms to act. When the officials’ demands were not met, theplatforms received promises of legal regime changes, enforcement actions,and other unspoken threats. That was likely coercive. See Warren, 66 F.4th
at 1211–12.
That being said, even though coercion may have been readily
apparent here, we find it fitting to consult the Second Circuit’s four-factor
test for distinguishing coercion from persuasion. In asking whether theofficials’ messages can “reasonably be construed” as threats of adverse
consequences, we look to (1) the officials’ word choice and tone; (2) therecipient’s perception; (3) the presence of authority; and (4) whether the
speaker refers to adverse consequences. Vullo, 49 F.4th at 715; see also
Warren, 66 F.4th at 1207.
First, the officials’ demeanor. We find, like the district court, that theofficials’ communications—reading them in “context, not in isolation”—
were on-the-whole intimidating. Warren, 66 F.4th at 1208. In private
messages, the officials demanded “assurances” from the platforms that they
were moderating content in compliance with the officials’ requests, and used
foreboding, inflammatory, and hyper-critical phraseology when theyseemingly did not, like “you are hiding the ball,” you are not “trying to solve
the problem,” and we are “gravely concerned” that you are “one of the top
drivers of vaccine hesitancy.” In public, they said that the platforms were
irresponsible, let “misinformation [] poison” America, were “literally
costing . . . lives,” and were “killing people.” While officials are entitled to“express their views and rally support for their positions,” the “word choice
and tone” applied here reveals something more than mere requests. Id. at1207–08.

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Like Bantam Books—and unlike the requests in Warren—many of theofficials’ asks were “phrased virtually as orders,” 372 U.S. at 68, likerequests to remove content “ASAP” or “immediately.” The threatening“tone” of the officials’ commands, as well as of their “overall interaction”
with the platforms, is made all the more evident when we consider thepersistent nature of their messages. Generally speaking, “[a]n interaction
will tend to be more threatening if the official refuses to take ‘no’ for ananswer and pesters the recipient until it succumbs.” Warren, 66 F.4th at 1209
(citing Bantam Books, 372 U.S. at 62–63). Urgency can have the same effect.
See Backpage.com, 807 F.3d at 237 (finding the “urgency” of a sheriff’s letter,
including a follow-up, “imposed another layer of coercion due to its strong
suggestion that the companies could not simply ignore” the sheriff), cert.
denied, 137 S. Ct. 46 (2016). Here, the officials’ correspondences were both
persistent and urgent. They sent repeated follow-up emails, whether to ask
why a post or account was “still up” despite being flagged or to probe deeper
into the platforms’ internal policies. On the latter point, for example, one
official asked at least twelve times for detailed information on Facebook’s
moderation practices and activities. Admittedly, many of the officials’communications are not by themselves coercive. But, we do not take aspeaker’s communications “in isolation.” Warren, 66 F.4th at 1208. Instead,
we look to the “tenor” of the parties’ relationship and the conduct of thegovernment in context. Id. at 1209. Given their treatment of the platforms asa whole, we find the officials’ tone and demeanor was coercive, not merely
persuasive.
Second, we ask how the platforms perceived the communications.
Notably, “a credible threat may violate the First Amendment even if ‘thevictim ignores it, and the threatener folds his tent.’” Id. at 1210 (quoting
Backpage.com, 807 F.3d at 231). Still, it is more likely to be coercive if there issome evidence that the recipient’s subsequent conduct is linked to the45

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official’s message. For example, in Warren, the Ninth Circuit court
concluded that Amazon’s decision to stop advertising a specific book was“more likely . . . a response to widespread concerns about the spread of
COVID-19,” as there was “no evidence that the company changed [course]
in response to Senator Warren’s letter.” Id. at 1211. Here, there is plenty ofevidence—both direct and circumstantial, considering the platforms’
contemporaneous actions—that the platforms were influenced by theofficials’ demands. When officials asked for content to be removed, theplatforms took it down. And, when they asked for the platforms to be moreaggressive, “interven[e]” more often, take quicker actions, and modify their“internal policies,” the platforms did—and they sent emails and assurances
confirming as much. For example, as was common after public critiques, one
platform assured the officials they were “committed to addressing the []misinformation that you’ve called on us to address” after the White House
issued a public statement. Another time, one company promised to make anemployee “available on a regular basis” so that the platform could“automatically prioritize” the officials’ requests after criticism of theplatform’s response time. Yet another time, a platform said it was going to“adjust [its] policies” to include “specific recommendations for
improvement” from the officials, and emailed as much because they“want[ed] to make sure to keep you informed of our work on each” change.
Those are just a few of many examples of the platforms changing—and
acknowledging as much—their course as a direct result of the officials’
messages.
Third, we turn to whether the speaker has “authority over therecipient.” 66 F.4th at 1210. Here, that is clearly the case. As an initialmatter, the White House wields significant power in this Nation’sconstitutional landscape. It enforces the laws of our country, U.S. Const.
art. II, and—as the head of the executive branch—directs an army of federal

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agencies that create, modify, and enforce federal regulations. We can hardly
say that, like the senator in Warren, the White House is “removed from therelevant levers of power.” 66 F.4th at 1210. At the very least, as agents of theexecutive branch, the officials’ powers track somewhere closer to those of
the commission in Bantam Books—they were legislatively given the power to“investigate violations[] and recommend prosecutions.” Id. (citing Bantam
Books, 372 U.S. at 66).
But, authority over the recipient does not have to be a clearly-definedability to act under the close nexus test. Instead, a generalized, non-descript
means to punish the recipient may suffice depending on the circumstances.
As the Ninth Circuit explained in Warren, a message may be “inherently
coercive” if, for example, it was conveyed by a “law enforcement officer” or“penned by an executive official with unilateral power.” Id. (emphasis
added). In other words, a speaker’s power may stem from an inherent
authority over the recipient. See, e.g., Backpage.com, 807 F.3d 229. Thatreasoning is likely applicable here, too, given the officials’ executive status.
It is not even necessary that an official have direct power over therecipient. Even if the officials “lack[ed] direct authority” over the platforms,
the cloak of authority may still satisfy the authority prong. See Warren, 66
F.4th at 1210. After all, we ask whether a “reasonable person” would bethreatened by an official’s statements. Id. Take, for example, Okwedy. There,a borough president penned a letter to a company—which, per the official,owned a “number of billboards on Staten Island and derive[d] substantial
economic benefits from them”—and “call[ed] on [them] as a responsible
member of the business community to please contact” his “legal counsel.”
333 F.3d at 342. The Second Circuit found that, even though the official“lacked direct regulatory authority” or control over the company, an“implicit threat” flowed from his letter because he had some innate authority
to affect the company. Id. at 344. The Second Circuit noted that “[a]lthough47

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the existence of regulatory or other direct decisionmaking authority iscertainly relevant to the question of whether a government official’scomments were unconstitutionally threatening or coercive, a defendant
without such direct regulatory or decisionmaking authority can also exert animpermissible type or degree of pressure.” Id. at 343.
Consider another example, Backpage.com. There, a sheriff sent acease-and-desist letter to credit card companies—which he admittedly “hadno authority to take any official action” against—to stop doing business witha website. 807 F.3d at 230, 236. “[E]ven if the companies understood thejurisdictional constraints on [the sheriff]’s ability to proceed against them
directly,” the sheriff’s letter was still coercive because, among other reasons,it “invok[ed] the legal obligations of [the recipients] to cooperate with law
enforcement,” and the sheriff could easily “refer the credit card companies
to the appropriate authority to investigate” their dealings,16 much like a
White House official could contact the Department of Justice. Id. at 236–37.
True, the government can “appeal[]” to a private party’s “interest in
avoiding liability” so long as that reference is not meant to intimidate orcompel. Id. at 237; see also Vullo, 49 F.4th at 717–19 (statements were noncoercive because they referenced legitimate use of powers in a_____________________
16

This was true even though the financial institutions were large, sophisticated,and presumably understood the federal authorities were unlikely to prosecute thecompanies. Backpage.com, 807 F.3d at 234. As the Seventh Circuit explained, it was still in
the credit card companies’ financial interests to comply. Backpage’s measly $135 million
in annual revenue was a drop in the bucket of the financial service companies’ combined
net revenue of $22 billion. Id. at 236. Unlike credit card processors that at least made money
servicing Backpage, social-media platforms typically depend on advertisers, not their users,
for revenue. Cf. Wash. Post v. McManus, 944 F.3d 506, 516 (4th Cir. 2019) (holding
campaign finance regulations on online ads unconstitutional where they “ma[de] it
financially irrational, generally speaking, for platforms to carry political speech when other,more profitable options are available”).

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nonthreatening manner). But here, the officials’ demands that the platforms
remove content and change their practices were backed by the officials’
unilateral power to act or, at the very least, their ability to inflict “some formof punishment” against the platforms.17 Okwedy, 333 F.3d at 342 (citation
omitted) (emphasis added). Therefore, the authority factor weighs in favorof finding the officials’ messages coercive.
Finally, and “perhaps most important[ly],” we ask whether the
speaker “refers to adverse consequences that will follow if the recipient does
not accede to the request.” Warren, 66 F.4th at 1211 (citing Vullo, 49 F.4th
at 715). Explicit and subtle threats both work— “an official does not need tosay ‘or else’ if a threat is clear from the context.” Id. (citing Backpage.com,
807 F.3d at 234). Again, this factor is met.
Here, the officials made express threats and, at the very least, leaned
into the inherent authority of the President’s office. The officials madeinflammatory accusations, such as saying that the platforms were“poison[ing]” the public, and “killing people.” The platforms were told theyneeded to take greater responsibility and action. Then, they followed theirstatements with threats of “fundamental reforms” like regulatory changes
and increased enforcement actions that would ensure the platforms were
“held accountable.” But, beyond express threats, there was always an“unspoken ‘or else.’” Warren, 66 F.4th at 1212. After all, as the executive of
the Nation, the President wields awesome power. The officials were not shy
to allude to that understanding native to every American—when theplatforms

faltered,theofficials

warned

them

that

they

were

_____________________
17

Or, as the Ninth Circuit put it, “public officials may criticize practices that theywould have no constitutional ability to regulate, so long as there is no actual or threatened
imposition of government power or sanction.” Warren, 66 F.4th at 1207 (citation omitted)(emphasis added).

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No. 23-30445“[i]nternally . . . considering our options on what to do,” their “concern[s][were] shared at the highest (and I mean highest) levels of the [WhiteHouse],” and the “President has long been concerned about the power oflarge social media platforms.” Unlike the letter in Warren, the language
deployed in the officials’ campaign reveals clear “plan[s] to punish” theplatforms if they did not surrender. Warren, 66 F.4th at 1209. Compare id.,with Backpage.com, 807 F.3d at 237. Consequently, the four-factor test weighsheavily in favor of finding the officials’ messages were coercive, notpersuasive.
Notably, the Ninth Circuit recently reviewed a case that is strikingly
similar to ours. In O’Handley, officials from the California Secretary ofState’s office allegedly “act[ed] in concert” with Twitter to censor speechon the platform. 62 F.4th at 1153. Specifically, the parties had a“collaborative relationship” where officials flagged tweets and Twitter“almost invariably” took them down. Id. Therefore, the plaintiff contended,
when his election-fraud-based post was removed, California “abridged his
freedom of speech” because it had “pressured Twitter to remove disfavoredcontent.” Id. at 1163. But, the Ninth Circuit disagreed, finding the close
nexus test was not satisfied. The court reasoned that there was no clear
indication that Twitter “would suffer adverse consequences if it refused” tocomply with California’s request. Id. at 1158. Instead, it was a “purely
optional,” “no strings attached” request. Id. Consequently, “Twitter
complied with the request under the terms of its own content-moderation
policy and using its own independent judgment.” Id.18 To the Ninth Circuit,_____________________
18

The Ninth Circuit insightfully noted the difficult task of applying the coercion
test in the First Amendment context:[W]e have drawn a sharp distinction between attempts to convince andattempts to coerce. Particularly relevant here, we have held thatgovernment officials do not violate the First Amendment when they50

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there was no indication—whether via tone, content, or otherwise—that thestate would retaliate against inaction given the insubstantial relationship.
Ultimately, the officials conduct was “far from the type of coercion” seen incases like Bantam Books. Id. In contrast, here, the officials made clear that theplatforms would suffer adverse consequences if they failed to comply, throughexpress or implied threats, and thus the requests were not optional.
Given all of the above, we are left only with the conclusion that theofficials’ statements were coercive. That conclusion tracks with the decisionsof other courts. After reviewing the four-factor test, it is apparent that theofficials’ messages could “reasonably be construed” as threats. Warren, 66
F.4th at 1208; Vullo, 49 F.4th at 716. Here, unlike in Warren, the officials’“call[s] to action”—given the context and officials’ tone, the presence ofsome authority, the platforms’ yielding responses, and the officials’ express
and implied references to adverse consequences—“directly suggest[ed] thatcompliance was the only realistic option to avoid government sanction.” 66
F.4th at 1208. And, unlike O’Handley, the officials were not simply flagging
posts with “no strings attached,” 62 F.4th at 1158—they did much, muchmore.
_____________________
request that a private intermediary not carry a third party’s speech so longas the officials do not threaten adverse consequences if the intermediaryrefuses to comply. This distinction tracks core First Amendment
principles. A private party can find the government’s stated reasons formaking a request persuasive, just as it can be moved by any other speaker’s
message. The First Amendment does not interfere with thiscommunication so long as the intermediary is free to disagree with thegovernment and to make its own independent judgment about whether tocomply with the government’s request.
O’Handley, 62 F.4th at 1158. After all, consistent with their constitutional and statutory
authority, state “[a]gencies are permitted to communicate in a non-threatening mannerwith the entities they oversee without creating a constitutional violation.” Id. at 1163 (citing
Vullo, 49 F.4th at 714–19).

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Now, we turn to encouragement. We find that the officials alsosignificantly encouraged the platforms to moderate content by exercising
active, meaningful control over those decisions. Specifically, the officials
entangled themselves in the platforms’ decision-making processes, namely
their moderation policies. See Blum, 457 U.S. at 1008. That active,
meaningful control is evidenced plainly by a view of the record. The officials
had consistent and consequential interaction with the platforms andconstantly monitored their moderation activities. In doing so, they repeatedly
communicated their concerns, thoughts, and desires to the platforms. The
platforms responded with cooperation—they invited the officials tomeetings, roundups, and policy discussions. And, more importantly, they
complied with the officials’ requests, including making changes to theirpolicies.
The officials began with simple enough asks of the platforms—“canyou share more about your framework here” or “do you have data on theactual number” of removed posts? But, the tenor later changed. When theplatforms’ policies were not performing to the officials’ liking, they pressed
for more, persistently asking what “interventions” were being taken, “howmuch content [was] being demoted,” and why certain posts were not being
removed. Eventually, the officials pressed for outright change to theplatforms’ moderation policies. They did so privately and publicly. One
official emailed a list of proposed changes and said, “this is circulating aroundthe building and informing thinking.” The White House Press Secretary
called on the platforms to adopt “proposed changes” that would create amore “robust enforcement strategy.” And the Surgeon General published anadvisory calling on the platforms to “[e]valuate the effectiveness of [their]
internal policies” and implement changes. Beyond that, they relentlessly
asked the platforms to remove content, even giving reasons as to why such

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content should be taken down. They also followed up to ensure complianceand, when met with a response, asked how the internal decision was made.
And, the officials’ campaign succeeded. The platforms, incapitulation to state-sponsored pressure, changed their moderation policies.
The platforms explicitly recognized that. For example, one platform told theWhite House it was “making a number of changes”—which aligned with theofficials’ demands—as it knew its “position on [misinformation] continues
to be a particular concern” for the White House. The platform noted that, inline with the officials’ requests, it would “make sure that these additional[changes] show results—the stronger demotions in particular should deliver
real impact.” Similarly, one platform emailed a list of “commitments” after
a meeting with the White House which included policy “changes” “focusedon reducing the virality” of anti-vaccine content even when it “does notcontain actionable misinformation.” Relatedly, one platform told theSurgeon General that it was “committed to addressing the [] misinformationthat you’ve called on us to address,” including by implementing a set of
jointly proposed policy changes from the White House and the Surgeon
General.
Consequently, it is apparent that the officials exercised meaningful
control—via changes to the platforms’ independent processes—over theplatforms’ moderation decisions. By pushing changes to the platforms’
policies through their expansive relationship with and informal oversightover the platforms, the officials imparted a lasting influence on the platforms’
moderation decisions without the need for any further input. In doing so, theofficials ensured that any moderation decisions were not made in accordancewith independent judgments guided by independent standards. See id.; seealso Am. Mfrs., 526 U.S. at 52 (“The decision to withhold payment, like thedecision to transfer Medicaid patients to a lower level of care in Blum, is madeby concededly private parties, and ‘turns on . . . judgments made by private

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parties’ without ‘standards . . . established by the State.’”). Instead, they
were encouraged by the officials’ imposed standards.
In sum, we find that the White House officials, in conjunction with theSurgeon General’s office, coerced and significantly encouraged the platforms
to moderate content. As a result, the platforms’ actions “must in law bedeemed to be that of the State.” Blum, 457 U.S. at 1004.
2.
Next, we consider the FBI. We find that the FBI, too, likely (1)coerced the platforms into moderating content, and (2) encouraged them todo so by effecting changes to their moderation policies, both in violation of
the First Amendment.
We start with coercion. Similar to the White House, Surgeon General,
and CDC officials, the FBI regularly met with the platforms, shared“strategic information,” frequently alerted the social media companies tomisinformation spreading on their platforms, and monitored their content
moderation policies. But, the FBI went beyond that—they urged theplatforms to take down content. Turning to the Second Circuit’s four-factor
test, we find that those requests were coercive. Vullo, 49 F.4th at 715.
First, given the record before us, we cannot say that the FBI’s
messages were plainly threatening in tone or manner. Id. But, second, we dofind the FBI’s requests came with the backing of clear authority over theplatforms. After all, content moderation requests “might be inherently
coercive if sent by . . . [a] law enforcement officer.” Warren, 66 F.4th at 1210
(citations omitted); see also Zieper v. Metzinger, 392 F. Supp. 2d 516, 531(S.D.N.Y. 2005) (holding that a reasonable jury could find an FBI agent’s
request coercive when he asked an internet service provider to take down acontroversial video that could be “inciting a riot” because he was “an FBI
agent charged with investigating the video”); Backpage, 807 F.3d at 234

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No. 23-30445(“[C]redit card companies don’t like being threatened by a law-enforcement
official that he will sic the feds on them, even if the threat may be empty.”).
This is especially true of the lead law enforcement, investigatory, anddomestic security agency for the executive branch. Consequently, because
the FBI wielded some authority over the platforms, see Okwedy, 333 F.3d at
344, the FBI’s takedown requests can “reasonably be construed” as coercive
in nature, Warren, 66 F.4th at 1210.
Third, although the FBI’s communications did not plainly reference
adverse consequences, an actor need not express a threat aloud so long as,
given the circumstances, the message intimates that some form ofpunishment will follow noncompliance. Id. at 1209. Here, beyond its inherent
authority, the FBI—unlike most federal actors—also has tools at its disposal
to force a platform to take down content. For instance, in Zieper, an FBI agent
asked a web-hosting platform to take down a video portraying an imaginary
documentary showing preparations for a military takeover of Times Squareon the eve of the new millennium. 392 F. Supp. 2d at 520–21. In appealing to
the platform, the FBI agent said that he was concerned that the video could
be “inciting a riot” and testified that he was trying to appeal to the platform’s“‘good citizenship’ by pointing out a public safety concern.” Id. at 531. And
these appeals to the platform’s “good citizenship” worked—the platform
took down the video. Id. at 519. The Southern District of New Yorkconcluded that a reasonable jury could find that statement coercive,“particularly when said by an FBI agent charged with investigating thevideo.” Id. at 531. Indeed, the question is whether a message intimates thatsome form of punishment that may be used against the recipient, an analysis
that includes means of retaliation that are not readily apparent. See Warren,
66 F.4th at 1210.
Fourth, the platforms clearly perceived the FBI’s messages as threats.
For example, right before the 2022 congressional election, the FBI warned55

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the platforms of “hack and dump” operations from “state-sponsoredactors” that would spread misinformation through their sites. In doing so,
the FBI officials leaned into their inherent authority. So, the platforms
reacted as expected—by taking down content, including posts and accounts
that originated from the United States, in direct compliance with the request.
Considering the above, we conclude that the FBI coerced the platforms intomoderating content. But, the FBI’s endeavors did not stop there.
We also find that the FBI likely significantly encouraged the platforms
to moderate content by entangling themselves in the platforms’ decisionmaking processes. Blum, 457 U.S. at 1008. Beyond taking down posts, theplatforms also changed their terms of service in concert withrecommendations from the FBI. For example, several platforms “adjusted”
their moderation policies to capture “hack-and-leak” content after the FBI
asked them to do so (and followed up on that request). Consequently, when
the platforms subsequently moderated content that violated their newly
modified terms of service (e.g., the results of hack-and-leaks), they did not doso via independent standards. See Blum, 457 U.S. at 1008. Instead, thosedecisions were made subject to commandeered moderation policies.
In short, when the platforms acted, they did so in response to theFBI’s inherent authority and based on internal policies influenced by FBI
officials. Taking those facts together, we find the platforms’ decisions weresignificantly encouraged and coerced by the FBI.19_____________________
19

Plaintiffs and several amici assert that the FBI and other federal actors coercedor significantly encouraged the social-media companies into disseminating information thatwas favorable to the administration—information the federal officials knew was false or
misleading. We express no opinion on those assertions because they are not necessary to
our holding here.

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3.
Next, we turn to the CDC. We find that, although not plainly coercive,
the CDC officials likely significantly encouraged the platforms’ moderation
decisions, meaning they violated the First Amendment.
We start with coercion. Here, like the other officials, the CDC
regularly met with the platforms and frequently flagged content for removal.
But, unlike the others, the CDC’s requests for removal were not coercive—
they did not ask the platforms in an intimidating or threatening manner, do
not possess any clear authority over the platforms, and did not allude to any
adverse consequences. Consequently, we cannot say the platforms’
moderation decisions were coerced by CDC officials.
The same, however, cannot be said for significant encouragement.
Ultimately, the CDC was entangled in the platforms’ decision-making
processes, Blum, 457 U.S. at 1008.
The CDC’s relationship with the platforms began by defining—in“Be On the Lookout” meetings—what was (and was not) “misinformation”
for the platforms. Specifically, CDC officials issued “advisories” to theplatforms warning them about misinformation “hot topics” to be wary of.
From there, CDC officials instructed the platforms to label disfavored posts
with “contextual information,” and asked for “amplification” of approved
content. That led to CDC officials becoming intimately involved in thevarious platforms’ day-to-day moderation decisions. For example, they
communicated about how a platform’s “moderation team” reached a certain
decision, how it was “approach[ing] adding labels” to particular content, andhow it was deploying manpower. Consequently, the CDC garnered an
extensive relationship with the platforms.
From that relationship, the CDC, through authoritative guidance,
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platforms asked CDC officials to decide whether certain claims were
misinformation. In response, CDC officials told the platforms whether suchclaims were true or false, and whether information was “misleading” orneeded to be addressed via CDC-backed labels. That back-and-forth then led
to “[s]omething more.” Roberts, 742 F.2d at 228.
Specifically, CDC officials directly impacted the platforms’
moderation policies. For example, in meetings with the CDC, the platforms
actively sought to “get into [] policy stuff” and run their moderation policies
by the CDC to determine whether the platforms’ standards were “in theright place.” Ultimately, the platforms came to heavily rely on the CDC. They
adopted rule changes meant to implement the CDC’s guidance. As one
platform said, they “were able to make [changes to the ‘misinfo policies’]
based on the conversation [they] had last week with the CDC,” and they“immediately updated [their] policies globally” following another meeting.
And, those adoptions led the platforms to make moderation decisions based
entirely on the CDC’s say-so—“[t]here are several claims that we will beable to remove as soon as the CDC debunks them; until then, we are unable
to remove them.” That dependence, at times, was total. For example, one
platform asked the CDC how it should approach certain content and evenasked the CDC to double check and proofread its proposed labels.
Viewing these facts, we are left with no choice but to conclude that the
CDC significantly encouraged the platforms’ moderation decisions. Unlike
in Blum, the platforms’ decisions were not made by independent standards,
457 U.S. at 1008, but instead were marred by modification from CDC
officials. Thus, the resulting content moderation, “while not compelled by
the state, was so significantly encouraged, both overtly and covertly” by
CDC officials that those decisions “must in law be deemed to be that of thestate.” Howard Gault, 848 F.2d at 555 (alterations adopted) (internal
quotation marks and citation omitted).

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4.
Finally, we address the remaining officials—the NIAID, the State
Department, and CISA. Having reviewed the record, we find the district
court erred in enjoining these other officials. Put simply, there was not, at thisstage, sufficient evidence to find that it was likely these groups coerced orsignificantly encouragement the platforms.
For the NIAID officials, it is not apparent that they evercommunicated with the social-media platforms. Instead, the record shows, at
most, that public statements by Director Anthony Fauci and other NIAID
officials promoted the government’s scientific and policy views andattempted to discredit opposing ones—quintessential examples ofgovernment speech that do not run afoul of the First Amendment. See
Pleasant Grove City v. Summum, 555 U.S. 460, 467–68 (2009) (“[Thegovernment] is entitled to say what it wishes, and to select the views that it
wants to express.” (quotation marks and citations omitted)); Nat’lEndowment for Arts v. Finley, 524 U.S. 569, 598 (1998) (Scalia, J., concurring)(“It is the very business of government to favor and disfavor points ofview . . . .”). Consequently, with only insignificant (if any) communication(direct or indirect) with the platforms, we cannot say that the NIAID officials
likely coerced or encouraged the platforms to act.
As for the State Department, while it did communicate directly withthe platforms, so far there is no evidence these communications went beyond
educating the platforms on “tools and techniques” used by foreign actors.
There is no indication that State Department officials flagged specificcontent for censorship, suggested policy changes to the platforms, or engaged
in any similar actions that would reasonably bring their conduct within thescope of the First Amendment’s prohibitions. After all, their messages do notappear coercive in tone, did not refer to adverse consequences, and were not59Case: 23-30445

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backed by any apparent authority. And, per this record, those officials were
not involved to any meaningful extent with the platforms’ moderation
decisions or standards.
Finally, although 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.
See Okwedy, 333 F.3d at 344; O’Handley, 62 F.4th at 1158. 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’scommunication 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 notequate 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.
* * *Ultimately, we find the district court did not err in determining thatseveral officials—namely the White House, the Surgeon General, the CDC,
and the FBI—likely coerced or significantly encouraged social-media

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platforms to moderate content, rendering those decisions state actions.20 In
doing so, the officials likely violated the First Amendment.21
But, we emphasize the limited reach of our decision today. We do not
uphold the injunction against all the officials named in the complaint. Indeed,
many of those officials were permissibly exercising government speech,“carrying out [their] responsibilities,” or merely “engaging in [a] legitimate[] action.” Vullo, 49 F.4th at 718–19. That distinction is important because
the state-action doctrine is vitally important to our Nation’s operation—by
distinguishing between the state and the People, it promotes “a robust sphereof individual liberty.” Halleck, 139 S. Ct. at 1928. That is why the Supreme
Court has been reluctant to expand the scope of the doctrine. See Matal v.
Tan, 582 U.S. 218, 235 (2017) (“[W]e must exercise great caution before
extending our government-speech precedents.”). If just any relationshipwith the government “sufficed to transform a private entity into a state actor,
a large swath of private entities in America would suddenly be turned into
state actors and be subject to a variety of constitutional constraints on theiractivities.” Halleck, 139 S. Ct. at 1932. So, we do not take our decision today
lightly. But, the Supreme Court has rarely been faced with a coordinatedcampaign of this magnitude orchestrated by federal officials that jeopardized
a fundamental aspect of American life. Therefore, the district court wascorrect in its assessment—“unrelenting pressure” from certain government_____________________
20

Here, in holding that some of the officials likely coerced or sufficiently
encouraged the platforms to censor content, we pass no judgment on any joint actor orconspiracy-based state action theory.
21“With very limited exceptions, none applicable to this case, censorship—‘aneffort by administrative methods to prevent the dissemination of ideas or opinions thought
dangerous or offensive,’ as distinct from punishing such dissemination (if it falls into oneof the categories of punishable speech, such as defamation or threats) after it has
occurred—is prohibited by the First Amendment as it has been understood by the courts.”
Backpage.com, 807 F.3d at 235 (citation omitted).

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officials likely “had the intended result of suppressing millions of protected
free speech postings by American citizens.” We see no error or abuse of
discretion in that finding.22
V.
Next, we address the equities. Plaintiffs seeking a preliminary
injunction must show that irreparable injury is “likely” absent an injunction,
the balance of the equities weighs in their favor, and an injunction is in the
public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)(collecting cases).
While “[t]he loss of First Amendment freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury,” Roman Cath.
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (per curiam) (quoting
Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion)), “invocation of
the First Amendment cannot substitute for the presence of an imminent,
non-speculative irreparable injury,” Google, Inc. v. Hood, 822 F.3d 212, 228(5th Cir. 2016).
Here, the district court found that the Plaintiffs submitted enoughevidence to show that irreparable injury is likely to occur during the pendencyof the litigation. In so doing, the district court rejected the officials’
arguments that the challenged conduct had ceased and that future harm was
speculative, drawing on mootness and standing doctrines. Applying thestandard for mootness, the district court concluded that a defendant must_____________________
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Our holding today, as is appropriate under the state-action doctrine, is limited.
Like in Roberts, we narrowly construe today’s finding of state action to apply only to thechallenged decisions. See 742 F.2d at 228 (“We do not doubt that many of the actions of
the racetrack and its employees are no more than private business decisions,” but “[i]n thearea of stalling, [] state regulation and involvement is so specific and so pervasive that[such] decisions may be considered to bear the imprimatur of the state.”).

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show that “it is absolutely clear the alleged wrongful behavior could notreasonably be expected to recur” and that the officials had failed to makesuch showing here. In assessing whether Plaintiffs’ claims of future harm
were speculative and dependent on the actions of social-media companies,
the district court applied a quasi-standing analysis and found that thePlaintiffs had alleged a “substantial risk” of future harm that is not“imaginary or wholly speculative,” pointing to the officials’ ongoingcoordination with social-media companies and willingness to suppress freespeech on a myriad of hot-button issues.
We agree that the Plaintiffs have shown that they are likely to suffer
an irreparable injury. Deprivation of First Amendment rights, even for ashort period, is sufficient to establish irreparable injury. Elrod, 427 U.S. at
373; Cuomo, 141 S. Ct. at 67; Opulent Life Church v. City of Holly Springs, 697
F.3d 279, 295 (5th Cir. 2012).
The district court was right to be skeptical of the officials’ claims thatthey had stopped all challenged conduct. Cf. Speech First, Inc. v. Fenves, 979
F.3d 319, 328 (5th Cir. 2020) (“[A] defendant’s voluntary cessation of achallenged practice does not deprive a federal court of its power to determine
the legality of the practice, even in cases in which injunctive relief issought.”). But, the district court’s use of a “not imaginary or speculative”
standard in the irreparable harm context is inconsistent with binding case law.
See Winter, 555 U.S. at 22 (“Issuing a preliminary injunction based only on a
possibility of irreparable harm is inconsistent with our characterization of
injunctive relief as an extraordinary remedy that may only be awarded upona clear showing that the plaintiff is entitled to such relief.” (citation omitted)(emphasis added)). The correct standard is whether a future injury is“likely.” Id. But, because the Plaintiffs sufficiently demonstrated that theirFirst Amendment interests are either threatened or impaired, they have met
this standard. See Opulent Life Church, 697 F.3d at 295 (citing 11A Charles

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Alan Wright et al., Federal Practice and Procedure § 2948.1 (2d ed. 1995)(“When an alleged deprivation of a constitutional right is involved, mostcourts hold that no further showing of irreparable injury is necessary.”)).
Indeed, the record shows, and counsel confirmed at oral argument, that theofficials’ challenged conduct has not stopped.
Next, we turn to whether the balance of the equities warrants an
injunction and whether such relief is in the public interest. Where thegovernment is the opposing party, harm to the opposing party and the public
interest “merge.” Nken v. Holder, 556 U.S. 418, 435 (2009).
The district court concluded that the equities weighed in favor of
granting the injunction because the injunction maintains the “constitutional
structure” and Plaintiffs’ free speech rights. The officials argue that the
district court gave short shrift to their assertions that the injunction could
limit the Executive Branch’s ability to “persuade” the American public,
which raises separation-of-powers issues.
Although both Plaintiffs and the officials assert that their ability to
speak is affected by the injunction, the government is not permitted to use
the government-speech doctrine to “silence or muffle the expression of
disfavored viewpoints.” Matal, 582 U.S. at 235.
It is true that the officials have an interest in engaging with socialmedia companies, including on issues such as misinformation and election
interference. But the government is not permitted to advance these interests
to the extent that it engages in viewpoint suppression. Because “[i]njunctions
protecting First Amendment freedoms are always in the public interest,” theequities weigh in Plaintiffs’ favor. Opulent Life Church, 697 F.3d at 298(quotation marks and citations omitted).

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While the officials raise legitimate concerns that the injunction could
sweep in lawful speech, we have addressed those concerns by modifying thescope of the injunction.
VI.
Finally, we turn to the language of the injunction itself. An injunction“is overbroad if it is not ‘narrowly tailored to remedy the specific action
which gives rise to the order’ as determined by the substantive law at issue.”Scott v. Schedler, 826 F.3d 207, 211 (5th Cir. 2016) (alterations adopted)(quoting John Doe #1 v. Veneman, 380 F.3d 807, 818 (5th Cir. 2004)). Thisrequirement that a “plaintiff’s remedy must be tailored to redress theplaintiff’s particular injury” is in recognition of a federal court’s“constitutionally prescribed role . . . to vindicate the individual rights of thepeople appearing before it,” not “generalized partisan preferences.” Gill v.
Whitford, 138 S. Ct. 1916, 1933–34 (2018).
In addition, injunctions cannot be vague. “Every order granting an
injunction . . . must: (A) state the reasons why it issued; (B) state its terms
specifically; and (C) describe in reasonable detail—and not by referring to
the complaint or other document—the act or acts restrained or required.”Fed. R. Civ. P. 65(d)(1). The Supreme Court has explained:[T]he specificity provisions of Rule 65(d) are no mere technicalrequirements. The Rule was designed to prevent uncertainty
and confusion on the part of those faced with injunctive orders,
and to avoid the possible founding of a contempt citation on adecree too vague to be understood. Since an injunctive orderprohibits conduct under threat of judicial punishment, basic
fairness requires that those enjoined receive explicit notice of
precisely what conduct is outlawed.

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Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (citations omitted).
To be sure, “[t]he specificity requirement is not unwieldy,” Meyer v.
Brown & Root Construction Co., 661 F.2d 369, 373 (5th Cir. 1981), and“elaborate detail is unnecessary,” Islander E. Rental Program v. Barfield, No.
96-41275, 1998 WL 307564, at *4 (5th Cir. Mar. 24, 1998). But still, “anordinary person reading the court’s order should be able to ascertain fromthe document itself exactly what conduct is proscribed.” Louisiana v. Biden,
45 F.4th at 846 (citation omitted).
The preliminary injunction here is both vague and broader thannecessary to remedy the Plaintiffs’ injuries, as shown at this preliminaryjuncture. As an initial matter, it is axiomatic that an injunction is overbroad
if it enjoins a defendant from engaging in legal conduct. Nine of thepreliminary injunction’s ten prohibitions risk doing just that. Moreover,many of the provisions are duplicative of each other and thus unnecessary.
Prohibitions one, two, three, four, five, and seven prohibit the officials
from engaging in, essentially, any action “for the purpose of urging,encouraging, pressuring, or inducing” content moderation. But “urging,encouraging, pressuring” or even “inducing” action does not violate theConstitution unless and until such conduct crosses the line into coercion orsignificant encouragement. Compare Walker, 576 U.S. at 208 (“[A]s a generalmatter, when the government speaks it is entitled to promote a program, toespouse a policy, or to take a position.”), Finley, 524 U.S. at 598 (Scalia, J.,
concurring in judgment) (“It is the very business of government to favor anddisfavor points of view . . . .”), and Vullo, 49 F.4th at 717 (holding statements“encouraging” companies to evaluate risk of doing business with the plaintiff
did not violate the Constitution where the statements did not “intimate thatsome form of punishment or adverse regulatory action would follow the
failure to accede to the request”), with Blum, 457 U.S. at 1004, and66

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O’Handley, 62 F.4th at 1158 (“In deciding whether the government may urge
a private party to remove (or refrain from engaging in) protected speech, wehave drawn a sharp distinction between attempts to convince and attempts
to coerce.”). These provisions also tend to overlap with each other, barring
various actions that may cross the line into coercion. There is no need to try
to spell out every activity that the government could possibly engage in that
may run afoul of the Plaintiffs’ First Amendment rights as long the unlawful
conduct is prohibited.
The eighth, ninth, and tenth provisions likewise may be unnecessary
to ensure Plaintiffs’ relief. A government actor generally does not violate theFirst Amendment by simply “following up with social-media companies”
about content-moderation, “requesting content reports from social-media
companies” concerning their content-moderation, or asking social media
companies to “Be on The Lookout” for certain posts.23 Plaintiffs have notcarried their burden to show that these activities must be enjoined to afford
Plaintiffs full relief.
These provisions are vague as well. There would be no way for afederal official to know exactly when his or her actions cross the line frompermissibly communicating with a social-media company to impermissibly“urging, encouraging, pressuring, or inducing” them “in any way.” See Scott,826 F.3d at 209, 213 (“[a]n injunction should not contain broad
generalities”); Islander East, 1998 WL 307564, at *4 (finding injunction
against “interfering in any way” too vague). Nor does the injunction define_____________________
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While these activities, standing alone, are not violative of the First Amendment
and therefore must be removed from the preliminary injunction, we note that these
activities may violate the First Amendment when they are part of a larger scheme ofgovernment coercion or significant encouragement, and neither our opinion nor themodified injunction should be read to hold otherwise.

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No. 23-30445“Be on The Lookout” or “BOLO.” That, too, renders it vague. See
Louisiana v. Biden, 45 F.4th at 846 (holding injunction prohibiting the federal
government from “implementing the Pause of new oil and natural gas leases
on public lands or in offshore waters as set forth in [the challenged Executive
Order]” was vague because the injunction did not define the term “Pause”
and the parties had each proffered different yet reasonable interpretations of
the Pause’s breadth).
While helpful to some extent, the injunction’s carveouts do not solve
its clarity and scope problems. Although they seem to greenlight legal speech,
the carveouts, too, include vague terms and appear to authorize activities thatthe injunction otherwise prohibits on its face. For instance, it is not clear
whether the Surgeon General could publicly urge social media companies toensure that cigarette ads do not target children. While such a statement could
meet the injunction’s exception for “exercising permissible public
government speech promoting government policy or views on matters of
public concern,” it also “urg[es] . . . in any manner[] social-media companies
to change their guidelines for removing, deleting, suppressing, or reducing
content containing protected speech.” This example illustrates both the
injunction’s overbreadth, as such public statements constitute lawful speech,
see Walker, 576 U.S. at 208, and vagueness, because the government-speech
exception is ill-defined, see Scott, 826 F.3d at 209, 213 (vacating injunction
requiring the Louisiana Secretary of State to maintain in force his “policies,
procedures, and directives” related to the enforcement of the National Voter
Registration Act, where “policies, procedures, and directives” were notdefined). At the same time, given the legal framework at play, these carveouts
are likely duplicative and, as a result, unnecessary.
Finally, the fifth prohibition—which bars the officials from“collaborating, coordinating, partnering, switchboarding, and/or jointly
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Stanford Internet Observatory, or any like project or group” to engage in thesame activities the officials are proscribed from doing on their own— may
implicate private, third-party actors that are not parties in this case and that
may be entitled to their own First Amendment protections. Because theprovision fails to identify the specific parties that are subject to theprohibitions, see Scott, 826 F.3d at 209, 213, and “exceeds the scope of theparties’ presentation,” OCA-Greater Houston v. Texas, 867 F.3d 604, 616(5th Cir. 2017), Plaintiffs have not shown that the inclusion of these third
parties is necessary to remedy their injury. So, this provision cannot stand at
this juncture. See also Alexander v. United States, 509 U.S. 544, 550 (1993)(“[C]ourt orders that actually [] forbid speech activities are classic examples
of prior restraints.”). For the same reasons, the injunction’s application to“all acting in concert with [the officials]” is overbroad.
We therefore VACATE prohibitions one, two, three, four, five,seven, eight, nine, and ten of the injunction.
That leaves provision six, which bars the officials from “threatening,pressuring, or coercing social-media companies in any manner to remove,delete, suppress, or reduce posted content of postings containing protected
free speech.” But, those terms could also capture otherwise legal speech. So,
the injunction’s language must be further tailored to exclusively target illegal
conduct and provide the officials with additional guidance or instruction onwhat behavior is prohibited. To be sure, our standard practice is to remand
to the district court to tailor such a provision in the first instance. See Scott,826 F.3d at 214. But this is far from a standard case. In light of the expedited
nature of this appeal, we modify the injunction’s remaining provisionourselves.
In doing so, we look to the Seventh Circuit’s approach in
Backpage.com, 807 F.3d at 239. There, the Seventh Circuit held that a county

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sheriff violated Backpage’s First Amendment rights by demanding that
financial service companies cut ties with Backpage in an effort to “crush” theplatform (an online forum for “adult” classified ads). Id. at 230. To remedy
the constitutional violation, the court issued the following injunction:
Sheriff Dart, his office, and all employees, agents, or others
who are acting or have acted for or on behalf of him, shall takeno actions, formal or informal, to coerce or threaten credit cardcompanies, processors, financial institutions, or other third
parties with sanctions intended to ban credit card or otherfinancial services from being provided to Backpage.com.
Id. at 239.
Like the Seventh Circuit’s preliminary injunction in Backpage.com, we
endeavor to modify the preliminary injunction here to target the coercive
government behavior with sufficient clarity to provide the officials notice ofwhat activities are proscribed. Specifically, prohibition six of the injunctionis MODIFIED to state:
Defendants, and their employees and agents, shall take noactions, formal or informal, directly or indirectly, to coerce orsignificantly encourage social-media companies to remove,delete, suppress, or reduce, including through altering theiralgorithms, posted social-media content containing protected
free speech. That includes, but is not limited to, compelling theplatforms to act, such as by intimating that some form ofpunishment will follow a failure to comply with any request, or
supervising, directing, or otherwise meaningfully controllingthe social-media companies’ decision-making processes.

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Under the modified injunction, the enjoined Defendants cannot
coerce or significantly encourage a platform’s content-moderation decisions.
Such conduct includes threats of adverse consequences—even if thosethreats are not verbalized and never materialize—so long as a reasonable
person would construe a government’s message as alluding to some form ofpunishment. That, of course, is informed by context (e.g., persistentpressure, perceived or actual ability to make good on a threat). The
government cannot subject the platforms to legal, regulatory, or economic
consequences (beyond reputational harms) if they do not comply with a given
request. See Bantam Books, 372 U.S. at 68; Okwedy, 333 F.3d at 344. The
enjoined Defendants also cannot supervise a platform’s content moderation
decisions or directly involve themselves in the decision itself. Social-media
platforms’ content-moderation decisions must be theirs and theirs alone. See
Blum, 457 U.S. at 1008. This approach captures illicit conduct, regardless of
its form.
Because the modified injunction does not proscribe Defendants from
activities that could include legal conduct, no carveouts are needed. There
are two guiding inquiries for Defendants. First, is whether their action could
be reasonably interpreted as a threat to take, or cause to be taken, an official
action against the social-media companies if the companies decline
Defendants’ request to remove, delete, suppress, or reduce protected freespeech on their platforms. Second, is whether Defendants have exercised
active, meaningful control over the platforms’ content-moderation decisions
to such a degree that it inhibits the platforms’ independent decision-making.
To be sure, this modified injunction still “restricts government
communications not specifically targeted to particular content posted byplaintiffs themselves,” as the officials protest. But that does not mean it is still
overbroad. To the contrary, an injunction “is not necessarily made overbroadby extending benefit or protection to persons other than prevailing parties in71

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the lawsuit—even if it is not a class action—if such breadth is necessary togive prevailing parties the relief to which they are entitled.” Pro. Ass’n of Coll.
Educators, TSTA/NEA v. El Paso Cnty. Cmty. Coll. Dist., 730 F.2d 258, 274(5th Cir. 1984) (citations omitted); see also Bresgal v. Brock, 843 F.2d 1163,
1170–71 (9th Cir. 1987). Such breadth is plainly necessary, if not inevitable,
here. The officials have engaged in a broad pressure campaign designed tocoerce social-media companies into suppressing speakers, viewpoints, andcontent disfavored by the government. The harms that radiate from suchconduct extend far beyond just the Plaintiffs; it impacts every social-media
user. Naturally, then, an injunction against such conduct will afford
protections that extend beyond just Plaintiffs, too. Cf. Feds for Med. Freedomv. Biden, 63 F.4th 366, 387 (5th Cir. 2023) (“[A]n injunction [can] benefit
non-parties as long as that benefit [is] merely incidental.” (internal quotation
marks and citation omitted)).
As explained in Part IV above, the district court erred in finding that
the NIAID Officials, CISA Officials, and State Department Officials likely
violated Plaintiffs’ First Amendment rights. So, we exclude those parties
from the injunction. Accordingly, the term “Defendants” as used in thismodified provision is defined to mean only the following entities and officials
included in the original injunction:
The following members of the Executive Office of the
President of the United States: White House Press Secretary,
Karine Jean-Pierre; Counsel to the President, Stuart F. Delery;
White House Partnerships Manager, Aisha Shah; Special
Assistant to the President, Sarah Beran; Administrator of theUnited States Digital Service within the Office of Management
and Budget, Mina Hsiang; White House National Climate
Advisor, Ali Zaidi; White House Senior COVID-19 Advisor,
formerly Andrew Slavitt; Deputy Assistant to the President72

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and Director of Digital Strategy, formerly Rob Flaherty; WhiteHouse COVID-19 Director of Strategic Communications andEngagement, Dori Salcido; White House Digital Director for
the COVID-19 Response Team, formerly Clarke Humphrey;
DeputyDirectorofStrategic

Communications

andEngagement of the White House COVID-19 Response Team,
formerly Benjamin Wakana; Deputy Director for Strategic
Communications and External Engagement for the WhiteHouse COVID-19 Response Team, formerly Subhan Cheema;
White House COVID-19 Supply Coordinator, formerly
Timothy W. Manning; and Chief Medical Advisor to the
President, Dr. Hugh Auchincloss, along with their directors,
administrators and employees. Surgeon General Vivek H.
Murthy; and Chief Engagement Officer for the Surgeon
General, Katharine Dealy, along with their directors,
administrators and employees. The Centers for Disease
Control and Prevention (“CDC”), and specifically thefollowing employees: Carol Y. Crawford, Chief of the DigitalMedia Branch of the CDC Division of Public Affairs; Jay
Dempsey, Social-media Team Leader, Digital Media Branch,
CDC Division of Public Affairs; and Kate Galatas, CDC
Deputy Communications Director. And the Federal Bureau of
Investigation (“FBI”), and specifically the following
employees: Laura Dehmlow, Section Chief, FBI Foreign
Influence Task Force; and Elvis M. Chan, Supervisory Special
Agent of Squad CY-1 in the FBI San Francisco Division.

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VII.
The district court’s judgment is AFFIRMED with respect to theWhite House, the Surgeon General, the CDC, and the FBI, and
REVERSED as to all other officials. The preliminary injunction is
VACATED except for prohibition number six, which is MODIFIED as
set forth herein. The Appellants’ motion for a stay pending appeal is
DENIED as moot. The Appellants’ request to extend the administrative
stay for ten days following the date hereof pending an application to theSupreme Court of the United States is GRANTED, and the matter is
STAYED.

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