United States Court of Appeals

for the Fifth Circuit ____________

No. 23-30445

____________

State of Missouri; State of Louisiana; Aaron Kheriaty; 

Martin Kulldorff; Jim Hoft; Jayanta Bhattacharya; 

Jill Hines, 

Plaintiffs—Appellees, 

versus

Joseph 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 

______________________________

ON PETITION FOR REHEARING

Before Clement, Elrod, and Willett, Circuit Judges.

Per Curiam: 

The petition for panel rehearing is GRANTED. We WITHDRAW

our previous opinion and substitute the following. 

* * *

United States Court of Appeals

Fifth Circuit

FILED

October 3, 2023

Lyle W. Cayce

Clerk

Case: 23-30445 Document: 00516918271 Page: 1 Date Filed: 10/03/2023
No. 23-30445

2

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 to 

some of those officials. So, we AFFIRM in part, REVERSE in part, 

VACATE the injunction in part, and MODIFY the injunction in part.

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 their 

sites. And, the platforms seemingly complied. They gave the officials access 

to an expedited reporting system, downgraded or removed flagged posts, and 

deplatformed users. The platforms also changed their internal policies to 

capture more flagged content and sent steady reports on their moderation 

activities to the officials. That went on through the COVID-19 pandemic, the 

2022 congressional election, and continues to this day. 

Enter this lawsuit. The Plaintiffs—three doctors, a news website, a 

healthcare activist, and two states1

—had posts and stories removed or 

_____________________

1 Specifically, the Plaintiffs are (1) Jayanta Bhattacharya and Martin Kulldorff, two 

epidemiologists 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 their 

citizens and the free flow of information. Bhattacharya, Kulldorff, Hines, Kheriaty, and 

Hoft, collectively, are referred to herein as the “Individual Plaintiffs.” Missouri and 

Louisiana, together, are referred to as the “State Plaintiffs.”

Case: 23-30445 Document: 00516918271 Page: 2 Date Filed: 10/03/2023
No. 23-30445

3

downgraded by the platforms. Their content touched on a host of divisive

topicslike theCOVID-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, and 

pressured [the] social-media platforms to censor [them]” through private 

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, the 

CDC, the FBI, the National Institute of Allergy and Infectious Diseases 

(NIAID), the Cybersecurity and Infrastructure Security Agency (CISA), and 

_____________________

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 of 

Allergy 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 for 

Communications at the Census Bureau; (12) the Department of Commerce; (13) the 

Secretary of the Department of Homeland Security; (14) the Senior Counselor to the 

Secretary 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 of 

Commerce; and (27) the Election Assistance Commission. The Plaintiffs also sued a host 

of various advisors, officials, and deputies in the White House, the FDA, the CDC, the 

Census Bureau, the HHS, and CISA. Note that some of these officials were not enjoined 

and, therefore, are not mentioned again in this opinion.

Case: 23-30445 Document: 00516918271 Page: 3 Date Filed: 10/03/2023
No. 23-30445

4

the Department of State. We briefly review—per the district court’s order 

and the record—those officials’ conduct.

A. 

Considering their close cooperation and the ministerial ecosystem, we 

take the White House and the Surgeon General’s office together. Officials 

from both offices began communicating with social media companies—

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 in 

this same [] genre” so that they could be removed, too. In another, an official 

told a platform to “remove [an] account immediately”—he could not “stress 

the degree to which this needs to be resolved immediately.” Often, those 

requests for removal were met.

But, the White House officials did not only flag content. Later that 

year, they started monitoring the platforms’ moderation activities, too. In 

that vein, the officials asked for—and received—frequent updates from the 

platforms. Those updates revealed, however, that the platforms’ policies 

were not clear-cut and did not always lead to content being demoted. So, the 

White 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 much 

content [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 

Case: 23-30445 Document: 00516918271 Page: 4 Date Filed: 10/03/2023
No. 23-30445

5

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 like 

that happen,” and maintained that “I don’t think our position is that you 

should remove vaccine hesitant stuff,” but “slowing it down seems 

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 another 

gave 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 to 

demand more from the platforms, they seemingly stepped-up their efforts to 

appease the officials. When there was confusion, the platforms would call to 

“clear up” any “misunderstanding[s]” and provide data detailing their 

moderation 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, when 

pressed about not “level[ing]” with the White House, told an official that he

would “continue to do it to the best of [his] ability, and [he will] expect [the 

official]to hold [him] accountable.” Similarly, that platform told the Surgeon 

General that “[w]e’re [] committed to addressing the [] misinformation that 

you’ve called on us to address.” The platforms were apparently eager to stay 

in the officials’ good graces. For example, in an effort to get ahead of a 

negative news story, Facebook preemptively reached out to the White House 

Case: 23-30445 Document: 00516918271 Page: 5 Date Filed: 10/03/2023
No. 23-30445

6

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 the 

platforms 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 “last 

time we did this dance, it ended in an insurrection.” In another message, an 

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 another 

instance, 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, in 

large part, on your platform.”

To ensure that problematic content was being taken down, the

officials—via meetings and emails—pressed the platforms to change their 

moderation 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 stronger misinformation 

“monitoring” programs, redesigning their algorithms to “avoid amplifying 

misinformation,” targeting “repeat offenders,” “[a]mplify[ing]

communications from trusted . . . experts,” and “[e]valuat[ing] the 

effectiveness of internal policies.”

Case: 23-30445 Document: 00516918271 Page: 6 Date Filed: 10/03/2023
No. 23-30445

7

The platforms apparently yielded. They not only continued to take 

down content the officials flagged, and provided requested data to the White 

House, but they also changed their moderation policies expressly in 

accordance with the officials’ wishes. For example, one platform said it knew 

its “position on [misinformation] continues to be a particular concern” for 

the White House, and said it was “making a number of changes” to capture 

and downgrade a “broader set” of flagged content. The platform noted that,

in line with the officials’ requests, it would “make sure that these additional 

[changes] show results—the stronger demotions in particular should deliver 

real impact.” Another time, a platform represented that it was going to

change its moderation policies and activities to fit with express guidance from 

the 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 with 

the 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 even 

when 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]e 

think there’s considerably more we can do in partnership with you and your 

teams 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 

Case: 23-30445 Document: 00516918271 Page: 7 Date Filed: 10/03/2023
No. 23-30445

8

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 was 

halted, the White House asked a platform to—through

“hard . . . intervention[s]” and “algorithmic amplification”—“make sure 

that 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 the 

White 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 of 

amplifying 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 was 

encouraging vaccine hesitancy, which was a “concern that is shared at the 

highest (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 a 

user’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 the 

Case: 23-30445 Document: 00516918271 Page: 8 Date Filed: 10/03/2023
No. 23-30445

9

company’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 me 

think 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. That 

month, in a joint press conference with the Surgeon General’s office, the

White House Press Secretary said that the White House “expect[s] more” 

from the platforms, including that they “consistently take action against 

misinformation” and “operate with greater transparency and 

accountability.” 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 White 

House, “remain active” on a few platforms.

The Surgeon General also spoke at the press conference. He said the 

platforms 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 greater 

transparency 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 to 

Case: 23-30445 Document: 00516918271 Page: 9 Date Filed: 10/03/2023
No. 23-30445

10

play to improve [] health outcomes.” The next day, President Biden said that 

the 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 good 

place” with the White House. It sought to “better understand . . . what the 

White 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 “make 

sure [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’ “specific 

recommendations for improvement,” and the platform “want[ed] to make 

sure 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 as problematic 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 the 

past, but that changed. Facebook also made other pages that “had not yet 

met their removal thresholds[] more difficult to find on our platform,” and 

Case: 23-30445 Document: 00516918271 Page: 10 Date Filed: 10/03/2023
No. 23-30445

11

promised to send updates and take more action. A month later, members of 

the disinfo dozen were deplatformed across several sites. Fourth, the 

platforms 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 the 

following year, the White House Press Secretary stressed that, in regard to 

problematic users on the platforms, the “President has long been concerned 

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 with 

the platforms continues to this day. 

B. 

Next, we turn to the CDC. Much like the White House officials, the 

CDC 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 that 

was 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 the 

amplification-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 

Case: 23-30445 Document: 00516918271 Page: 11 Date Filed: 10/03/2023
No. 23-30445

12

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 based 

on the conversation we had last week with the CDC.” In another email, a 

platform noted “several updates to our COVID-19 Misinformation and 

Harm 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, the 

platforms’ moderation decisions. The platforms sought answers from the 

officials as to whether certain controversial claims were “true or false” and 

whether 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 are 

several 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 

Case: 23-30445 Document: 00516918271 Page: 12 Date Filed: 10/03/2023
No. 23-30445

13

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 from 

ongoing investigations.

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 of 

service” 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.

Next, we look at CISA. CISA—working in close connection with the 

FBI—held regular industry meetings with the platforms concerning their 

moderation policies, pushing them to adopt CISA’s proposed practices for 

addressing “mis-, dis-, and mal-information.” CISA also engaged in 

“switchboarding” operations, meaning, at least in theory, that CISA officials 

acted as an intermediary for third parties 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] 

Case: 23-30445 Document: 00516918271 Page: 13 Date Filed: 10/03/2023
No. 23-30445

14

deemed to be disinformation aimed at their jurisdiction” and, in turn, CISA 

would “share [that] with the appropriate social media compan[y].” But, 

CISA’s role went beyond mere information sharing. Like the CDC for 

COVID-related claims, CISA told the platforms whether certain electionrelated claims were true or false. CISA’s actions apparently led to 

moderation policies being altered and content being removed or demoted by 

the recipient platforms.

E.

Finally, we briefly discuss the remaining offices, namely the NIAID

and the State Department. Generally speaking, the NIAID did not have 

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.

The State Department, on the other hand, communicated directly 

with the platforms. It hosted meetings that were meant to “facilitate [] 

communication” with the platforms. In those meetings, it educated the 

platforms on the “tools and techniques” that “malign” or “foreign 

propaganda actors” (e.g., terrorist groups, China) were using to spread 

misinformation. Generally, the State Department officials did not flag 

content, suggest policy changes, or reciprocally receive data during those 

meetings.

* * *

Case: 23-30445 Document: 00516918271 Page: 14 Date Filed: 10/03/2023
No. 23-30445

15

Relying on the above record, the district court concluded that the 

officials, 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 not

comply. And, it worked—that “unrelenting pressure” forced the platforms 

to act and take down users’ content. Notably, though, those actions were not 

limited to private actors. Accounts run by state officials were often subject to

censorship, 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, a 

platform took down a Louisiana state legislator’s post discussing COVID 

vaccines. Similarly, one platform removed several videos, namely 

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 the 

First Amendment, at the expense of both private and governmental actors.

In addition, the court found that considerations of equity weighed in 

favor 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-sovereign 

interests 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 of 

content containing protected free speech.” The officials appeal. 

Case: 23-30445 Document: 00516918271 Page: 15 Date Filed: 10/03/2023
No. 23-30445

16

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 the 

challenged action of the defendant and [3] likely to be redressed by [their] 

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 of 

standing 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’ that 

is ‘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 the 

Case: 23-30445 Document: 00516918271 Page: 16 Date Filed: 10/03/2023
No. 23-30445

17

imminence 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 constitute 

an 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, 

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 their 

roundtable 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 to 

his views on vaccine mandates and lockdowns, and that a video of one of his 

interviews concerning vaccine mandates was removed from YouTube (but 

ultimately 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 

Case: 23-30445 Document: 00516918271 Page: 17 Date Filed: 10/03/2023
No. 23-30445

18

false or misinformation, and a YouTube video concerning voter fraud was 

removed. Hoft’s declaration included photographic proof of the Twitter and 

Facebook censorship he had suffered. And Hines’s declaration swears that 

her personal Facebook account was suspended and the Facebook posts of her 

organization, Health Freedom Louisiana, were censored and removed for 

their 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 the 

harm from these past injuries is ongoing or that similar injury is likely to 

reoccur in the future, as required for standing to pursue injunctive relief. We 

disagree with both assertions. 

All five Individual Plaintiffs have stated in sworn declarations that 

their prior censorship has caused them to self-censor and carefully word 

social-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, to 

avoid getting banned” and that he intentionally “limit[s] what [he] say[s]

publicly,” even “on topics where [he] ha[s] specific scientific and ethical 

expertise 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 censorship 

policies.” These lingering effects of past censorship must be factored into the 

standing 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, a 

Case: 23-30445 Document: 00516918271 Page: 18 Date Filed: 10/03/2023
No. 23-30445

19

constitutionally sufficient injury. See Laird v. Tatum, 408 U.S. 1, 11 (1972). 

True, “to confer standing, allegations of chilled speech or self-censorship 

must 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 of 

hypothetical 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 to 

their 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 

omitted). Supported by this evidence, the Individual Plaintiffs’ selfcensorship is a cognizable, ongoing harm resulting from their past censorship 

injuries, 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 have 

shown 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 “Twitter 

has stopped enforcing its COVID-related misinformation policy.” But this 

does nothing to mitigate the risk of future harm to the Individual Plaintiffs. 

Twitter continues to enforce a robust general misinformation policy, and the 

Individual Plaintiffs seek to express views—and have been censored for their 

views—on topics well beyond COVID-19, including allegations of election 

fraud and the Hunter Biden laptop story.3 Plaintiffs use social-media 

_____________________

3 Notably, Twitter maintains a separate “crisis misinformation policy” which 

applies to “public health emergencies.” Crisis misinformation policy, TWITTER (August 

2022), https://help.twitter.com/en/rules-and-policies/crisis-misinformation. This policy 

would presumably apply to COVID-related misinformation if COVID-19 were again 

Case: 23-30445 Document: 00516918271 Page: 19 Date Filed: 10/03/2023
No. 23-30445

20

platforms other than Twitter—such as Facebook and YouTube—which still 

enforce COVID- or health-specific misinformation policies.4 And most 

fundamentally, the Individual Plaintiffs are not seeking to enjoin Twitter’s 

content moderation policies (or those of any other social-media platform, for 

that matter). Rather, as Plaintiffs’ counsel made clear at oral argument, what 

the Individual Plaintiffs are challenging is the government’s interference with 

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 “all 

three plaintiffs who suggested that their social-media accounts had been 

permanently 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:

_____________________

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.

4 Facebook 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). 

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 a 

sufficient threat of future injury to warrant injunctive relief.

Case: 23-30445 Document: 00516918271 Page: 20 Date Filed: 10/03/2023
No. 23-30445

21

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, then 

there would be no risk of future government-coerced censorship of their 

speech on those accounts. But since the Individual Plaintiffs continue to be 

active speakers on social media, they continue to face the very real and 

imminent threat of government-coerced social-media censorship.

Because the Individual Plaintiffs have demonstrated ongoing harm 

from 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 that 

burden, 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)).

Case: 23-30445 Document: 00516918271 Page: 21 Date Filed: 10/03/2023
No. 23-30445

22

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 and 

therefore the Biden Administration—which took office in January 2021—

“could not be responsible for [any resulting] content moderation.” But as we 

just 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 can 

also be traced to government-coerced enforcement of those policies. We agree 

with the district court that it can be.

On this issue, Department of Commerce is instructive. There, a group 

of 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 of 

federal funds. Id. at 2565–66. In response, the government presented many 

of the same causation arguments raised here, contending that any harm to the 

plaintiffs 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 

Case: 23-30445 Document: 00516918271 Page: 22 Date Filed: 10/03/2023
No. 23-30445

23

actions or regulatory reform). Id. But a unanimous Supreme Court disagreed. 

As the Court explained, the plaintiffs had “met their burden of showing that 

third 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 a 

citizenship question.” Id. at 2566.

That logic is directly applicable here. The Individual Plaintiffs 

adduced extensive evidence that social-media platforms have engaged in 

censorship of certain viewpoints on key issues and that the government has 

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 the 

social-media platforms’ censorship decisions were likely attributable at least 

in 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 showing 

that 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 predictable 

ways”). 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, 

Case: 23-30445 Document: 00516918271 Page: 23 Date Filed: 10/03/2023
No. 23-30445

24

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 directly 

on 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 to 

merely 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 

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 to 

restrain 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.

Case: 23-30445 Document: 00516918271 Page: 24 Date Filed: 10/03/2023
No. 23-30445

25

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 of Justice 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 

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. Louis 

County 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 of 

counsel, 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. 

_____________________

6 The State Plaintiffs also contend that they have parens patriae standing. We do 

not consider this alternative argument.

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.

Case: 23-30445 Document: 00516918271 Page: 25 Date Filed: 10/03/2023
No. 23-30445

26

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 of

Confederate Veterans, Inc., 576 U.S. 200, 207–08 (2015). Perhaps that right 

derives from a state’s sovereign nature, rather than from the First 

Amendment itself. But regardless of the source of the right, the State

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 to 

listen 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 explained 

by 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 these 

issues so I can understand what our constituents are actually 

thinking, feeling, and expressing about such issues, and so I can 

communicate 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:

Case: 23-30445 Document: 00516918271 Page: 26 Date Filed: 10/03/2023
No. 23-30445

27

[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 same 

school district who objected to mask mandates for 

schoolchildren responded to Dr. Fauci on Twitter, and 

promptly received a warning from Twitter that his account 

would be banned if he did not delete the tweets criticizing Dr. 

Fauci’s approach to mask mandates. These examples are just 

the sort of online speech by Missourians that it is important for 

me and the Missouri Attorney General’s Office to be aware of.

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” of 

what their citizens’ true concerns are. So, when the federal government 

coerces or substantially encourages third partiesto 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 ongoing 

harm from past social-media censorship and a likelihood of future censorship, 

both of which are injuries traceable to government-coerced enforcement of 

social-media platforms’ content-moderation policies and redressable by an 

Case: 23-30445 Document: 00516918271 Page: 27 Date Filed: 10/03/2023
No. 23-30445

28

injunction against the government officials. We therefore proceed to the 

merits 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 

Corps of Eng’rs, 894 F.3d 692, 696 (5th Cir. 2018) (citing La Union Del Pueblo 

Entero 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 the 

_____________________

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.

Case: 23-30445 Document: 00516918271 Page: 28 Date Filed: 10/03/2023
No. 23-30445

29

government to such a degree that its “choice”—which if made by the 

government 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

Under that test, we “begin[] by identifying ‘the specific conduct of 

which 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 “advocate 

and 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.

_____________________

9 That 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).

10 Note 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 state 

compulsion (or coercion) test”). We settle that dispute now—it isthe close nexus test. Am. 

Mfrs., 526 U.S. at 52 (a “close nexus” is required). In addition, some of our past decisions 

have confused this test with the joint action test, see Bass, 180 F.3d at 242, but the two are 

separate tests with separate considerations. 

Case: 23-30445 Document: 00516918271 Page: 29 Date Filed: 10/03/2023
No. 23-30445

30

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” is

not 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 approval 

of or acquiescence in” a private party’s actions is not enough either. Blum, 

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 no 

state action because a decision to discharge a patient—even if it followed 

from the “requir[ed] completion of a form” under New York law—was made 

by 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 not 

convinced—it emphasized that “physicians, [] not the forms, make the 

decision” and they do so under “professional standards that are not 

established 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 

Case: 23-30445 Document: 00516918271 Page: 30 Date Filed: 10/03/2023
No. 23-30445

31

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 a 

decision 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 the 

part of the state—meant that the club’s choice was not fully independent or 

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. at 

228. After all, there must be a “close nexus” that renders the government 

practically “responsible” for the decision. Blum, 457 U.S. at 1004. Taking that 

in context, we find that the clear throughline for encouragement in our 

caselaw is that there must be some exercise of active (not passive), meaningful 

(impactful enough to render them responsible) control on the part of the 

government 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 must 

encourage the decision to such a degree that we can fairly say it was the 

state’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 “compelled 

or [] influenced” by the state (emphasis added)); Frazier, 765 F.2d at 1286 

Case: 23-30445 Document: 00516918271 Page: 31 Date Filed: 10/03/2023
No. 23-30445

32

(significant encouragement is met when “the state has had some affirmative 

role, 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 of 

the 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 

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 shown 

that the government played a direct role in the particular action challenged.” (emphases 

added)). 

Under the close nexus test, however, the government is not deeply intertwined 

with the private actor as a whole. Instead, the state is involved in only one facet of the 

private 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 of 

integration. See Roberts, 742 F.2d at 228 (“We do not today hold that the state and 

Louisiana 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 the 

area 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, the 

plaintiff instead must only show significant involvement from the state in the particular

challenged 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 be 

Case: 23-30445 Document: 00516918271 Page: 32 Date Filed: 10/03/2023
No. 23-30445

33

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 picketing 

laws and local officials—shut down a workers’ strike. Id. at 548–49. We 

concluded that the growers’ “activity”—axing the strike—“while not 

compelled by the state, was so significantly encouraged, both overtly and 

covertly, that the choice must in law be deemed to be that of the state.” Id.

at 555 (alterations adopted) (citation and quotation marks omitted)

(emphasis added).12 Specifically, “[i]t was the heavy participation of state 

and state officials,” including local prosecutors and police officers, “that 

[brought] [the conduct] under color of state law.” Id. In other words, the 

officials were directly involved in carrying out the challenged decision. That 

satisfied 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, the 

government “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. 

_____________________

applied. When, therefore, the relevant facts show pervasive entwinement to the point of 

largely overlapping identity, the implication of state action is not affected by pointing out 

that 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. 

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 issue 

changes 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 the 

analysis of action under color of state law may coincide for purposes of § 1983.”).

Case: 23-30445 Document: 00516918271 Page: 33 Date Filed: 10/03/2023
No. 23-30445

34

Recovery Innovations, Inc., 975 F.3d 742, 751 (9th Cir. 2020) (“A finding that 

individual state actors or other state requirements literally ‘overrode’ a 

nominally private defendant’s independent judgment might very well 

provide 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 

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 for

encouragement. 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 from 

persuasion. Coercion, on the other hand, may be more subtle. After all, the 

state 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 and 

banks 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 

Case: 23-30445 Document: 00516918271 Page: 34 Date Filed: 10/03/2023
No. 23-30445

35

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,” the 

official’s letters were written in a “nonthreatening tone” and used 

persuasive, 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 

or adverse regulatory action would follow the failure to accede to the 

request.” Id. (alterations adopted). As for the “so long as” statement, the 

Second Circuit found that—when viewed in “context”—the official was 

merely “negotiating[] and resolving [legal] violations,” a legitimate power of 

her office.13 Id. at 718–19. Because she was only “carrying out her regulatory 

responsibilities” and “engaging in legitimate enforcement action,” the 

official’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 of 

_____________________

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 a 

close. 

Case: 23-30445 Document: 00516918271 Page: 35 Date Filed: 10/03/2023
No. 23-30445

36

verboten books and requested that they be taken off the shelves. Id. at 61–64. 

That request conveniently noted that compliance would “eliminate the 

necessity 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 

subtle asks accompanied by a “system” of pressure (e.g., threats and followups) are clearly coercive.

Still, it israre 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 quite 

difficult to parse out coercion from persuasion. We, of course, are not the 

first to recognize this. In that vein, the Second Circuit has crafted a fourfactor test that distills the considerations of Bantam Books into a workable 

standard. We, lacking such a device, adopt the Second Circuit’s approach as 

a 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 be 

interpreted 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 is 

Case: 23-30445 Document: 00516918271 Page: 36 Date Filed: 10/03/2023
No. 23-30445

37

dispositive.” Id. (citing Bantam Books, 372 U.S. at 67). For example, the 

Second Circuit found in Vullo that the state officials’ communications were

not coercive because, in part, they were not phrased in an intimidating 

manner and only referenced reputational harms—an otherwise acceptable 

consequence 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 

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 and 

misleading information” and, in doing so, was pursuing what she described 

as “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 these 

algorithms so that they no longer” push products peddling “COVID-19 

misinformation.” Id. at 1205. The authors sued, but the Ninth Circuit found 

no 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 the 

letter 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.” 

Case: 23-30445 Document: 00516918271 Page: 37 Date Filed: 10/03/2023
No. 23-30445

38

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 would 

read” 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 

example, in Warren, it would have been “unreasonable” to believe, given 

Senator Warren’s position “as a single Senator” who was “removed from 

the relevant levers of power,” that she could exercise any authority over 

Amazon. 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 issome 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 face 

_____________________

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 by 

threatening 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 no 

constitutional ability to regulate, so long as there is no actual or threatened imposition of 

government power or sanction.” Id.

Case: 23-30445 Document: 00516918271 Page: 38 Date Filed: 10/03/2023
No. 23-30445

39

retaliation if it ignored a borough president’s request because “[e]ven though 

[he] lacked direct regulatory control,” there was an “implicit threat” that he

would “use whatever authority he does have . . . to interfere” with the 

party’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 

[was] clear from the context.” Id. To be sure, an “official does not need to 

say ‘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”—“let 

alone 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[] to 

government pressure,” but courts are more likely to find coercion if there is 

“some indication” that the message was “understood” as a threat, such as 

evidence of actual change. Id. at 1210–11. In Warren, it was apparent (and 

there was no sense to the contrary) that the minor policy change the company 

did make stemmed from reputational concerns, not “fears of liability in a 

_____________________

15 The Ninth Circuit emphasized that officials may advocate for positions, 

including by “[g]enerating public pressure to motivate others to change their behavior.” 

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.

Case: 23-30445 Document: 00516918271 Page: 39 Date Filed: 10/03/2023
No. 23-30445

40

court 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 orsignificantly 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 

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 in 

order to constitute a state action. That reveals itself in (1) entanglement in a

party’s independent decision-making or (2) direct involvement in carrying 

out 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 was 

considered 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, the 

state 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.

Case: 23-30445 Document: 00516918271 Page: 40 Date Filed: 10/03/2023
No. 23-30445

41

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-style 

threat of referral to the Attorney General accompanied with persistent 

pressure and follow-ups). But, more often, it is not. So, to help distinguish 

permissible persuasion from impermissible coercion, we turn to the Second 

(and Ninth) Circuit’s four-factor test. Again, honing in on whether the 

government “intimat[ed] that some form of punishment” will follow a 

“failure to accede,” we parse the speaker’s messages to assess the (1) word 

choice and tone, including the overall “tenor” of the parties’ relationship; 

(2) the recipient’s perception; (3) the presence of authority, which includes 

whether it isreasonable 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 power 

over 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 recipient 

Case: 23-30445 Document: 00516918271 Page: 41 Date Filed: 10/03/2023
No. 23-30445

42

to 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 the 

message 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.

B.

With that in mind, we turn to the case at hand. We start with “the 

specific 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, and 

pressured 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 the 

platforms to act—was permissible government speech. So, we are left with 

the task of sifting out any coercion and significant encouragement from their 

attempts at persuasion. Here, there were multiple speakers and messages.

Case: 23-30445 Document: 00516918271 Page: 42 Date Filed: 10/03/2023
No. 23-30445

43

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 by 

commandeering their decision-making processes, both in violation of the 

First Amendment.

Generally speaking, officials from the White House and the Surgeon 

General’s office had extensive, organized communications with platforms. 

They met regularly, traded information and reports, and worked together on 

a 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 to 

moderate content. Privately, the officials were not shy in their requests—

they asked the platforms to remove posts “ASAP” and accounts 

“immediately,” and to “slow[] down” or “demote[]” content. In doing so, 

the officials were persistent and angry. 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’t 

Case: 23-30445 Document: 00516918271 Page: 43 Date Filed: 10/03/2023
No. 23-30445

44

know why you guys can’t figure this out,” and (4) “you are hiding the ball,”

while demanding “assurances” that posts were being taken down. And, more 

importantly, the officials threatened—both expressly and implicitly—to 

retaliate against inaction. Officials threw out the prospect of legal reforms and 

enforcement actions while subtly insinuating it would be in the platforms’ 

best interests to comply. As one official put it, “removing bad information” 

is “one of the easy, low-bar things you guys [can] do to make people like

me”—that is, White House officials—“think you’re taking action.”

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 

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, the 

platforms 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 the 

officials’ messages can “reasonably be construed” as threats of adverse 

consequences, we look to (1) the officials’ word choice and tone; (2) the 

recipient’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 the 

officials’ communications—reading them in “context, not in isolation”—

Case: 23-30445 Document: 00516918271 Page: 44 Date Filed: 10/03/2023
No. 23-30445

45

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 they 

seemingly 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. at 

1207–08. 

Like Bantam Books—and unlike the requests in Warren—many of the 

officials’ asks were “phrased virtually as orders,” 372 U.S. at 68, like 

requests 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 the 

persistent nature of their messages. Generally speaking, “[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). 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 

Case: 23-30445 Document: 00516918271 Page: 45 Date Filed: 10/03/2023
No. 23-30445

46

moderation practices and activities. Admittedly, many of the officials’

communications are not by themselves coercive. But, we do not take a 

speaker’s communications “in isolation.” Warren, 66 F.4th at 1208. Instead, 

we look to the “tenor” of the parties’ relationship and the conduct of the 

government in context. Id. at 1209. Given their treatment of the platforms as 

a 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 ‘the 

victim 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 is

some evidence that the recipient’s subsequent conduct is linked to the 

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 of 

evidence—both direct and circumstantial, considering the platforms’ 

contemporaneous actions—that the platforms were influenced by the 

officials’ demands. When officials asked for content to be removed, the 

platforms took it down. And, when they asked for the platforms to be more 

aggressive, “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 an 

employee “available on a regular basis” so that the platform could 

“automatically prioritize” the officials’ requests after criticism of the 

Case: 23-30445 Document: 00516918271 Page: 46 Date Filed: 10/03/2023
No. 23-30445

47

platform’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 the 

recipient.” 66 F.4th at 1210. Here, that is clearly the case. As an initial 

matter, the White House wields significant power in this Nation’s 

constitutional 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 

agencies that create, modify, and enforce federal regulations. We can hardly 

say that, like the senator in Warren, the White House is “removed from the 

relevant levers of power.” 66 F.4th at 1210. At the very least, as agents of the 

executive 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-defined 

ability 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. That

reasoning is likely applicable here, too, given the officials’ executive status. 

Case: 23-30445 Document: 00516918271 Page: 47 Date Filed: 10/03/2023
No. 23-30445

48

It is not even necessary that an official have direct power over the 

recipient. 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 be 

threatened 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]lthough 

the existence of regulatory or other direct decisionmaking authority is 

certainly relevant to the question of whether a government official’s 

comments were unconstitutionally threatening or coercive, a defendant 

without such direct regulatory or decisionmaking authority can also exert an 

impermissible type or degree of pressure.” Id. at 343. 

Consider another example, Backpage.com. There, a sheriff sent a 

cease-and-desist letter to credit card companies—which he admittedly “had 

no authority to take any official action” against—to stop doing business with 

a website. 807 F.3d at 230, 236. “[E]ven if the companies understood the 

jurisdictional 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 

Case: 23-30445 Document: 00516918271 Page: 48 Date Filed: 10/03/2023
No. 23-30445

49

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 or 

compel. Id. at 237; see also Vullo, 49 F.4th at 717–19 (statements were noncoercive because they referenced legitimate use of powers in a 

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 form 

of punishment” against the platforms.17 Okwedy, 333 F.3d at 342 (citation 

omitted) (emphasis added). Therefore, the authority factor weighs in favor 

of 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 to 

_____________________

16 This was true even though the financial institutions were large, sophisticated, 

and presumably understood the federal authorities were unlikely to prosecute the 

companies. 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”).

17 Or, as the Ninth Circuit put it, “public officials may criticize practices that they 

would 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).

Case: 23-30445 Document: 00516918271 Page: 49 Date Filed: 10/03/2023
No. 23-30445

50

say ‘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 made 

inflammatory accusations, such as saying that the platforms were 

“poison[ing]” the public, and “killing people.” The platforms were told they 

needed to take greater responsibility and action. Then, they followed their 

statements 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 the 

platforms faltered, the officials warned them that they were 

“[i]nternally . . . considering our options on what to do,” their “concern[s] 

[were] shared at the highest (and I mean highest) levels of the [White 

House],” and the “President has long been concerned about the power of 

large social media platforms.” Unlike the letter in Warren, the language 

deployed in the officials’ campaign reveals clear “plan[s] to punish” the 

platforms 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 weighs 

heavily in favor of finding the officials’ messages were coercive, not 

persuasive. 

Notably, the Ninth Circuit recently reviewed a case that is strikingly 

similar to ours. In O’Handley, officials from the California Secretary of 

State’s office allegedly “act[ed] in concert” with Twitter to censor speech 

on 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, 

Case: 23-30445 Document: 00516918271 Page: 50 Date Filed: 10/03/2023
No. 23-30445

51

when his election-fraud-based post was removed, California “abridged his 

freedom of speech” because it had “pressured Twitter to remove disfavored 

content.” 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” to 

comply 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, 

there was no indication—whether via tone, content, or otherwise—that the 

state would retaliate against inaction given the insubstantial relationship.

Ultimately, the officials conduct was “far from the type of coercion” seen in 

cases like Bantam Books. Id. In contrast, here, the officials made clear that the 

_____________________

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 and 

attempts to coerce. Particularly relevant here, we have held that 

government officials do not violate the First Amendment when they 

request that a private intermediary not carry a third party’s speech so long 

as the officials do not threaten adverse consequences if the intermediary 

refuses to comply. This distinction tracks core First Amendment 

principles. A private party can find the government’s stated reasons for 

making a request persuasive, just as it can be moved by any other speaker’s 

message. The First Amendment does not interfere with this 

communication so long as the intermediary is free to disagree with the 

government and to make its own independent judgment about whether to 

comply 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 manner 

with the entities they oversee without creating a constitutional violation.” Id. at 1163 (citing 

Vullo, 49 F.4th at 714–19).

Case: 23-30445 Document: 00516918271 Page: 51 Date Filed: 10/03/2023
No. 23-30445

52

platforms would suffer adverse consequences if they failed to comply, through 

express or implied threats, and thus the requests were not optional.

Given all of the above, we are left only with the conclusion that the 

officials’ statements were coercive. That conclusion tracks with the decisions 

of other courts. After reviewing the four-factor test, it is apparent that the 

officials’ 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 of 

some authority, the platforms’ yielding responses, and the officials’ express 

and implied references to adverse consequences—“directly suggest[ed] that 

compliance 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, much 

more. 

Now, we turn to encouragement. We find that the officials also 

significantly 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 and 

constantly 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 to 

meetings, roundups, and policy discussions. And, more importantly, they 

complied with the officials’ requests, including making changes to their 

policies.

Case: 23-30445 Document: 00516918271 Page: 52 Date Filed: 10/03/2023
No. 23-30445

53

The officials began with simple enough asks of the platforms—“can 

you share more about your framework here” or “do you have data on the 

actual number” of removed posts? But, the tenor later changed. When the 

platforms’ policies were not performing to the officials’ liking, they pressed 

for more, persistently asking what “interventions” were being taken, “how 

much content [was] being demoted,” and why certain posts were not being 

removed. Eventually, the officials pressed for outright change to the 

platforms’ moderation policies. They did so privately and publicly. One 

official emailed a list of proposed changes and said, “this is circulating around 

the building and informing thinking.” The White House Press Secretary 

called on the platforms to adopt “proposed changes” that would create a 

more “robust enforcement strategy.” And the Surgeon General published an 

advisory 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 

content should be taken down. They also followed up to ensure compliance 

and, when met with a response, asked how the internal decision was made.

And, the officials’ campaign succeeded. The platforms, in 

capitulation to state-sponsored pressure, changed their moderation policies.

The platforms explicitly recognized that. For example, one platform told the 

White House it was “making a number of changes”—which aligned with the 

officials’ demands—as it knew its “position on [misinformation] continues 

to be a particular concern” for the White House. The platform noted that, in 

line 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” “focused 

on reducing the virality” of anti-vaccine content even when it “does not 

contain actionable misinformation.” Relatedly, one platform told the 

Case: 23-30445 Document: 00516918271 Page: 53 Date Filed: 10/03/2023
No. 23-30445

54

Surgeon General that it was “committed to addressing the [] misinformation 

that 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 the 

platforms’ moderation decisions. By pushing changes to the platforms’ 

policies through their expansive relationship with and informal oversight 

over the platforms, the officials imparted a lasting influence on the platforms’ 

moderation decisions without the need for any further input. In doing so, the 

officials ensured that any moderation decisions were not made in accordance 

with independent judgments guided by independent standards. See id.; see 

also Am. Mfrs., 526 U.S. at 52 (“The decision to withhold payment, like the 

decision to transfer Medicaid patients to a lower level of care in Blum, is made 

by concededly private parties, and ‘turns on . . . judgments made by private 

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 the 

Surgeon General’s office, coerced and significantly encouraged the platforms 

to moderate content. As a result, the platforms’ actions “must in law be 

deemed 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 to 

do 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 

Case: 23-30445 Document: 00516918271 Page: 54 Date Filed: 10/03/2023
No. 23-30445

55

“strategic information,” frequently alerted the social media companies to 

misinformation spreading on their platforms, and monitored their content 

moderation policies. But, the FBI went beyond that—they urged the 

platforms 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 do 

find the FBI’s requests came with the backing of clear authority over the 

platforms. 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 a 

controversial video that could be “inciting a riot” because he was “an FBI 

agent charged with investigating the video”); Backpage, 807 F.3d at 234 

(“[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, and 

domestic 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’stakedown 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 of 

punishment 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 

Case: 23-30445 Document: 00516918271 Page: 55 Date Filed: 10/03/2023
No. 23-30445

56

documentary showing preparations for a military takeover of Times Square 

on 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 York 

concluded that a reasonable jury could find that statement coercive, 

“particularly when said by an FBI agent charged with investigating the 

video.” Id. at 531. Indeed, the question is whether a message intimates that

some 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 warned 

the platforms of “hack and dump” operations from “state-sponsored 

actors” 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 into 

moderating 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 itself in the platforms’ decision-making 

processes. Blum, 457 U.S. at 1008. Beyond taking down posts, the platforms 

also changed their terms of service in concert with recommendations 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 

Case: 23-30445 Document: 00516918271 Page: 56 Date Filed: 10/03/2023
No. 23-30445

57

subsequently moderated content that violated their newly modified terms of 

service (e.g., the results of hack-and-leaks), they did not do so via 

independent standards. See Blum, 457 U.S. at 1008. Instead, those decisions 

were made subject to commandeered moderation policies.

In short, when the platforms acted, they did so in response to the 

FBI’s inherent authority and based on internal policies influenced by FBI

officials. Taking those facts together, we find the platforms’ decisions were 

significantly encouraged and coerced by the FBI.19

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. 

_____________________

19 Plaintiffs and several amici assert that the FBI and other federal actors coerced 

or significantly encouraged the social-media companies into disseminating information that 

was 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.

Case: 23-30445 Document: 00516918271 Page: 57 Date Filed: 10/03/2023
No. 23-30445

58

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 the 

platforms 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 the 

various 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, and

how it was deploying manpower. Consequently, the CDC garnered an 

extensive relationship with the platforms.

From that relationship, the CDC, through authoritative guidance, 

directed changes to the platforms’ moderation policies. At first, the 

platforms asked CDC officials to decide whether certain claims were 

misinformation. In response, CDC officials told the platforms whether such 

claims were true or false, and whether information was “misleading” or

needed 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 the 

right 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

Case: 23-30445 Document: 00516918271 Page: 58 Date Filed: 10/03/2023
No. 23-30445

59

entirely on the CDC’s say-so—“[t]here are several claims that we will be 

able 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 even 

asked 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 the 

state.” Howard Gault, 848 F.2d at 555 (alterations adopted) (internal 

quotation marks and citation omitted).

4.

Next, we examine CISA. We find that, for many of the same reasons 

as the FBI and the CDC, CISA also likely violated the First Amendment. 

First, CISA was the “primary facilitator” of the FBI’s interactions with the 

social-media platforms and worked in close coordination with the FBI to push 

the platforms to change their moderation policies to cover “hack-and-leak” 

content. Second, CISA’s “switchboarding” operations, which, in theory,

involved CISA merely relaying flagged social-media posts from state and 

local election officials to the platforms, was, in reality, “[s]omething more.” 

Roberts, 742 F.2d at 228. CISA used its frequent interactions with socialmedia platforms to push them to adopt more restrictive policies on censoring 

election-related speech. And CISA officials affirmatively told the platforms 

whether the content they had “switchboarded” was true or false. Thus, 

when the platforms acted to censor CISA-switchboarded content, they did 

Case: 23-30445 Document: 00516918271 Page: 59 Date Filed: 10/03/2023
No. 23-30445

60

not do so independently. Rather, the platforms’ censorship decisions were 

made under policies that CISA has pressured them into adopting and based 

on CISA’s determination of the veracity of the flagged information. Thus, 

CISA likely significantly encouraged the platforms’ content-moderation 

decisions and thereby violated the First Amendment. See Blum, 457 U.S. at 

1008; Howard Gault, 848 F.2d at 555.

5.

Finally, we address the remaining officials—the NIAID and the State 

Department. Having reviewed the record, we find the district court erred in 

enjoining these other officials. Put simply, there was not, at this stage, 

sufficient evidence to find that it was likely these groups coerced or 

significantly encouragement the platforms. 

For the NIAID officials, it is not apparent that they ever 

communicated 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 and 

attempted to discredit opposing ones—quintessential examples of 

government speech that do not run afoul of the First Amendment. See 

Pleasant Grove City v. Summum, 555 U.S. 460, 467–68 (2009) (“[The 

government] is entitled to say what it wishes, and to select the views that it 

wants to express.” (quotation marks and citations omitted)); Nat’l 

Endowment 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 of 

view . . . .”). 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 with

the platforms, so far there is no evidence these communications went beyond 

Case: 23-30445 Document: 00516918271 Page: 60 Date Filed: 10/03/2023
No. 23-30445

61

educating the platforms on “tools and techniques” used by foreign actors. 

There is no indication that State Department officials flagged specific 

content for censorship, suggested policy changes to the platforms, or engaged 

in any similar actions that would reasonably bring their conduct within the 

scope of the First Amendment’s prohibitions.After all, their messages do not 

appear coercive in tone, did not refer to adverse consequences, and were not 

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. 

* * *

Ultimately, we find the district court did not err in determining that 

several officials—namely the White House, the Surgeon General, the CDC, 

the FBI, and CISA—likely coerced or significantly encouraged social-media 

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 

_____________________

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 or 

conspiracy-based state action theory. 

21 “With very limited exceptions, none applicable to this case, censorship—‘an 

effort 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 one 

of 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).

Case: 23-30445 Document: 00516918271 Page: 61 Date Filed: 10/03/2023
No. 23-30445

62

the state-action doctrine is vitally important to our Nation’s operation—by 

distinguishing between the state and the People, it promotes “a robust sphere 

of 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 relationship 

with 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 their 

activities.” 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 coordinated 

campaign of this magnitude orchestrated by federal officials that jeopardized 

a fundamental aspect of American life. Therefore, the district court was 

correct in its assessment—“unrelenting pressure” from certain government 

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 

_____________________

22 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 the 

challenged 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 the 

area 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.”).

Case: 23-30445 Document: 00516918271 Page: 62 Date Filed: 10/03/2023
No. 23-30445

63

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 enough 

evidence to show that irreparable injury is likely to occur during the pendency 

of 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 the 

standard for mootness, the district court concluded that a defendant must 

show that “it is absolutely clear the alleged wrongful behavior could not 

reasonably be expected to recur” and that the officials had failed to make 

such 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 the 

Plaintiffs had alleged a “substantial risk” of future harm that is not 

“imaginary or wholly speculative,” pointing to the officials’ ongoing 

coordination with social-media companies and willingness to suppress free 

speech 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 a 

short period, is sufficient to establish irreparable injury. Elrod, 427 U.S. at 

Case: 23-30445 Document: 00516918271 Page: 63 Date Filed: 10/03/2023
No. 23-30445

64

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 that 

they 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 a 

challenged practice does not deprive a federal court of its power to determine 

the legality of the practice, even in cases in which injunctive relief is 

sought.”). 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 upon 

a 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 their 

First Amendment interests are either threatened or impaired, they have met 

this standard. See Opulent Life Church, 697 F.3d at 295 (citing 11A Charles 

Alan Wright et al., Federal Practice and Procedure § 2948.1 (2d ed. 1995)

(“When an alleged deprivation of a constitutional right is involved, most 

courts hold that no further showing of irreparable injury is necessary.”)). 

Indeed, the record shows, and counsel confirmed at oral argument, that the 

officials’ 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 the 

government 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 

Case: 23-30445 Document: 00516918271 Page: 64 Date Filed: 10/03/2023
No. 23-30445

65

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,” the 

equities weigh in Plaintiffs’ favor. Opulent Life Church, 697 F.3d at 298 

(quotation marks and citations omitted).

While the officials raise legitimate concerns that the injunction could 

sweep in lawful speech, we have addressed those concerns by modifying the 

scope 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)). This 

requirement that a “plaintiff’s remedy must be tailored to redress the 

plaintiff’s particular injury” is in recognition of a federal court’s 

“constitutionally prescribed role . . . to vindicate the individual rights of the 

Case: 23-30445 Document: 00516918271 Page: 65 Date Filed: 10/03/2023
No. 23-30445

66

people 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 technical 

requirements. 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 a 

decree too vague to be understood. Since an injunctive order 

prohibits conduct under threat of judicial punishment, basic 

fairness requires that those enjoined receive explicit notice of 

precisely what conduct is outlawed.

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, “an 

ordinary person reading the court’s order should be able to ascertain from 

the 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 than 

necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary 

juncture. As an initial matter, it is axiomatic that an injunction is overbroad 

if it enjoins a defendant from engaging in legal conduct. Nine of the 

Case: 23-30445 Document: 00516918271 Page: 66 Date Filed: 10/03/2023
No. 23-30445

67

preliminary 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 the 

Constitution unless and until such conduct crosses the line into coercion or 

significant encouragement. Compare Walker, 576 U.S. at 208 (“[A]s a general 

matter, when the government speaks it is entitled to promote a program, to 

espouse 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 and 

disfavor 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 that 

some form of punishment or adverse regulatory action would follow the 

failure to accede to the request”), with Blum, 457 U.S. at 1004, and 

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, we 

have 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 the 

First 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 

Case: 23-30445 Document: 00516918271 Page: 67 Date Filed: 10/03/2023
No. 23-30445

68

companies to “Be on The Lookout” for certain posts.

23 Plaintiffs have not 

carried 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 a 

federal official to know exactly when his or her actions cross the line from 

permissibly 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 

“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 that 

the injunction otherwise prohibits on its face. For instance, it is not clear 

whether the Surgeon General could publicly urge social media companies to 

ensure that cigarette ads do not target children. While such a statement could 

_____________________

23 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 of 

government coercion or significant encouragement, and neither our opinion nor the 

modified injunction should be read to hold otherwise.

Case: 23-30445 Document: 00516918271 Page: 68 Date Filed: 10/03/2023
No. 23-30445

69

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 not 

defined).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 

working with the Election Integrity Partnership, the Virality Project, the 

Stanford Internet Observatory, or any like project or group” to engage in the 

same 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 the 

provision fails to identify the specific parties that are subject to the 

prohibitions, see Scott, 826 F.3d at 209, 213, and “exceeds the scope of the 

parties’ 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. 

Case: 23-30445 Document: 00516918271 Page: 69 Date Filed: 10/03/2023
No. 23-30445

70

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 on 

what 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 provision 

ourselves.

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 

sheriff violated Backpage’s First Amendment rights by demanding that 

financial service companies cut ties with Backpage in an effort to “crush” the 

platform (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 take 

no actions, formal or informal, to coerce or threaten credit card 

companies, processors, financial institutions, or other third 

parties with sanctions intended to ban credit card or other 

financial services from being provided to Backpage.com.

Id. at 239.

Case: 23-30445 Document: 00516918271 Page: 70 Date Filed: 10/03/2023
No. 23-30445

71

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 of 

what activities are proscribed. Specifically, prohibition six of the injunction 

is MODIFIED to state:

Defendants, and their employees and agents, shall take no 

actions, formal or informal, directly or indirectly, to coerce or 

significantly encourage social-media companies to remove, 

delete, suppress, or reduce, including through altering their 

algorithms, posted social-media content containing protected 

free speech. That includes, but is not limited to, compelling the 

platforms to act, such as by intimating that some form of 

punishment will follow a failure to comply with any request, or 

supervising, directing, or otherwise meaningfully controlling 

the social-media companies’ decision-making processes.

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 those 

threats are not verbalized and never materialize—so long as a reasonable 

person would construe a government’s message as alluding to some form of 

punishment. That, of course, is informed by context (e.g., persistent 

pressure, 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 

Case: 23-30445 Document: 00516918271 Page: 71 Date Filed: 10/03/2023
No. 23-30445

72

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 free 

speech 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 by 

plaintiffs themselves,” as the officials protest. But that does not mean it is still 

overbroad. To the contrary, an injunction “is not necessarily made overbroad 

by extending benefit or protection to persons other than prevailing parties in 

the lawsuit—even if it is not a class action—if such breadth is necessary to 

give 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 to 

coerce social-media companies into suppressing speakers, viewpoints, and 

content disfavored by the government. The harms that radiate from such 

conduct 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. Freedom 

v. Biden, 63 F.4th 366, 387 (5th Cir. 2023) (“[A]n injunction [can] benefit 

Case: 23-30445 Document: 00516918271 Page: 72 Date Filed: 10/03/2023
No. 23-30445

73

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 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 this modified 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 the 

United 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 President 

and Director of Digital Strategy, formerly Rob Flaherty; White 

House COVID-19 Director of Strategic Communications and 

Engagement, Dori Salcido; White House Digital Director for 

the COVID-19 Response Team, formerly Clarke Humphrey; 

Deputy Director of Strategic Communications and 

Engagement of the White House COVID-19 Response Team, 

formerly Benjamin Wakana; Deputy Director for Strategic 

Communications and External Engagement for the White 

House 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, 

Case: 23-30445 Document: 00516918271 Page: 73 Date Filed: 10/03/2023
No. 23-30445

74

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 the 

following employees: Carol Y. Crawford, Chief of the Digital 

Media 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. 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. And 

the Cybersecurity and Infrastructure Security Agency 

(“CISA”), and specifically the following employees: Jen 

Easterly, Director of CISA; Kim Wyman, Senior 

Cybersecurity Advisor and Senior Election Security Leader; 

and Lauren Protentis, Geoffrey Hale, Allison Snell, and Brian 

Scully.

VII.

The district court’s judgment is AFFIRMED with respect to the 

White House, the Surgeon General, the CDC, the FBI, and CISA 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 preliminary injunction is STAYED for ten days 

following the date hereof. The Clerk is DIRECTED to issue the mandate 

forthwith.

Case: 23-30445 Document: 00516918271 Page: 74 Date Filed: 10/03/2023