Fifth Circuit Rejects "Jawboning" Theory in Social Media Content Case

Fifth Circuit Rejects "Jawboning" Theory in Social Media Content Case

A federal appeals court has thrown out a lawsuit alleging that federal health officials unconstitutionally pressured social media platforms to remove COVID-19 misinformation, dealing a blow to the "jawboning" theory that has become a favorite of critics of government-tech interactions.

The U.S. Court of Appeals for the Fifth Circuit ruled that the plaintiffs—a group of social media users—failed to show they had standing to sue over communications between the Centers for Disease Control and Prevention and platforms like Facebook and YouTube. The court found that the users could not trace their alleged injuries to the government's actions rather than the platforms' independent moderation decisions. The case is one of several filed after the Supreme Court's 2024 decision in Murthy v. Missouri, which similarly found that plaintiffs lacked standing to challenge federal communications with social media companies.

The ruling underscores the difficulty plaintiffs face in establishing standing when platforms make their own content decisions, even when government officials make requests. Courts have consistently held that informal pressure from the government does not automatically convert private platform decisions into state action—a distinction that has frustrated plaintiffs seeking to hold federal agencies accountable for content moderation outcomes.

Attorneys for the plaintiffs have not indicated whether they will seek en banc review by the full Fifth Circuit or petition the Supreme Court. The decision adds to a growing body of appellate precedent narrowing the pathways for challenging government communications with tech platforms, and it may influence how similar cases proceed in other circuits.

Primary sources: U.S. Court of Appeals for the Fifth Circuit; Murthy v. Missouri, 603 U.S. ___ (2024)