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

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

A federal appeals court has dealt a significant blow to claims that Biden-era officials violated the First Amendment by pressuring social media platforms to moderate content — a ruling that could reshape how the government interacts with tech companies for years to come.

The U.S. Court of Appeals for the Fifth Circuit ruled that a coalition of social media users and states failed to prove that federal officials unlawfully coerced platforms like Facebook and Twitter into censoring posts during the COVID-19 pandemic and the 2020 election cycle. The court found that while government communications with the platforms were sometimes forceful, they did not rise to the level of unconstitutional coercion required to establish a First Amendment violation.

The case, Missouri v. Biden, became a flashpoint in the broader debate over online speech and government influence. A federal district court in Louisiana had earlier issued an sweeping injunction restricting communications between the White House, FBI, and social media companies, but the Fifth Circuit stayed that order. The Supreme Court later vacated the injunction on standing grounds, and the case returned to the lower courts for further proceedings.

The appeals court's reasoning emphasized that platforms made independent decisions about content moderation and that plaintiffs could not show a direct causal link between government pressure and specific censorship actions. The ruling underscores the high bar plaintiffs face when arguing that informal government persuasion — so-called "jawboning" — crosses constitutional lines.

Attorneys general from Missouri and Louisiana have signaled they may seek further review, potentially teeing up another Supreme Court showdown over the boundary between government advocacy and unconstitutional censorship. Watch for whether the full Fifth Circuit or the justices take up the coercion standard, and whether similar challenges to federal agency communications with tech platforms proceed in other circuits.

Primary sources: U.S. Court of Appeals for the Fifth Circuit · Supreme Court opinion in Murthy v. Missouri