The Sixth Circuit opened a rift with the Fifth Circuit last Thursday in Changizi v. HHS, No. 22-3573 (6th Cir. Sep. 14, 2023). Judge Bush wrote the opinion for the Court, which Judge Boggs and Judge White joined. The decision affirmed the dismissal of a complaint alleging that the Biden Administration had violated the First Amendment by coercing Twitter (these days known as “X”) into temporarily or permanently banning certain Twitter users from the social-media platform. The plaintiffs claimed they were censored because they allegedly posted misinformation about COVID-19.

In holding that the plaintiffs lacked Article III standing, it might be more accurate to say that the Sixth Circuit reinforced the Fifth Circuit’s outlier status among the circuit courts that have issued decisions in similar cases so far. It was, after all, the Fifth Circuit that arguably bucked a trend set by the Ninth and Second Circuits when the Fifth Circuit held that the Biden Administration had likely coerced various social-media platforms into censoring certain social-media content. Compare Missouri v. Biden, No. 23-30445 (5th Cir. Sep. 8, 2023) with NRA v. Vullo, No. 21-636 (2d Cir. Sep. 22, 2022) and Kennedy v. Warren, No. 22-35457 (9th Cir. May 4, 2023). In any event, the Sixth Circuit’s decision likely does not count as a true “split” from the Fifth Circuit’s decision because of the cases’ different postures: the Fifth Circuit affirmed a preliminary injunction (with some modification) that the district court entered after a substantial amount of evidence had been developed through preliminary discovery. The Sixth Circuit, meanwhile, affirmed the dismissal of a complaint based solely on the allegations in the complaint.

But even accounting for the different postures, it’s fair to say that the decisions are in some tension with each other. The schism arises from the conflicting conclusions the courts reached on the question whether the plaintiffs had established that the purported censorship was fairly traceable to the Biden Administration. The Sixth Circuit held that the plaintiffs in its case had not established traceability; the Fifth Circuit came to the opposite conclusion for its plaintiffs. Not only that, but it was critical to the Sixth Circuit’s traceability analysis that Twitter independently adopted a policy “broadening its definition of censorable, harmful information … long before the Biden Administration” took any relevant state action. 6th Cir. Op. at 2,6. The Fifth Circuit, by contrast, seemed to think that fact was “irrelevant.” 5th Cir. Op. at 21. In the Fifth Circuit’s view, “[t]he dispositive question” was whether the plaintiffs’ alleged censorship could “also be traced to government-coerced enforcement of those policies.” Id. (emphasis original). The Fifth Circuit held it could be based on the evidence in its case. With jurisdiction no barrier to reaching the merits, the Fifth Circuit held it was likely that the Administration had violated the plaintiffs’ First Amendment rights.

To the extent there’s a wrinkle between the Sixth and Fifth Circuit’s treatment of traceability in these cases, the Supreme Court will soon be in a position to iron it out. On the same day last week that the Sixth Circuit issued its decision, the Administration filed an emergency application at the Supreme Court to stay the district court’s injunction in the Fifth Circuit case. Justice Alito granted an administrative stay until this coming Friday night. The plaintiffs have until Wednesday 4 p.m. to file their response to the application.