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The 5th Circuit U.S. Court of Appeals late Friday ruled that the Biden administration likely violated the First Amendment when it pressured social media platforms to remove content it considered “misinformation” about the COVID-19 pandemic, vaccines and other topics.
The ruling by a three-judge panel of the New Orleans-based court partially upheld a July 4 injunction issued by a lower court in Missouri et al. v. Biden et al., a lawsuit filed in May 2022 by the attorneys general of Missouri and Louisiana along with several medical experts and journalists, alleging key government officials colluded with social media platforms to censor posts the government deemed “misinformation” or “disinformation.”
On July 14, the 5th Circuit granted the Biden administration a temporary administrative stay of the July 4 injunction. Oral arguments were heard in the case on Aug. 10.
Judges Edith Clement, Jennifer Elrod and Don Willett, co-authors of Friday’s 74-page opinion, rejected the U.S. Department of Justice’s (DOJ) request to fully reverse the lower court’s injunction that barred several Biden administration officials and federal agencies from communicating with social media companies about COVID-19-related topics.
The 5th Circuit found that White House officials, the surgeon general, the Centers for Disease Control and Prevention (CDC) and the FBI “likely coerced or significantly encouraged social media platforms to moderate content, rendering those decisions state actions. In doing so, the officials likely violated the First Amendment.”
The judges’ ruling upheld the spirit of the original injunction, stating:
“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 process.”
The judges said Biden administration 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.”
“The government is not permitted to use the government-speech doctrine to muffle the expression of disfavored viewpoints,” the judges wrote.
Recent documents released as part of the “Twitter Files” and “Facebook Files” uncovered evidence the Biden administration and several key government officials pressured social media platforms to remove content that ran contrary to official narratives on COVID-19, vaccines and election interference.
‘A significant victory for the American people’
In a statement provided to The Defender, Louisiana Attorney General Jeff Landry described the ruling as “a significant victory for the American people.”
“It confirms what we have said from the very beginning: The federal government is not permitted to engage in viewpoint censorship, no matter your political ideology,” Landry said.
In a tweet, Landry called the 5th Circuit’s decision “a major win against censorship, totalitarianism, and Biden.”
Children’s Health Defense (CHD) President Mary Holland said she was “delighted that the 5th Circuit unanimously upheld Judge Terry Doughty’s prophetic July 4 decision granting an injunction to halt the Biden administration’s censorship-industrial complex.”
Jenin Younes, a lawyer with the New Civil Liberties Alliance, which represents several of the individual plaintiffs in the lawsuit, called the decision “a crucial and historic victory for free speech in an era when social media is the modern-day equivalent of the traditional public square.”
Younes told The Defender, “As the Fifth Circuit recognized, the First Amendment does not tolerate the government coercing or encouraging tech companies to censor disfavored viewpoints,” she said.
This included suppression of “true speech that might stoke vaccine hesitancy,” Younes said, that resulted in “the censorship of some of the most accomplished doctors and scientists in the world, while “the American public was deprived of its right to hear information and ideas that were not in line with the government’s.”
Ruling may leave government some wiggle room
Rick Jaffe, who represents plaintiffs in medical censorship cases, took issue with some of the wording in the 5th Circuit’s ruling. On his blog, Jaffe said the 5th Circuit’s standard for not allowing the government to “significantly” encourage social media platforms to remove or suppress content, raises legal questions.
“The main problem for me is that I think this ‘cannot significantly encourage’ is flat-out unworkable as a legal guidance principle to the hundreds of federal employees who could encounter the social media companies,” he wrote. “Sometimes you need bright lines, and I think this is one of those times.”
Jaffe told The Defender, “I don’t see why government employees acting within the scope of their employment even have a First Amendment right.” Noting that the First Amendment “protects individuals from government restrictions of speech,” he said government employees’ right to speech “would be derived from some other source, like police power or public health.”
The 5th Circuit’s ruling limited the injunction, removing the communication restrictions for the National Institute of Allergy and Infectious Diseases (NIAID), the Cybersecurity and Infrastructure Agency (CISA) and the U.S. Department of State.
According to the judges, the July 4 injunction was “both vague and broader than necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary juncture,” adding that as a result, the initial injunction “could also capture otherwise legal speech.”
Austin-based technology attorney W. Scott McCollough said that while the court did pare back the preliminary injunction, this was “in part because the evidence gleaned by the Plaintiffs during preliminary discovery was too thin on whether the NIAID, State Department and CISA went beyond the permitted line.”
However, McCollough said, the case is still at the preliminary injunction stage, not the merits. “When the matter gets back on track in the District Court, there will be full discovery and more evidence on those actors is likely to be adduced.”
According to McCollough, CISA, which was implicated in the “Twitter Files,” “does have some regulatory authority, including over critical infrastructure. So, it is likely that CISA does have ‘power over the platforms in [some] capacity.’”
White House ‘coerced’ social media platforms via ‘intimidating messages and threats’
According to the 5th Circuit, “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.”
Specifically, the judges wrote that the White House and the Surgeon General’s office “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences,” and “significantly encouraged the platforms’ decisions by commandeering their decision-making processes.”
“Generally speaking, officials from the White House and Surgeon General’s office had extensive, organized communications with platforms,” the judges stated, adding that they “made express threats and, at the very least, leaned into the inherent authority of the President’s office.”
According to the ruling, this included “inflammatory accusations, such as saying that the platforms were ‘poison[ing]’ the public, and ‘killing people,” accompanied by “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,’” the judges wrote. “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. … We are left only with the conclusion that the officials’ statements were coercive.”
Referring to the FBI, the judges wrote, “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.”
“Given the record before us, we cannot say that the FBI’s messages were plainly threatening in tone or manner,” the judges wrote. “We do find the FBI’s requests came with the backing of clear authority over the platforms.”
Turning to the CDC, the judges wrote, “We find that, although not plainly coercive, the CDC officials likely significantly encouraged the platforms’ moderation decisions, meaning they violated the First Amendment.”
The 5th Circuit vacated all but one of the lower court’s specific prohibitions, but affirmed prohibition six, which barred the officials and agencies in question 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.”
However, that prohibition was modified to state the following:
“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.
“Social media platforms’ content-moderation decisions must be theirs and theirs alone.”
“The proper injunctive terms will be revisited when the case is disposed on final judgment and there is a permanent injunction,” McCollough told The Defender.
Jaffe said that one of the most positive outcomes of the 5th Circuit’s ruling is that it “agreed with the district court that the Biden administration likely violated the First Amendment rights of the state officials and private parties” involved in the lawsuit, describing this as “a very good finding.”
Supreme Court may intervene
The court also denied the government’s motion for a stay of the original injunction pending appeal but granted their request to extend the administrative stay issued July 14 for 10 days, “pending an application to the Supreme Court of the United States.”
The DOJ has 10 days to ask the Supreme Court to intervene, Bloomberg reported, adding that the DOJ “previously indicated it’s prepared to take the case to the high court.”
In a statement, the White House defended its actions, saying “This administration has promoted responsible actions to protect public health, safety and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections.”
“Our consistent view remains that social media platforms have a critical responsibility to take account of the effects their platforms are having on the American people but make independent choices about the information they present,” the White House stated.
In his statement, Landry said, “The Biden administration now has ten days to seek Supreme Court review … But we are determined to bring this to trial so that the victims are vindicated and we can prevent this gross abuse of power from ever happening again, especially in a time of crisis, when information is most important.”
Jaffe wrote the Supreme Court Justice assigned to the 5th Circuit is Samuel Alito, who “might issue a stay, or the full court could,” adding that “It is possible that the three uber-conservative judges might agree with me that a bright-line prohibition, at least in the public health and COVID context, is justified, and maybe more justices.”
According to Bloomberg, “The ban has already started to disrupt government business,” such as canceled calls between the White House and social media representatives,” including in relation to efforts to “crack down” on “misinformation” on social media.
“The Supreme Court has been increasingly pulled into the debates over regulating online speech,” Bloomberg reported. “The high court this upcoming term will likely hear cases challenging laws in Texas and Florida that regulate what kind of speech social media companies can remove.”
But according to McCollough, “Bloomberg’s reportage constitutes malinformation.”
“These government actors did not ‘ask’ social media companies to ‘crack down’ on ‘misinformation’ about COVID-19,” he said. “They demanded that the platforms censor information on a wide variety of topics these officials did not like and threatened severe consequences if the platforms did not comply.”
“The information that was suppressed was, as we now know so well, largely true, so it was not, in fact, ‘misinformation,’” McCollough added. “They forced themselves into, and often directly controlled, the platforms’ ‘moderation’ policies, decisions and actions.”
“Many people were censored as a result,” he said. “The public was not allowed to have open discussion on several different important civil topics and controversies of the day.”
McCollough predicted the Supreme Court will address regulation of online speech in the upcoming term,” and “will find the public has a right to free expression and the government cannot directly or indirectly suppress online protected speech.”
Jaffe said, “It rubs me the wrong way that the federal government gets to tell platforms that they don’t like specific posts about matters of public health during a time when the government’s narrative has proven to be wrong and dangerous.”
Younes told The Defender, “In short, this case illustrates why the First Amendment is crucial to freedom in this country. The government cannot be in the business of deciding what is true and what is false, and who deserves to be heard and who is silenced.”
Ruling a ‘devastating loss’ for globalist elite
Missouri et al. v. Biden et al. is one of several lawsuits pending in federal courts alleging the White House and members of the Biden administration pressured social media platforms to suppress speech that was not aligned with establishment policies concerning COVID-19, vaccines and other policy-related issues.
These include the Texas and Florida cases, the Kennedy et al. v. Biden et al. censorship lawsuit, which was consolidated with Missouri et al. v. Biden et al. in July, and Kennedy v. Google et al., alleging YouTube censored COVID-19 vaccine-related content posted by Kennedy, and in which CHD is co-plaintiff.
Holland and Younes both told The Defender that it is still unknown whether the DOJ will appeal or if the case will return to the trial court.
“Regardless, when this case does continue before Judge Doughty for further discovery, CHD’s case will also have access to all of that information, providing evidence of the vast enterprise that has been created in recent years to shape and control what Americans can read, in direct violation of the First Amendment,” Holland said.
McCollough said the 5th Circuit ruling is a “devastating loss” for actors such as the United Nations, World Health Organization, Council on Foreign Relations, G20, World Economic Forum and World Bank, as well as “financial giants like Vanguard, BlackRock and State Street,” that the Bill of Rights prohibits the neo-feudalism they are trying to establish.”