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The Fifth Circuit Court of Appeals ruled on Friday that the Biden administration violated the First Amendment rights of millions of Americans by coercing social media companies to censor posts about COVID-19, elections, and other content the administration considered “problematic.” The Court modified a preliminary injunction issued by a lower court and now restricts the White House, the Surgeon General, the Centers for Disease Control and Prevention (CDC), and the FBI from improperly influencing social media content policies while the case continues in litigation.

In Missouri v. Biden, the unanimous three-judge panel found that the White House, the Surgeon General, the CDC, and the FBI “likely coerced or significantly encouraged” social-media companies to remove “undesirable” posts “by way of intimidating messages and threats of adverse consequences.” The Court determined that social media platforms moderated their content policies “in capitulation to state-sponsored pressure” and therefore, those actions “must in law be deemed to be that of the State.”

The Court wrote, “[Government] 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 Fifth Circuit’s opinion details the tone and tact of the government’s interactions with the social media companies.

The Court wrote, “…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’…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.”’”

The Fifth Circuit stated government officials were “persistent” and “angry” when their demands weren’t met. The court found that the government’s “threatening tone” and “express or implied threats” influenced social media policies “by commandeering their decision-making processes…in violation of the First Amendment.”

The ruling upholds a similar decision by a lower court on July 4, 2023, which determined the Biden administration conducted a “censorship-by-proxy” scheme with technology firms such as Google, Meta, Twitter and others to suppress speech based on its content in clear violation of the First Amendment. The lower court barred eight government departments and agencies and at least 40 named officials from having any contact with social media companies except in matters of criminal activity or national security.

However, the Appeals Court found that this injunction also prohibited “legal speech” and barred the government from “engaging in legal conduct,” so it narrowed the injunction. The Court stated that the lower court “did not err” in its key findings but rather many of its prohibitions were “duplicative” and “unnecessary.” The judges modified the injunction to only affect the White House, the Surgeon General, the CDC, and the FBI barring them from specifically coercing or significantly encouraging a social media platform to moderate content. The Court removed the Departments of State and Justice, the Cybersecurity and Infrastructure Agency, and the National Institute of Allergy and Infectious Diseases from the injunction.

In the modified injunction, the Fifth Circuit ordered, “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,” stated the Court.

The plaintiffs in the case consist of the states of Missouri and Louisiana, three doctors, a news website, and a healthcare activist who all had posts or stories censored by social media platforms. Their content included topics such as the COVID-19 injection side effects, the COVID-19 lab-leak theory, pandemic lockdowns, election fraud, and the Hunter Biden laptop story.

The Appeals Court gave the Biden administration 10 days to appeal to the U.S. Supreme Court before the injunction takes effect. Anticipating a possible appeal, the Fifth Circuit noted the magnitude of the impact of this case on Americans’ free speech and reiterated they believed that the lower court previously ruled correctly.

“So, we do not take our decision 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.’”

Liberty Counsel Founder and Chairman Mat Staver said, “The Biden administration has violated our most fundamental liberty of free speech. Their censorship has harmed people by preventing the dissemination of life-saving information. Their attempts to control social media is a totalitarian power grab that tramples the U.S. Constitution. The federal government’s lawlessness must be stopped.”

Author: Liberty Counsel


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