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Federal appeals court further curbs Biden administration's ability to police and censor Americans' speech online
Yuri Gripas/Abaca/Bloomberg via Getty Images

Federal appeals court further curbs Biden administration's ability to police and censor Americans' speech online

The Biden administration suffered another crushing defeat Tuesday in the Missouri v. Biden saga.

A U.S. district judge issued a preliminary injunction against the Biden administration in July, barring its agencies and top officials from leaning on social media companies to remove, delete, suppress, or reduce "content containing protected free speech posted on social-media platforms."

Like the White House, the Biden Department of Justice expressed its displeasure with the Trump appointee's decision and filed an appeal.

Last month, the U.S. Court of Appeals for the Fifth Circuit dashed the administration's hopes, upholding the lower court's ruling. However, among the apparent rogue agencies the three-judge panel left unchecked was one of the worst offenders.

On Tuesday, the Fifth Circuit remedied this oversight, expanding the injunction to include the Cybersecurity and Infrastructure Security Agency, noting that "for many of the same reasons as the FBI and the CDC, CISA also likely violated the First Amendment."

The White House appears ready to take this battle to the Supreme Court.

What's the background?

The plaintiffs in the suit included the co-authors of the Great Barrington Declaration, Drs. Jay Bhattacharya and Martin Kulldorff; Jill Hines, the activist behind the "Reopen Louisiana" initiative; and the states of Missouri and Louisiana.

Bhattacharya noted in a recent op-ed that that he joined the suit in August 2022 at the request of the Missouri and Louisiana attorneys general with the aim of ending the government's role in running roughshod over the First Amendment rights of critics and questioners of the Biden administration's COVID-19 policies.

President Joe Biden, White House press secretary Karine Jean-Pierre, Anthony Fauci, and various other Biden administration officials and entities were named as defendants.

In his judgment filed on July 4, U.S. District Judge Terry A. Doughty wrote, "If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States' history. In their attempts to suppress alleged disinformation, the Federal Government, and particularly the Defendants named here, are alleged to have blatantly ignored the First Amendment's right to free speech."

According to Doughty, the plaintiffs were "likely to succeed on the merits on their claim that the United States Government, through the White House and numerous federal agencies, pressured and encouraged social-media companies to suppress free speech."

On the basis of this understanding, Doughty barred Biden administration officials, including in the FBI, DOJ, and the Centers for Disease Control and Prevention, from engaging social media companies regarding "the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms."

TheBlaze previously reported that White House press secretary Karine Jean-Pierre similarly indicated the DOJ was "reviewing this" and that the Biden White House disagreed with Doughty's decision.

The DOJ asked Doughty for a stay of the injunction, which he denied.

On July 10, the department asked the Fifth Circuit Court of Appeals for a stay, suggesting that a failure to stay might — among other things — hinder the Biden administration in fighting "misinformation circulating online [that] could impede relief and response efforts" after a natural disaster.

A partial win

A three-judge panel for the Fifth Circuit issued an opinion on Sept. 8 validating the argument that the Biden administration had been violating Americans' First Amendment Rights by unlawfully censoring them by proxy via social media companies, reported Newsweek.

The panel confirmed that the White House, surgeon general, CDC, and FBI likely had violated the First Amendment. Accordingly, the judges affirmed the district court's judgement with respect to these entities. However, the Appeals Court reversed the injunction as it pertained to all other officials.

This partial victory was bittersweet, noted RealClearInvestigations editor Ben Weingarten, not only because the National Institute of Allergy and Infectious Diseases and the State Department were not subjected to the injunction but because CISA got out unscathed.

Weingarten told lawmakers in May, "CISA has served as a censorship 'switchboard,' collecting purported misinformation from government and non-government actors in the form of tweets, YouTube videos, and even private Facebook messages, and relaying the flagged content to the platforms to squelch it."

Missouri Attorney General Andrew Bailey has called CISA "the 'nerve center' of the vast censorship enterprise, the very entity that worked with the FBI to silence the Hunter Biden laptop story."

Going the distance

The Republican attorneys general for Missouri and Louisiana requested a rehearing on Sept. 28. The court obliged them.

The three-judge panel withdrew its previous opinion and extended the injunction to CISA as well.

"We find that, for many of the same reasons as the FBI and the CDC, CISA also likely violated the First Amendment," says the opinion. "First, CISA was the 'primary facilitator' of the FBI's interactions with the social-media platforms and worked in close coordination with the FBI to push the platforms to change their moderation policies to cover 'hack-and-leak' content."

"Second, CISA's 'switchboarding' operations, which, in theory, involved CISA merely relaying flagged social-media posts from state and local election officials to the platforms, was, in reality, '[s]omething more,'" continues the opinion. "CISA used its frequent interactions with social-media platforms to push them to adopt more restrictive policies on censoring election-related speech. And CISA officials affirmatively told the platforms whether the content they had 'switchboarded' was true or false. Thus, when the platforms acted to censor CISA-switchboarded content, they did not do so independently."

The Fifth Circuit judges further bolstered the district court's view that the Biden White House, the FBI, the surgeon general, the CDC, and CISA "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 defendants are barred from coercing or significantly encouraging a social media platform's content moderation decisions. They have less than a week to update their request to the Supreme Court.

In its third supplemental memo to the U.S. Supreme Court regarding an emergency stay application on behalf of the defendants, the DOJ accused the Fifth Circuit on Oct. 5 of having reached its decision on the basis of a "flawed conception of the state-action doctrine," stressing that it will impose "grave harms" on thousands of government employees.

USA Today indicated that the DOJ declined to comment. Brandon Wales, executive director of CISA, has suggested his agency does not censor speech.

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