Sarah May
September 11, 2023

Appeals panel says Biden administration likely violated First Amendment

In the ongoing free speech case of Missouri v. Biden, a federal appeals panel just ruled that the White House likely violated the First Amendment by pressuring social media companies to censor supposedly erroneous or misleading COVID-19-related information, as the New York Post reports.

At the same time, however, the court significantly narrowed a prior order from the lower court that strictly limited the manner in which federal officials could engage with social media platforms regarding potentially problematic content.

Damning determination

The Fifth Circuit Court of Appeals panel in New Orleans issued a 75-page ruling Friday in which it held that President Joe Biden, the FBI, the Centers for Disease Control and Prevention, and the U.S. surgeon general may not work to “coerce” tech platforms to censor and remove content of which the government does not approve.

That decision comes as part of a lawsuit initiated by the states of Louisiana and Missouri together with a number of other plaintiffs who alleged that the administration threatened Facebook and the platform formerly known as Twitter with unfavorable legal treatment if they did not take steps to silence those who took positions in opposition to the government's official stance on COVID-19 vaccinations, masking, and related matters.

According to the ruling, the administration “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences” and also “significantly encouraged the platforms' decisions by commandeering their decision-making processes, both in violation of the First Amendment,” as Fox News explained, citing the Washington Post.

Prior order narrowed

Despite the issuance of an opinion that Louisiana Attorney General Jeff Landry characterized as a “major win against censorship,” the appeals panel did take steps to address an order from the lower court that aimed to substantially curtail the government's ability to engage with the social media platforms on issues of content moderation.

The expansive prior order from District Judge Terry Doughty was altered in some notable ways, including by way of removing officials from the State Department, the Cybersecurity and Infrastructure Security Agency, and the National Institute of Allergy and Infectious Disease from the order's purview.

Labeling Doughty's earlier injunction “vague and broader than necessary,” the panel vacated nine out of 10 of the provisions it originally contained, stating that administration contact with platforms are not violative of the Constitution “unless and until” it “crosses the line into coercion or significant encouragement.”

The judges explained, “There would be no way for a federal official to know exactly when his or her actions cross the line from permissibly communicating with a social medial company to impermissibly 'urging, encouraging, pressuring, or inducing' them 'in any way.'”

As such, the jurists declared, Doughty's injunction “must be further tailored to exclusively target illegal conduct and provide the officials with additional guidance or instruction on what behavior is prohibited.”

As things currently stand, according to the revised order, “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.”

Enforcement of the new order – a product of Republican-appointed Judges Edith Clement, Don Willett, and Jennifer Walker Elrod – remains on hold for a period of 10 days to provide an opportunity for an appeal to the U.S. Supreme Court.

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