United States District Court Judge Terry Doughty’s July 4th ruling issuing an injunction against the Biden administration and its collaborative censorship endeavors with Big Tech marked a poetic victory for free speech, coming as it did on the 247th anniversary of our nation’s independence.
September 8th marks another free speech win, albeit with a somewhat narrowed scope. On Friday, the Fifth Circuit Court of Appeals issued its highly anticipated ruling in Missouri v. Biden, the case in which the states of Louisiana and Missouri, along with several individual social media users, challenged the federal government’s coercive attempts to squelch speech on social media platforms like Twitter (now “X”) and Facebook, asserting it violated their First Amendment Rights.
In a nutshell, the appellate court agreed that the government had violated the Constitution, but it pared down the scope of the injunction issued by the district court, both in terms of the defendants to whom it applied and the nature of the prohibited actions.
Missouri Attorney General Andrew Bailey announced news of the win on X.
🚨BREAKING: The Fifth Circuit has upheld the district court’s order in our free speech case, Missouri v. Biden, enjoining the White House, Surgeon General, CDC, & FBI from violating the First Amendment rights of millions of Americans.
— Attorney General Andrew Bailey (@AGAndrewBailey) September 8, 2023
Dr. Jay Bhattacharya, one of the named individual plaintiffs in the case, expressed his gratitude for the win, as well.
I have been an American citizen since I was 19 years old. Never did I imagine that an American government would conspire to violate my free speech rights.
But that is what the Biden Administration did, as the 5th Circult just confirmed.
I am thankful for the US Constitution.
— Jay Bhattacharya (@DrJBhattacharya) September 9, 2023
In its 74-page ruling, the Fifth Circuit first set forth the violative conduct of the federal officials, noting the numerous contacts between officials from the White House, CDC, FBI, and, to a lesser extent, CISA (Cybersecurity and Infrastructure Security Agency) and the State Department and platforms including Facebook, Twitter, Google, and YouTube. The court then determined that both the individual plaintiffs and the state plaintiffs had standing to pursue their claims.
The court then assessed the merits of the claims supporting the injunction, beginning with the likelihood of success:
We start with likelihood of success. The Plaintiffs allege that federal officials ran afoul of the First Amendment by coercing and significantly encouraging “social-media platforms to censor disfavored [speech],” including by “threats of adverse government action” like antitrust enforcement and legal reforms. We agree.
The court found that both the White House and the Surgeon General violated the First Amendment.
We find that the White House, acting in concert with the Surgeon General’s office, likely (1) coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences, and (2) significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment.
How were those officials coercive?
Here, the 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.” The platforms were told they needed to take greater responsibility and action. 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.’” Warren, 66 F.4th at 1212. 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—when the platforms faltered, the officials warned them that they were “[i]nternally . . . considering our options on what to do,” their “concern[s] [were] shared at the highest (and I mean highest) levels of the [White House],” and the “President has long been concerned about the power of large social media platforms.” Unlike the letter in Warren, the language deployed in the officials’ campaign reveals clear “plan[s] to punish” the platforms if they did not surrender. Warren, 66 F.4th at 1209. Compare id., with Backpage.com, 807 F.3d at 237. Consequently, the four-factor test weighs heavily in favor of finding the officials’ messages were coercive, not persuasive.
The court also found the FBI’s and CDC’s actions violated the plaintiffs’ First Amendment rights. However, the court did not find that the NIAID, State Department, and CISA did, so it held that the district court erred in including those agencies/officials in the injunction.
The court emphasized it did not take its decision lightly, but added:
[T]he 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.” We see no error or abuse of discretion in that finding. [emphasis mine]
While the court found the injunction issued by the district court was warranted, it also found that it was too broad and vague, so limited the scope of it considerably, dispensing with nine of the 10 provisions, but retaining the sixth, while modifying it to read as follows:
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.
The court also excluded the NIAID, State Department, and CISA from the injunction. Nevertheless, it remains in place for the White House, Surgeon General, FBI, and CDC defendants. The court agreed to stay its decision for 10 days to allow the remaining government defendants an opportunity to appeal to the Supreme Court.
To sum up: The Fifth Circuit agreed with the district court that White House, Surgeon General, CDC, and FBI officials violated the First Amendment rights of the plaintiffs and they are enjoined from coercing or significantly encouraging social media platforms to remove or suppress protected free speech. The government defendants have 10 days to file an appeal. The question is: Will they?