An injunction prohibiting the White House, FBI, CDC and Surgeon General from continuing to coerce social media platforms to censor content has been upheld by the U.S. Court of Appeals for the Fifth Circuit.
In its decision released Friday, the court cites several instances in which the federal government “coerced” or “significantly encouraged” social media platforms to censor content the government didn’t like. Both actions constitute a violation of the First Amendment.
“[S]ince the Individual Plaintiffs continue to be active speakers on social media, they continue to face the very real and imminent threat of government-coerced social-media censorship,” the court warns.
The censorship didn’t just deny the plaintiffs their right to free speech, it also prevented them from “hearing” the speech of others who were censored, the court explains:
“Federally coerced censorship harms the State Plaintiffs’ ability to listen to their citizens as well.”
To determine whether the censorship efforts could “reasonably be construed” as threats, the court employed a four-factor test used by other courts:
- the officials’ word choice and tone;
- the recipient’s perception;
- the presence of authority; and
- whether the speaker refers to adverse consequences.
The White House and Surgeon General’s office employed “intimidating messages and threats,” the court finds:
“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.
“On multiple occasions, the officials coerced the platforms into direct action via urgent, uncompromising demands to moderate content.
“Privately, the officials were not shy in their requests—they asked the platforms to remove posts ‘ASAP’ and accounts ‘immediately,’ and to ‘slow down’ or ‘demote’ content. In doing so, the officials were persistent and angry.”
When platforms did not comply, government officials badgered them:
“[O]fficials followed up by asking why posts were ‘still up,’ stating (1) ‘how does something like [this] happen,’ (2)’what good is’ flagging if it did not result in content moderation, (3) ‘I don’t know why you guys can’t figure this out,’ and (4) ‘you are hiding the ball,’ while demanding ‘assurances’ that posts were being taken down.
“And, more importantly, the officials threatened—both expressly and implicitly—to retaliate against inaction. Officials threw out the prospect of legal reforms and enforcement actions while subtly insinuating it would be in the platforms’ best interests to comply.”
“When the officials’ demands were not met, the platforms received promises of legal regime changes, enforcement actions, and other unspoken threats. That was likely coercive,” the ruling states.
The court concludes that the resulting social media content constitutes, by law, the product of the State and not of the social media platforms:
“In sum, we find that the White House officials, in conjunction with the Surgeon General’s office, coerced and significantly encouraged the platforms to moderate content. As a result, the platforms’ actions ‘must in law be deemed to be that of the State.’”
The FBI also used coercion to force social media platforms to censor content, the ruling says:
“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.
“We start with coercion. Similar to the White House, Surgeon General, and CDC officials, the FBI regularly met with the platforms, shared “strategic information,” frequently alerted the social media companies to misinformation spreading on their platforms, and monitored their content moderation policies. But, the FBI went beyond that—they urged the platforms to take down content.”
When content moderation requests come from law enforcement officers, they have strong potential to be “inherently coercive,” the court notes.
“But, the FBI’s endeavors did not stop there,” the ruling says:
“We also find that the FBI likely significantly encouraged the platforms to moderate content by entangling themselves in the platforms’ decision-making processes.”
…
“In short, when the platforms acted, they did so in response to the FBI’s inherent authority and based on internal policies influenced by FBI officials.”
Regarding the CDC’s actions, the court deemed them to be violations of the First Amendment, though not overtly coercive:
“We find that, although not plainly coercive, the CDC officials likely significantly encouraged the platforms’ moderation decisions, meaning they violated the First Amendment.”
…
“From that relationship, the CDC, through authoritative guidance, directed changes to the platforms’ moderation policies.”
In conclusion, the court upheld the lower court’s injunction preventing the Biden Administration from violating the First Amendment via social media censorship:
“Ultimately, we find the district court did not err in determining that several officials—namely the White House, the Surgeon General, the 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.”
Even more evidence of the Biden Administration violating the First Amendment through coerced social media censorship may be forthcoming, pending the results of a lawsuit announced last week by America First Legal (AFL), NewsBusters reported on Thursday:
“The legal firebrand announced in a press release Monday that it is suing President Joe Biden’s FBI and Department of Justice after each refused to hand over potentially damning documents related to alleged censorship requests sent just days before the 2022 midterm elections. Through a December 2022 Freedom of Information Act (FOIA) request, AFL sought more information about an email uncovered in the sixth installation of The Twitter Files but the FBI and DOJ denied the request.
“According to AFL, the FBI’s National Election Command Post sent the email to Assistant Special Agent in Charge Elvis Chan requesting that he ask Twitter to examine 25 accounts that may have ‘violated Twitter’s terms of service’ and be subject to Twitter’s censorship regime. Twitter took action against 17 of the accounts many of which, as The Twitter Files noted, ‘were satirical in nature, nearly all… were relatively low engagement.’”
“More to come soon,” Rep. Jim Jordan (R-Ohio) promised Monday in a post on the social media platform formally known as Twitter, declaring the court’s ruling to be a “Huge win for FREE SPEECH.”
“We won’t stop our work exposing Big Tech and the Biden Administration’s censorship efforts,” Jordan vowed.