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On July 10, I talked with Free Speech advocate Nadine Strossen about Judge Terry A. Doughty’s injunction against the Biden administration, in Missouri v. Biden, calling the government’s actions “the most massive attack against free speech in United States’ history.”
Yesterday, the Fifth Circuit Court of Appeals upheld Judge Doughty’s injunction against the White House, the Surgeon General, the CDC, and the FBI, reversing it only against a few minor government officials.
Key paragraph:
[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.
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Among the victorious plaintiffs were Jay Bhattacharya (see my interview with him here) and Martin Kulldorff (see my interview with him here).
HIGHLIGHTS from the Fifth Circuit’s unanimous decision in Missouri v. Biden
A group of social-media users and two states allege that numerous federal officials coerced social-media platforms into censoring certain social media content, in violation of the First Amendment…
For the last few years—at least since the 2020 presidential transition—a group of federal officials has been in regular contact with nearly every major American social-media company about the spread of “misinformation” on their platforms. In their concern, those officials— hailing from the White House, the CDC, the FBI, and a few other agencies— urged the platforms to remove disfavored content and accounts from their sites. And, the platforms seemingly complied. They gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed users. The platforms also changed their internal policies to capture more flagged content and sent steady reports on their moderation activities to the officials. That went on through the COVID-19 pandemic, the 2022 congressional election, and continues to this day.
Enter this lawsuit. …
Bhattacharya’s and Kulldorff’s sworn declarations allege that their article, the Great Barrington Declaration, which was critical of the government’s COVID-related policies such as lockdowns, was “deboosted” in Google search results and removed from Facebook and Reddit, and that their roundtable discussion with Florida Governor Ron DeSantis concerning mask requirements in schools was removed from YouTube. Kulldorff also claimed censorship of his personal Twitter and LinkedIn accounts due to his opinions concerning vaccine and mask mandates; both accounts were suspended
All five Individual Plaintiffs have stated in sworn declarations that their prior censorship has caused them to self-censor and carefully word social-media posts moving forward in hopes of avoiding suspensions, bans, and censorship in the future.
…
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. Generally speaking, officials from the White House and the Surgeon General’s office had extensive, organized communications with platforms….
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 the platforms did not comply, officials 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. …
When the officials’ demands were not met, the platforms received promises of legal regime changes, enforcement actions, and other unspoken threats.
Here, the officials made express threats … 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.” …
[A]s 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. . . 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.” …
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.20 In doing so, the officials likely violated the First Amendment...
HUGE! 5th Circuit Rules in Social Media Censorship Case!