Tipsheet

Biden Administration Continues to Lose in the Courts Over Censoring Americans

Rebecca Downs
Rebecca Downs  |  September 10, 2023 10:30 AM

The Biden administration lost yet again in the courts on Friday, as the 5th Circuit Court of Appeals unanimously upheld key provisions of the lower court's decision in Missouri v. Biden, thus prohibiting the administration from colluding with Big Tech to censor Americans. The ruling is more narrow in scope, but is definitely being seen as a win for free speech.

Chief among those celebrating includes Sen. Eric Schmitt (R-MO), who, when he was serving as Missouri's attorney general, filed suit against the Biden administration in 2022. Louisiana Attorney General Jeff Landry and several individuals joined in as well.

"This evening, the Fifth Circuit Court of Appeals upheld the critical ruling by the District Court preventing the federal government from censoring speech - this is another massive victory for free speech," Schmitt said in a statement. "Because of Missouri v. Biden, the federal government is prohibited yet again from colluding with social media giants to censor freedom of speech online. I’m proud to have filed Missouri v. Biden when I was Missouri’s Attorney General, and I will continue to fight for freedom of speech here in the Senate." 

Susie Moore at our sister site of RedState has a great explanation of what the ruling actually detailed, including how narrow the scope now is.The case discussed the communications between officials from the White House, CDC, FBI, as well as Cybersecurity and Infrastructure Security Agency (CISA), National Institute of Allergy and Infectious Diseases (NIAID), and the State Department, and social media platforms. CISA, NIAID, and the State Department are now removed from the injunction.

"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," the ruling said.

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The judges also perfectly illustrated how the administration colluded with, even bullied social media platforms, with original emphasis:

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 found that the lower court was correct in issuing an injunction, but narrowed the scope, including when it comes to doing away with provisions. The sixth, now modified, provision from the ruling reads:

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.

As Schmitt mentioned in his Twitter thread, we also know about how the Biden administration colluded with Big Tech as a result of the Twitter Files. House Judiciary Chairman Jim Jordan (R-OH), in addition to subpoenaing the heads of social media platforms, has also been releasing the Facebook Files. The most recent release focused on how the Biden administration relied on a foreign group out of the United Kingdom known as the Center for Countering Digital Hate, which has targeted Townhall.

The administration has been given 10 days to file an appeal with the U.S. Supreme Court, with Moore questioning if they even will. Upon losing in the lower courts--in a decision fittingly handed down on the 4th of July--the administration quickly appealed. White House Press Secretary Karine Jean-Pierre had also said the following day that the administration disagreed with the ruling.

When asked by a reporter "does the White House have a--have a response to the judge basically saying that this is the most massive attack on free speech in the U.S. history," Jean-Pierre responded she was deferring to the DOJ, but also made clear "if you’re asking me if we agree or disagree, we certainly disagree with this decision."

USA Today included a statement from the White House in their coverage of the 5th Circuit's decision. "DOJ is reviewing the court’s decision and will evaluate its options in this case," the White House said. "This administration has promoted responsible actions to protect public health, safety, and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections. Our consistent view remains that social media platforms have a critical responsibility to take account of the effects their platforms are having on the American people, but make independent choices about the information they present."