How Feds ‘Skirted’ Constitution to Censor Content Online

See my previous post on this topic:

REASON-TV

These two shorter video clips are taken from a longer conversation with Stanford’s Jay Bhattacharya and New Civil Liberties Alliance senior counsel John Vechionne.

By focusing their sights on government actors instead of private companies under their boot, the Missouri v. Biden plaintiffs have chosen exactly the right target.

YouTube removed this March 2021 roundtable organized by Florida governor Ron DeSantis because of the views Bhattacharya and others expressed about masking children in school. Was this part of an illegal censorship campaign, as a lawsuit in federal court alleges?

JOHN SOLOMON

(Oct 1, 2022) “Anyone who’s concerned about free speech… this ought to scare you.” John Solomon joins Dr. Gina with his report on a private group that worked with the government to submit requests for censorship online during the 2020 election AND THEY’RE DOING IT AGAIN!

WALL STREET JOURNAL

The WALL STREET JOURNAL writes about the ruling as well:

  • 5th Circuit finds Biden White House, CDC likely violated First Amendment — The three judge panel found that contacts with tech companies by officials from the White House, the surgeon general’s office, the CDC and the FBI likely amounted to coercion

The U.S. Court of Appeals for the 5th Circuit on Friday ruled that the Biden White House, top government health officials and the FBI likely violated the First Amendment by improperly influencing tech companies’ decisions to remove or suppress posts on the coronavirus and elections.

The decision, written unanimously by three judges nominated by Republican presidents, was likely to be seen as victory for conservatives who have long argued that social media platforms’ content moderation efforts restrict their free speech rights. But some advocates also said the ruling was an improvement over a temporary injunction U.S. District Judge Terry A. Doughty issued July 4.

David Greene, an attorney with the Electronic Frontier Foundation, said the new injunction was “a thousand times better” than what Doughty, an appointee of former president Trump, had ordered originally.

Doughty’s decision had affected a wide range of government departments and agencies, and imposed 10 specific prohibitions on government officials. The appeals court threw out nine of those and modified the 10th to limit it to efforts 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.”
The 5th Circuit panel also limited the government institutions affected by its ruling to the White House, the surgeon general’s office, the Centers for Disease Control and Prevention and the FBI. It removed restrictions Doughty had imposed on the departments of State, Homeland Security and Health and Human Services and on agencies including the U.S. Census Bureau, the National Institute of Allergy and Infectious Diseases, and the Cybersecurity and Infrastructure Security Agency. The 5th Circuit found that those agencies had not coerced the social media companies to moderate their sites.

Read the 5th Circuit’s ruling

The judges wrote that the White House likely “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences.” They also found the White House “significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment.”

A White House spokesperson said in a statement that the Justice Department was “reviewing” the decision and evaluating its options.
“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,” the White House official said. “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.”

The decision, by Judges Edith Brown Clement, Don R. Willett and Jennifer Walker Elrod, is likely to have a wide-ranging impact on how the federal government communicates with the public and the social media companies about key public health issues and the 2024 election.

The case is the most successful salvo to date in a growing conservative legal and political effort to limit coordination between the federal government and tech platforms. This case and recent probes in the Republican-controlled House of Representatives have accused government officials of actively colluding with platforms to influence public discourse, in an evolution of long-running allegations that liberal employees inside tech companies favor Democrats when making decisions about what posts are removed or limited online.

The appeals court judges found that pressure from the White House and the CDC affected how social media platforms handled posts about covid-19 in 2021, as the Biden administration sought to encourage the public to obtain vaccinations.

The judges detail multiple emails and statements from White House officials that they say show escalating threats and pressure on the social media companies to address covid misinformation. The judges say that the officials “were not shy in their requests,” calling for posts to be removed “ASAP” and appearing “persistent and angry.” The judges detailed a particularly contentious period in July of 2021, which reached a boiling point when President Biden accused Facebook of “killing people.”

“We find, like the district court, that the officials’ communications — reading them in ‘context, not in isolation’ — were on-the-whole intimidating,” the judges wrote.
The judges also zeroed in on the FBI’s communications with tech platforms in the run-up to the 2020 elections, which included regular meetings with the tech companies. The judges wrote that the FBI’s activities were “not limited to purely foreign threats,” citing instances where the law enforcement agency “targeted” posts that originated inside the United States, including some that stated incorrect poll hours or mail-in voting procedures.

The judges said in their rulings that the platforms changed their policies based on the FBI briefings, citing updates to their terms of service about handling of hacked materials, following warnings of state-sponsored “hack and dump” operations.

[….]

The 5th Circuit ruling reversed Doughty’s order specifically enjoining the actions of leaders at DHS, HHS and other agencies, saying many of those individuals “were permissibly exercising government speech.”

“That distinction is important because the state-action doctrine is vitally important to our Nation’s operation — by distinguishing between the state and the People, it promotes ‘a robust sphere of individual liberty,’” the 5th Circuit judges wrote.

Yet Friday’s order still applies to a wide range of individuals working across the government, specifically naming 14 White House officials, including five who are no longer in office. The order specifically names Surgeon General Vivek H. Murthy and another member of his office, three CDC staffers and two FBI officials, including the head of the foreign influence task force and the lead agent of its cyber investigative task force in San Francisco.

White House press secretary Karine Jean-Pierre is among the White House officials named.

Stanford Law School professor Daphne Keller said the 5th Circuit’s ruling appeared to allow “a lot of normal communications as long as they are not threatening or taking over control of platforms’ content decisions.”

“But it also says they can’t ‘significantly encourage’ platforms to remove lawful content, so the real question is what that means,” she said.

Friday’s decision came in response to a lawsuit brought by Republican attorneys general in Louisiana and Missouri who allege that government officials violated the First Amendment in their efforts to encourage social media companies to address posts that they worried could contribute to vaccine hesitancy during the pandemic or upend elections.

Missouri Attorney General Andrew Bailey celebrated the decision as a victory in a statement.

“The first brick was laid in the wall of separation between tech and state on July 4,” he said. “Today’s ruling is yet another brick.”

ACLJ: WILL END UP IN FRONT OF THE SUPES

ACLJ make the point that it will end up in front of SCOTUS.

We’re celebrating a massive free speech victory as the Fifth Circuit Court of Appeals upheld the ruling that President Joe Biden cannot censor conservatives on social media. We also give an update on our newest legal battle on behalf of Charlie Kirk and Turning Point USA against digital censorship. We must not allow the Biden Administration to interfere in future elections as it did with President Donald Trump in the 2020 presidential election by censoring the Hunter Biden laptop story. 

Big Win for the 1st / Big Loss for David French

5th circuit – Biden White House, FBI likely violated the first amendment

TWITCHY!

While the Second Amendment is being violated in Arizona, we are getting news tonight that the First Amendment is being honored in the Fifth Circuit court of appeals.

Previously, we told you about Missouri v. Biden. As we said on July 4 of this year when the district court issued an injunction:

This is huge deal. This is potentially a landmark case on how the First Amendment applies in the age of social media[.]

We also covered that case herehere and here.

Generally speaking, it is widely believed that social media is free to censor people as they see fit. We believe there might be some legal arguments that can be made against that, but that is a common belief. ‘They’re just private companies making their own decisions’ is the argument offered by people defending this censorship. For instance, here’s uber-weenie David French making that argument:

We have suspected for years that this was French just running interference, and that, in fact, he likes Internet censorship. Recently, he confirmed our suspicions: 

Antisemitism speech is free speech, however vile it can be. So French is upset that Twitter/X is allowing for free speech. We would rather have people feel free to say vile things then have someone decide what kind of speech is allowed.

But the other retort to the French view is presented in Missouri v. Biden, because the argument in that case is that the social media companies were not simply acting on their own. Private action can become government action, under the right circumstances—the most obvious being when the government coerces the private action. The lower court found that various social media companies—like Twitter/X, Meta/Facebook and Google/YouTube were—were not censoring based on their own desires, but because of illegal government pressure. As a result, the District Court issued a preliminary injunction, prohibiting a broad range of communication by the government, and it applied nationwide. If you have been on social media since then, this order protected your right to free speech.

The Biden administration appealed and tonight they largely lost. The Fifth Circuit largely upheld that order, explaining that this was the standard for when private action became state action.

The government cannot abridge free speech. U.S. Const. amend. I. A private party, on the other hand, bears no such burden—it is ‘not ordinarily constrained by the First Amendment.’ Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). That changes, though, when a private party is coerced or significantly encouraged by the government to such a degree that its ‘choice’—which if made by the government would be unconstitutional, Norwood v. Harrison, 413 U.S. 455, 465 (1973)—’must in law be deemed to be that of the State.’ Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Barnes v. Lehman, 861 F.2d 1383, 1385–36 (5th Cir. 1988). This is known as the close nexus test.

They also found that the Plaintiffs, including many doctors, state officials and even the Gateway Pundit had met the requirement that there be a sufficient threat of irreparable harm:

We agree that the Plaintiffs have shown that they are likely to suffer an irreparable injury. Deprivation of First Amendment rights, even for a short period, is sufficient to establish irreparable injury. 

So, they largely upheld the lower court’s order. They did tighten up the list of officials being enjoined and they clarified the language so it clearly prevented both coercion and ‘significant encouragement’ as the law prohibits. This means that the Biden administration can ask nicely for censorship but can’t engage in the kind of pressure campaigns it has in the past…..

 

Obama `Struck Down` by the 5th Circuit ~ Homework

Via Gateway Pundit:

This is what happens when our Constitutional lecturer president stands on the White House lawn and astoundingly challenges the authority and credibility of the Supreme Court; he gets issued a homework assignment on the fundamentals of our Constitution.

Obama’s radical statements yesterday were so inconceivably stupid and dangerous he managed to completely offend and alarm the entire U.S. 5th Circuit Court of Appeals Panel.  So, today, during a hearing over a separate ObamaCare lawsuit, Appellate Judge Jerry Smith issued an Order for Obama’s Department of Justice to explain by Thursday whether the administration ”recognizes that federal courts have the authority to strike federal statutes” that are unconstitutional… single-spaced and on no fewer than three pages.

According to Fox News,

A federal appeals court is striking back after President Obama cautioned the Supreme Court against overturning the health care overhaul and warned that such an act would be “unprecedented.”

A three-judge panel for the 5th Circuit Court of Appeals on Tuesday ordered the Justice Department to explain by Thursday whether the administration believes judges have the power to strike down a federal law.

One justice in particular chided the administration for what he said was being perceived as a “challenge” to judicial authority — referring directly to Obama’s latest comments about the Supreme Court’s review of the health care case.

The testy exchange played out during a hearing over a separate ObamaCare challenge. It marked a new phase in the budding turf war between the executive and judicial branches.

Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?” Judge Jerry Smith asked at the hearing.

Smith also made clear during that exchange that he was “referring to statements by the president in the past few days to the effect … that it is somehow inappropriate for what he termed unelected judges to strike acts of Congress.”

“That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority,” Smith said. “And that’s not a small matter.”

Smith ordered a response from the department within 48 hours. The related letter from the court, obtained by Fox News, instructed the Justice Department to provide an explanation of “no less than three pages, single spaced” by noon on Thursday.