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.
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.
