The Fifth Circuit Court of Appeals has enjoined the Biden administration from suppressing Americans’ free speech on social media outlets. A three-judge panel made crucial and damning findings of fact and published a new injunction against the president of the United States and his minions. “White House officials, in conjunction with the Surgeon General’s office, coerced and significantly encouraged the platforms to moderate content,” the ruling declared.
Two states, a news organization, and several citizens sued in Missouri v. Biden. A lower court ruled against the Biden administration, which then appealed the decision. Examining the lower court’s injunction, the appeals court found that most provisions were overbroad, redundant, and inappropriately applied – but not all, and not the most crucial points. “[T]he 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.’”
Biden Admin Violated the First Amendment
The new ruling states as a matter of law that at least since the 2020 presidential transition, on through the COVID-19 pandemic, the 2022 congressional election, and continuing to this day:
“[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.”
(Photo by Scott Olson/Getty Images)
Instead of directing the federal district court to craft an injunction compliant with its direction, the Fifth Circuit took the extraordinary action of writing it themselves. It said: “Under the modified injunction, the enjoined Defendants cannot coerce or significantly encourage a platform’s content-moderation decisions.” However, much of the court’s 74-page opinion wrestled with when officials’ speech constituted coercion and which test to apply in evaluating the actions of Biden’s key people.
This opinion and order was not signed by any of the judges but was recorded as “Per Curiam,” meaning they were in unanimous agreement. All three were appointed by Republican presidents, one by Trump and one by each President Bush. When the Supreme Court has not adopted a nationwide rule for legal analysis for a given issue, Federal Courts of Appeals must adopt their own. Here, the court needed to decide whether the Biden officials’ messages could reasonably be construed as threats of adverse consequences.
Ready for SCOTUS Review
The judges used a four-part test used in the Second Circuit and adopted by the Ninth Circuit as well – placing them on rock-solid legal ground. They said: “we look to (1) the officials’ word choice and tone; (2) the recipient’s perception; (3) the presence of authority; and (4) whether the speaker refers to adverse consequences.” And? “[T]he officials made clear that the platforms would suffer adverse consequences if they failed to comply, through express or implied threats, and thus the requests were not optional.”
President Biden and his people can continue to fight the court order demanding they respect Americans’ First Amendment rights via two avenues. They may ask the Fifth Circuit Court of Appeals to reconsider the case in an en banc review, or they could ask the Supreme Court to hear it.
