Appeals Court Issues Injunction Against Biden Admin Collusion and Coercion Of Big Tech Censorship Of Political Opponents
“the enjoined Defendants cannot coerce or significantly encourage a platform’s content-moderation decisions”
One of the most stunning decisions on government collusion and bullying of big tech to censor political opponents – particularly on Covid – came in a district court decision in a case brought by Missouri and Lousiana, later joined by certain individuals.
The Plaintiffs are likely to succeed on the merits in establishing that the Government has used its power to silence the opposition. Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; opposition to the lab-leak theory of COVID-19; opposition to the validity of the 2020 election; opposition to President Biden’s policies; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power. All were suppressed. It is quite telling that each example or category of suppressed speech was conservative in nature. This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech. American citizens have the right to engage in free debate about the significant issues affecting the country.
Although this case is still relatively young, and at this stage the Court is only examining it in terms of Plaintiffs’ likelihood of success on the merits, the evidence produced thus far depicts an almost dystopian scenario. During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian “Ministry of Truth.”721 [emphasis added]
The 5th Circuit Court of Appeals just issued an Opinion substantially upholding the district court findings and issuing a modified injunction:
A group of social-media users and two states allege that numerous federal officials coerced social-media platforms into censoring certain socialmedia content, in violation of the First Amendment. We agree, but only as to some of those officials. So, we AFFIRM in part, REVERSE in part, VACATE the injunction in part, and MODIFY the injunction in part.
The district court’s judgment is AFFIRMED with respect to the White House, the Surgeon General, the CDC, and the FBI, and REVERSED as to all other officials. The preliminary injunction is VACATED except for prohibition number six, which is MODIFIED as set forth herein. The Appellants’ motion for a stay pending appeal is DENIED as moot. The Appellants’ request to extend the administrative stay for ten days following the date hereof pending an application to the Supreme Court of the United States is GRANTED, and the matter is STAYED.
GREAT NEWS: In our 1st Amendment lawsuit, the 5th Circuit Court just issued an injunction preventing the White House, CDC, Surgeon General and FBI to coerce or encourage social-media companies to remove or suppress posted content containing protected free speech. pic.twitter.com/nOz9s4kWex
— Martin Kulldorff (@MartinKulldorff) September 8, 2023
This is a major victory. Plaintiffs have prevailed in Missouri v. Biden. The Fifth Circuit narrowed slightly, but enjoined the White House, Surgeon General, CDC, & FBI from "coerc[ing] or significantly encourage a platform’s content-moderation decisions."https://t.co/lwBzszWwLm
— Jenin Younes (former handle @leftylockdowns1) (@JeninYounesEsq) September 8, 2023
MORE TO FOLLOW
The court found that seveal aspects of the District Court injunction were overly broad, but upheld a key provision and imposed its own wording. Here’s the key part of the ruling on the injunction as it survives:
Like the Seventh Circuit’s preliminary injunction in Backpage.com, we endeavor to modify the preliminary injunction here to target the coercive government behavior with sufficient clarity to provide the officials notice of what activities are proscribed. Specifically, prohibition six of the injunction is MODIFIED to state:
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
Under the modified injunction, the enjoined Defendants cannot coerce or significantly encourage a platform’s content-moderation decisions. Such conduct includes threats of adverse consequences—even if those threats are not verbalized and never materialize—so long as a reasonable person would construe a government’s message as alluding to some form of punishment. That, of course, is informed by context (e.g., persistent pressure, perceived or actual ability to make good on a threat). The government cannot subject the platforms to legal, regulatory, or economic consequences (beyond reputational harms) if they do not comply with a given request. See Bantam Books, 372 U.S. at 68; Okwedy, 333 F.3d at 344. The
enjoined Defendants also cannot supervise a platform’s content moderation decisions or directly involve themselves in the decision itself. Social-media platforms’ content-moderation decisions must be theirs and theirs alone. See Blum, 457 U.S. at 1008. This approach captures illicit conduct, regardless of
Because the modified injunction does not proscribe Defendants from activities that could include legal conduct, no carveouts are needed. There are two guiding inquiries for Defendants. First, is whether their action could be reasonably interpreted as a threat to take, or cause to be taken, an official action against the social-media companies if the companies decline Defendants’ request to remove, delete, suppress, or reduce protected free speech on their platforms. Second, is whether Defendants have exercised active, meaningful control over the platforms’ content-moderation decisions to such a degree that it inhibits the platforms’ independent decision-making.
🚨BREAKING: The Fifth Circuit Court of Appeals UPHELD the District Court ruling in Missouri v. Biden, yet again enjoining the Biden Administration from colluding with social media companies to censor speech.
This is yet another big win – I'm proud to have filed this case. pic.twitter.com/0ZrTudrUa1
— Eric Schmitt (@Eric_Schmitt) September 8, 2023
Keep in mind this injunction only applies to government pressure, it does not prevent big tech and big social media from on their own censoring conservatives, which we all know they do on a far broader basis than is coerced by the government.
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