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5th Circuit Broadens Social Media Censorship Injunction To Include Cybersecurity and Infrastructure Security Agency

5th Circuit Broadens Social Media Censorship Injunction To Include Cybersecurity and Infrastructure Security Agency

“CISA—working in close connection with the FBI—held regular industry meetings with the platforms… Like the CDC for COVID-related claims, CISA told the platforms whether certain election related claims were true or false. CISA’s actions apparently led to moderation policies being altered and content being removed or demoted by the recipient platforms.”

While you were watching the House Republicans descend into chaos, the 5th Circuit Court of Appeals issued a new Opinion in the case seeking an injunction against government pressure on social media companies to censor critics of the government and government policies (particularly on Covid and the election).

For background, see these prior posts:

The plaintiffs filed a Petition for Panel Rehearing (so it would go before the same panel), arguing that the prior injunction did not cover enough entities:

Pursuant to Rule 40 of the Federal Rules of Appellate Procedure, Plaintiffs-Appellees Louisiana, Missouri, et al. (“Plaintiffs”) respectfully request that this Court grant panel rehearing; reinstate the injunction, as modified by this Court, to apply to the CISA Defendants and the State Department Defendants; and reinstate the portion of the injunction that prevents federal officials from collaborating with the Election Integrity Partnership and Virality Project (collectively, “EIP”) to censor protected free speech, ROA.26613 (Doc. 294, at 4, ¶ 5). Plaintiffs accept and agree with the vast majority of the Court’s opinion and analysis, but they respectfully submit that this Court overlooked or misapprehended material points of fact relevant to the injunction against the Cybersecurity and Infrastructure Security Agency (“CISA”), the State Department’s Global Engagement Center (“GEC”), and the Election Integrity Partnership/Virality Project (“EIP”). See Fed. R. App. P. 40(a)(2). CISA, in particular, serves as the “nerve center” of federal censorship efforts, and its actions in originating, launching, coordinating, and participating in the EIP constitute particularly egregious violations of the First Amendment.

The 5th Circuit today in an Opinion on Panel Rehearing, granted rehearing, withdrew the prior Opinion, and issued a new Opinion expanding the injunction. As to CISA and the State Department, the 5th Circuit found:

D. Next, we look at CISA. CISA—working in close connection with the FBI—held regular industry meetings with the platforms concerning their moderation policies, pushing them to adopt CISA’s proposed practices for addressing “mis-, dis-, and mal-information.” CISA also engaged in “switchboarding” operations, meaning, at least in theory, that CISA officials acted as an intermediary for third parties by forwarding flagged content from them to the platforms. For example, during a federal election, CISA officials would receive “something on social media that [local election officials] deemed to be disinformation aimed at their jurisdiction” and, in turn, CISA would “share [that] with the appropriate social media compan[y].” But, CISA’s role went beyond mere information sharing. Like the CDC for COVID-related claims, CISA told the platforms whether certain election related claims were true or false. CISA’s actions apparently led to moderation policies being altered and content being removed or demoted by the recipient platforms.

E. Finally, we briefly discuss the remaining offices, namely the NIAID and the State Department. Generally speaking, the NIAID did not have regular contact with the platforms or flag content. Instead, NIAID officials were—as evidenced by internal emails—concerned with “tak[ing] down” (i.e., discrediting) opposing scientific or policy views. On that front, Director Anthony Fauci publicly spoke in favor of certain ideas (e.g., COVID lockdowns) and against others (e.g., the lab-leak theory). In doing so, NIAID officials appeared on podcasts and livestreams on some of the platforms. Apparently, the platforms subsequently demoted posts that echoed or supported the discredited views.

The State Department, on the other hand, communicated directly with the platforms. It hosted meetings that were meant to “facilitate [] communication” with the platforms. In those meetings, it educated the platforms on the “tools and techniques” that “malign” or “foreign propaganda actors” (e.g., terrorist groups, China) were using to spread misinformation. Generally, the State Department officials did not flag content, suggest policy changes, or reciprocally receive data during those meetings.

* * *

Ultimately, we find the district court did not err in determining that several officials—namely the White House, the Surgeon General, the CDC, the FBI, and CISA—likely coerced or significantly encouraged social-media platforms to moderate content, rendering those decisions state actions.20 In doing so, the officials likely violated the First Amendment.21

The Court went on to reissue its injunction, including against CISA this time. The 5th Circuit stayed the injunction for 10 days to give the government time to seek a stay from the Supreme Court.

This is a BFD.

What happens next?

There already is a Petition to the U.S. Supreme Court seeking a stay, filed after the first opinion. Presumably it will be renewed as to this new Opinion, as the Supreme Court has been notified of this new development.



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Shine, I wish they would go ahead and send us to the gulag.

I haven’t seen any signs of the republicans descending into chaos. They’ll probably just go from mildly ineffective to more mildly ineffective or the reverse. The real split is across Trump and that hasn’t changed.

Excellent. Hopefully we can get these totalitarian tactics declawed permanently.

    PrincetonAl in reply to CommoChief. | October 4, 2023 at 3:15 am

    There is no permanently declawing Marxists, but it would be an important setback for them.

    Some lawsuits that get settled for real money and some loosening of qualified immunity for the participants in these activities though would be a next step that would pair nicely with a win at the Supreme Court on this issue.

      Paddy M in reply to PrincetonAl. | October 4, 2023 at 12:56 pm

      They won’t stop until they start going to prison. A communist school official is Loudon Co., VA is looking at 12 months for retaliation. It’s a start and more need to follow suit.

Some people notice. Far too many do not. This case is fundamental to what is going on today, trying to save the essence of what makes America great, an open society in spirit and deed.

What weight Louisville Slugger will we need to employ to remind the federal government that it is not now, and was never delegated the power to be, the arbiter of truth?

    PrincetonAl in reply to henrybowman. | October 4, 2023 at 3:19 am

    A loosening of qualified immunity for federal employees who violate Bill of Rights freedoms followed by a few lawsuits settled for seven figures feels like a pretty hefty bat to me.

    But I’m open to other suggestions.

      Gosport in reply to PrincetonAl. | October 4, 2023 at 6:01 am

      Loosening qualified immunity, both de facto and de jure, is absolutely a necessary first step.

      Too many are able to hide in the Borg-like collective of the progressive wing of the government. Until they can be separated, held responsible and feel deep personal pain/ruin for their transgressions they will continue to occur.

      I’m thinking here of the Lois Lerners and the Peter Strozks who commit the most heinous sins against the people then duck back into the protection of the hive thereby avoiding the punishment (such as real jail time) which they so richly deserve.

Once the court has found the conduct unconstitutional, why can’t an injunction be issued against the government in general, as activity the Constitution does not permit by any government agency or office? Because you know what will happen if the injunction applies specifically only to named alphabet agencies (even if against all of them) – the Swamp will create a new office, claim it wasn’t named in the injunction, and continue to march.

    Gosport in reply to DaveGinOly. | October 4, 2023 at 6:10 am

    It certainly can be a blanket injunction. The problem is that up until now the Republicans haven’t had the balls to do such a thing and make it stick.

    Like so many of the half-assed, click-bait, virtue signalling actions that they like to do which looks good until it happens again and we find the law or whatever had absolutely no real teeth or could be evaded.

    Take the STOCK Act for example. Abolishing insider trading looked great until they were allowed to quietly gut it a year later by removing the public reporting component which in effect allowed the trading to go on but be kept secret from the public. Both sides of the aisle were deeply guilty in that one.

      JohnSmith100 in reply to Gosport. | October 4, 2023 at 7:20 am

      Even worse is that Congress gave themselves a pass to insider trade, in turn that gave big business a way to bribe them with tips.

retiredcantbefired | October 4, 2023 at 11:52 am

I’m just pleased to see Prof Jacobson returning to coverage of Missouri v. Biden. Far too little attention has been paid to it here.

I would have liked to see the 5th Circuit adding State and NIAID to the injunction. And restoring quangos (quasi, not really nongovernmental organizations) to the list of those enjoined. But the move against CISA does help.