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:
- Independence Day: Federal Court Enjoins Biden-Big Tech Collusive “far-reaching and widespread censorship campaign” against Conservatives (July 4, 2023)
- Appeals Court Issues Injunction Against Biden Admin Collusion and Coercion Of Big Tech Censorship Of Political Opponents (Sept. 8, 2023)
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.
GREAT NEWS: In our 1st Amendment lawsuit, the 5th Circuit just added the Cybersecurity and Infrastructure Security Agency (CISA) to the earlier injunction that prevents the White House, CDC, the Surgeon General and FBI from coercing social-media companies to censor free speech.👏 pic.twitter.com/xLCkfn1ej2
— Martin Kulldorff (@MartinKulldorff) October 3, 2023
If you don't remember, the Fifth Circuit already handed down a court order blocking the Biden Administration from silencing disfavored viewpoints.
CISA (Cybersecurity and Infrastructure Security Agency housed in DHS) was originally not included in the Fifth Circuit's order.
— Attorney General Andrew Bailey (@AGAndrewBailey) October 3, 2023
We filed a motion asking the Fifth Circuit to include CISA in their court order blocking further First Amendment violations.
It was granted.
— Attorney General Andrew Bailey (@AGAndrewBailey) October 3, 2023
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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