The 5th Circuit has ruled that while the Biden Administration can continue to remain in contact with social media companies, overturning a lower court's decision in part, it still found that the White House most likely violated the First Amendment rights of social media companies by coercing them to take down social media disinformation posts about COVID vaccination and The Big Lie on 2020 election fraud, even though they were falsehoods.
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 was likely to be seen as victory for conservatives who’ve 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.
Read the 5th Circuit's ruling
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 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 elections.
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.
What this means is that the White House's plans to patrol social media for disinformation campaigns by foreign actors is reduced to ashes, and that it's not like Twitter or Facebook were going to cooperate anyway.
Besides, the Roberts Court will almost certainly side with Republicans here, it's just a matter of how pervasive the court order is. I don't expect the executive branch to be cut off from any contact with social media companies whatsoever as with Judge Doughty's initial ruling, but a SCOTUS precedent that forbids any state or federal moderation of social media content is right in line with what Justices Alito or Thomas would do.
Also, the ruling all but begs the Biden administration to appeal this directly to the Supreme Court, giving the administration until a week from Monday to do so before the order takes effect. An internet freed from any regulations and responsibilities would be a tremendous weapon for the right-wing ghouls and trolls to unleash upon the rest of us.
Regardless,expect your social media feeds to be flooded by targeted political ads and far worse in the next 14 months.
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