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5th Circuit Enjoins Biden Administration from Additional 1st Amendment Violations

5th Circuit Enjoins Biden Administration from Additional 1st Amendment Violations.

Posted by Ed Folsom, September 9, 2023

Back in July, I posted about the decision of the U.S. District Court Judge in Missouri v. Biden, enjoining a number of Biden administration officials from communications with social media platforms. The Plaintiffs include the States of Missouri and Louisiana, whose public officials had some of their posts removed from social media platforms under pressure from the Biden Administration and its agencies, along with a number of private parties who suffered the same injury.

The Biden Administration appealed the District Court’s ruling to the 5th Circuit Court of Appeals. Yesterday, the 5th Circuit held that: (1) the plaintiffs have standing to pursue their action; (2) The Plaintiffs have established that the Biden White House, the Surgeon General, and the FBI all likely coerced and significantly encouraged social media platforms to violate the Plaintiffs’ first amendment rights; (3) The Plaintiffs established that the CDC likely significantly encouraged violations of the Plaintiffs’ first amendment rights, but the Plaintiffs failed to establish that the CDC likely coerced such violations; (4) The Plaintiffs failed to establish that the State Department, the National Institute of Allergy and Infectious Diseases (NIAID), and the Cybersecurity and Infrastructure Security Agency (CISA) likely either coerced or significantly encouraged (as opposed to more mildly encouraging) social media platforms to take down or throttle the Plaintiffs’ posts or to deplatform them. (Opinion here).

The 5th Circuit found that the District Court’s injunction was overbroad in the scope of its prohibition. They narrowed the injunction’s scope and ordered that it applies to the Biden White House, the Surgeon General, the FBI and the CDC, only.

The modified injunction states:

“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.”

In the course of its ruling, the 5th Circuit observed:

“The Supreme Court has rarely been faced with a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life. Therefore, the 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.’ We see no error or abuse of discretion in that finding.”