The Fifth Circuit Court of Appeals ruled Friday that the Biden Administration likely violated the First Amendment by influencing tech companies to censor content on the coronavirus and elections.
The ruling also removed restrictions “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,” according to the Washington Post. The appeals court found that those agencies and departments had not coerced social media sites to censor content.
Still, this is a huge victory for free speech, and the court was specific and breathtaking in its criticisms.
“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.”
“Responsible actions”? And how “independent” were the choices made about the kinds of information that was allowed to see the light of day? And how many times were those decisions wrong?
The Democrats can scream all they want to about Republicans “destroying democracy.” But what the hell do you call this?
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.
Government coercion of tech companies was similar to a mafia boss trying to get the cooperation of a reluctant businessman:
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.
Nice company ya got there. Be a shame if anything happened to it.
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Evelyn Douek, assistant professor at Stanford Law, said the case was a “strong candidate for the Supreme Court to weigh in, given the law isn’t clear, the issues are so important, and courts have come to different conclusions.”
Indeed, this is an issue that may take several Supreme Court decisions to resolve completely. That the government needs to communicate with the people is not at issue. But what kinds of communication? Where’s the dividing line between “advising” and “coercion”? What does protecting “lawful content” mean?
You can bet that the Biden administration will stretch the meaning of this ruling to its fullest to continue to stifle speech it deems “dangerous.”
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