The U.S. Fifth Circuit Court of Appeals has upheld a district court’s ruling which ordered a preliminary injunction prohibiting federal authorities from coercing and coordinating with online platforms to censor content.
The appeals court “has shut down the ‘nerve center’ of federal government-led speech policing, correcting a critical error in its prior jurisprudence and striking a major blow for the First Amendment and against deep-state election interference,” Ben Weingarten wrote in an analysis of the ruling for The Federalist.
The ruling came in the landmark free speech case Missouri v. Biden.
The critical error that was corrected regarded the “nerve center” of the Biden censorship regime, the Cybersecurity and Infrastructure Security Agency (CISA). In the appeals court’s previous decision, CISA was not subject to the injunction.
CISA helped “originate, consult, network, and partner with often government-linked third parties to themselves serve as First Amendment-circumventing, mass-surveillance, and mass-censorship enterprises,” Weingarten noted. “For the appeals court not to subject CISA to its injunction was untenable. It was akin to prosecuting a mob family but letting the boss skate and continue running his ‘waste management’ business.”
The plaintiffs in Missouri v. Biden petitioned the Fifth Circuit for a rehearing and a reinstatement of the injunction on CISA.
In its revised opinion, the Fifth Circuit noted that CISA had in fact likely violated the First Amendment in “coerc[ing] or significantly encourag[ing] social-media platforms to moderate content” beginning during the 2020 presidential election.
Before the case landed in appellate court, Louisiana District Judge Terry A. Doughty declared in a July 4 ruling that federal authorities from the Biden White House to the FBI and CDC had likely engaged in “the most massive attack against free speech in United States’ history.”
Judge Doughty found that the Biden team had colluded with social media platforms to silence wrong-thinking Americans on matters from election integrity to the origins of Covid under the guise of combating national security or public health-threatening “mis-, dis-, and mal-information.”
The Biden administration appealed the decision to the Fifth Circuit, “ironically arguing that by being barred from censoring disfavored speech by social media proxy, the government itself was being censored,” Weingarten noted.
The Fifth Circuit wasn’t buying that argument. It concurred with the lower court’s ruling that the administrative state’s pressuring of and partnering with social media companies to squelch Americans’ speech on expressly political and subjective matters effectively rendered the platforms state actors and their “content moderation” efforts an assault on the First Amendment.
Having appealed the Fifth Circuit’s original ruling to the Supreme Court, all indications are that the Biden team will appeal the modified ruling to that venue as well.
Anticipating that effort, Missouri Attorney General Andrew Bailey tweeted in the wake of the revised ruling, “We look forward to defending your First Amendment rights at the nation’s highest court.”
Weingarten concluded: “If so, the case will arrive at the highest court in the land with the plaintiffs’ central argument having been vindicated now at the district and appellate levels — that argument being that by leaning on social media platforms with the threat of a government gun to censor ideas the government doesn’t like, the government violated our right to free speech.
“Should the Supreme Court rule, it is imperative that it secure these rights and uphold the freeze on speech policing. A free and fair election in 2024 demands it.”
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