In a major civil rights decision about government censorship, on Friday September 8 the US District Court of Appeals for the Fifth Circuit mostly upheld a lower court decision granting a preliminary injunction that banned federal officials from telling social media companies what materials should be allowed on their sites. This opinion in Missouri v. Biden was written by a three-judge panel who begin by summarizing the case:

“A group of social-media users and two states allege that numerous federal officials coerced social-media platforms into censoring certain social media content, in violation of the First Amendment. We agree, but only as to some of those officials.”

“For the last few years—at least since the 2020 presidential transition—a group of federal officials has been in regular contact with nearly every major American social-media company about the spread of ‘misinformation’ on their platforms. In their concern, those officials—hailing from the White House, the CDC, the FBI, and a few other agencies—urged the platforms to remove disfavored content and accounts from their sites. And the platforms seemingly complied. They gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed users. The platforms also changed their internal policies to capture more flagged content and sent steady reports on their moderation activities to the officials. That went on through the COVID-19 pandemic, the 2022 congressional election, and continues to this day.”

 From COVID-19 Origins to Hunter Biden’s Laptop

The plaintiffs suing include doctors who co-wrote the Great Barrington Declaration, the Gateway Pundit news website, a healthcare activist, and two states. Their posts on topics including COVID-19 origins, vaccine safety, the wisdom of lockdowns, election fraud, and “the Hunter Biden laptop story” were removed or demoted, apparently based on government guidance. Missouri and Louisiana sued to protect, “their sovereign and quasi-sovereign interests in protecting their citizens and the free flow of information.” 

Coercion and Significant Encouragement

While officials are allowed to call attention to content that they believe is hazardous, yet for example one White House official told a platform to take down a post “ASAP.” In another example. An official told a platform to “remove [an] account immediately” as he could not “stress the degree to which this needs to be resolved immediately.” Then President Biden stated that platforms were “killing people” by inaction on misinformation. The appellate panel found that both the White House and the Surgeon General’s office likely coerced platforms based on content and also “significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment.” 

Trial Court Order Modified to Exclude Some Federal Agencies and Refine Prohibited Conduct

The panel narrowed the lower court’s order, to allow, for example, the Surgeon General to “urge” media companies to make sure tobacco ads don’t target kids. The new order prevents the White House, the Surgeon General, CDC, and the FBI from taking any action “to coerce or significantly encourage” media firms to remove or suppress content, while overturning the trial court as to other government agencies. The judges stayed their decision for ten days to allow a government appeal to the US Supreme Court.