A federal appeals court has broadened the scope of a prior ruling limiting the Biden administration’s ability to pressure social media companies to censor content the administration disfavors.
Last month’s ruling from the Fifth Circuit Court of Appeals held that the Biden administration likely violated the First Amendment by using the White House, Centers for Disease Control and Prevention (CDC), FBI, and other agencies to pressure social media companies to remove certain content and accounts from their sites.
The platforms “gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed users,” as stated in the court’s decision. “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.”
Now, the Fifth Circuit has modified its preliminary injunction to include the U.S. Cybersecurity and Infrastructure Security Agency (CISA).
The three-judge panel stated in its expanded ruling that CISA was the primary facilitator of the FBI’s interactions with social media companies.
“CISA used its frequent interactions with social-media platforms to push them to adopt more restrictive policies on censoring election-related speech,” the court explained.
“And CISA officials affirmatively told the platforms whether the content they had ‘switchboarded’ was true or false. Thus, when the platforms acted to censor CISA-switchboarded content, they did not do so independently,” the judges continued. “Rather, the platforms’ censorship decisions were made under policies that CISA has pressured them into adopting and based on CISA’s determination of the veracity of the flagged information. Thus, CISA likely significantly encouraged the platforms’ content-moderation decisions and thereby violated the First Amendment.”
The decision was hailed as a win by Missouri Attorney General Andrew Bailey, whose office was among several plaintiffs who filed a motion asking the Fifth Circuit to add CISA to their court order blocking the government from censoring Americans.
“CISA is the ‘nerve center’ of the vast censorship enterprise, the very entity that worked with the FBI to silence the Hunter Biden laptop story,” Bailey said in a statement. “When it comes to defending the Constitution, Missouri doesn’t back down.”
The judges paused the new injunction for 10 days to provide the Biden administration the option of petitioning the U.S. Supreme Court.