Court Hands Biden Admin Unfavorable Ruling in Censorship Lawsuit

President Joe Biden during a press briefing at the White House in Washington on April 26, 2023. (Madalina Vasiliu/The Epoch Times)

An appeals court has dealt the Biden administration a blow in a censorship-by-proxy lawsuit brought by two Republican attorneys general, with the court expanding a ban on the Biden administration’s contacts with social media companies include the Cybersecurity and Infrastructure Security Agency (CISA), which pushed platforms to crack down on “mis-, dis-, and mal-information.”

The Fifth Circuit Court of Appeals has added CISA to a list of government agencies that a preliminary injunction issued earlier this year banned from contacting social media companies to censor constitutionally protected free speech.

“The district court’s judgment is AFFIRMED with respect to the White House, the Surgeon General, the CDC, the FBI, and CISA and REVERSED as to all other officials,” reads the Oct. 3 ruling (pdf) from the 5th Circuit.

The initial injunction came in response to a censorship-by-proxy lawsuit brought by attorneys general in Louisiana and Missouri who have accused Biden administration officials and various government agencies of pressuring social media companies to suspend accounts or take down posts.

The Biden administration has argued that it did nothing illegal and only tried to mitigate the hazards of online misinformation by alerting social media companies to content that violated their own policies.

Analysts expect that the Justice Department (DOJ), which is representing the Biden administration in this case, will now turn to the U.S. Supreme Court and ask for the injunction to be frozen.

A CISA spokesperson said the agency would not comment on ongoing litigation but offered a general statement from CISA Executive Director Brandon Wales.

“CISA does not and has never censored speech or facilitated censorship; any such claims are patently false,“ Mr. Wales said. ”Every day, the men and women of CISA execute the agency’s mission of reducing risk to U.S. critical infrastructure in a way that protects Americans’ freedom of speech, civil rights, civil liberties, and privacy.”

“In response to concerns from election officials of all parties regarding foreign influence operations and disinformation that may impact the security of election infrastructure, CISA mitigates the risk of disinformation by sharing information on election literacy and election security with the public and by amplifying the trusted voices of election officials across the nation,” Mr. Wales added.

The DOJ declined comment.

The case—described by some as of key importance to First Amendment protections—has taken a meandering road up to this point.

The Winding Road of Censorship-by-Proxy

Two Republican attorneys general for Louisiana and Missouri originally filed the case on May 5, 2022, at the U.S. District Court for the Western District of Louisiana (case No. 3:22-cv-01213), accusing the Biden administration of violating Americans’ free speech rights by pressuring social media companies to crack down on users and posts it deemed worthy of being scrubbed.

A court then handed the AGs a major win in the form of a historic injunction that barred various Biden administration officials and agencies from contacting social media companies to crack down on constitutionally protected speech.

“The Court has granted our motion to BLOCK top officials in the federal government from violating the First Amendment rights of millions of Americans,” Missouri AG Andrew Bailey wrote in a social media post celebrating the win.

The Biden administration appealed the decision on July 6, 2023, to the Fifth Court of Appeals, where it is being considered (case No. 23-30445).

The Fifth Circuit then upheld key parts of the preliminary injunction in a Sept. 8 decision (pdf), finding that the Biden administration threatened and coerced social media companies to take down content. However, it excluded CISA from the list of agencies prohibited from contacting social media companies.

At the time, the Fifth Circuit found that CISA “did flag content” for action but found that the agency’s conduct didn’t fall into the category of “coercion” because it didn’t have any power over social media companies. The court also found scant evidence that social media companies took action on posts.

“Although CISA flagged content for social-media platforms as part of its switchboarding operations, based on this record, its conduct falls on the ‘attempts to convince,’ not ‘attempts to coerce,’ side of the line.

“Nor is there any indication CISA had power over the platforms in any capacity, or that their requests were threatening in tone or manner,” the fifth court wrote in the Sept. 8 opinion. “Similarly, on this record, their requests—although certainly amounting to a non-trivial level of involvement—do not equate to meaningful control. There is no plain evidence that content was actually moderated per CISA’s requests or that any such moderation was done subject to non-independent standards.”

The Biden administration then asked the U.S. Supreme Court to pause the social media contact ban while it appealed, which the high court did. In a Sept. 14 decision, the Supreme Court put a temporary hold on the order.

This prompted an appeal by the Republican attorneys general, who argued that CISA should be included in the Biden administration’s social media contact ban. With its Oct. 3 decision, the Fifth Circuit granted their motion.

“CISA is the ‘nerve center’ of the censorship enterprise, the very entity that silenced the Hunter Biden laptop story alongside the FBI,” Mr. Bailey wrote in a thread on X on Oct. 3.

The Fifth Circuit’s Oct. 3 opinion states that the court has subsequently found that CISA did, in fact, pressure social media platforms to take down content.

“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,” the judges wrote.

“Thus, CISA likely significantly encouraged the platforms’ content-moderation decisions and thereby violated the First Amendment,” they added.

Mr. Bailey said the Biden administration will likely appeal.

“Joe Biden has promised to appeal to the United States Supreme Court,” he wrote in a post on X. “We look forward to defending your First Amendment rights at the nation’s highest court.”

“When it comes to defending the Constitution, Missouri doesn’t back down,” he added.

The Injunction

Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana wrote in the July 4 injunction (pdf) that various government agencies are prohibited from taking a range of actions regarding social media companies.

Specifically, the agencies and their staff members were prohibited from meeting or contacting by phone, email, or text message or “engaging in any communication of any kind with social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech,” per the injunction.

The agencies are also barred from flagging content on posts on social media platforms and forwarding them to the companies with requests for action such as removing or otherwise suppressing their reach.

Encouraging or otherwise egging on social media companies to change their guidelines for the removal, suppression, or reduction of content that contains protected free speech by the government also isn’t allowed.

“This could be arguably one of the most important First Amendment cases in modern history,” Louisiana Attorney General Jeff Landry, one of the plaintiffs, told The Epoch Times’ “American Thought Leaders” in an interview following the July 4 ruling.

“If you look at the opinion that the judge lays out, he takes from our argument that this is basically one of the most massive undertakings of the federal government to limit American speech in the history of our country. The things that we uncovered, in this case, should be both shocking, appalling, and concerning for all Americans.”

The judge wrote in an accompanying memorandum that the plaintiffs are “likely to succeed on the merits in establishing that the Government has used its power to silence the opposition.”

“Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; opposition to the lab-leak theory of COVID-19; opposition to the validity of the 2020 election; opposition to President Biden’s policies; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power. All were suppressed,” Mr. Doughty wrote.

Mr. Doughty’s injunction kicked off a number of moves by both legal teams, with the Fifth Circuit’s latest ruling being the next chapter in a censorship saga that will likely see a few more twists and turns before its final resolution.