The US Fifth Circuit Court of Appeals has upheld a district court’s ruling that issued a preliminary injunction preventing federal authorities from collaborating with online platforms to censor content. This decision comes as a significant victory for the First Amendment and marks a correction of a critical error in previous jurisprudence, according to an analysis by Ben Weingarten for The Federalist.
This legal development stems from the landmark free speech case known as Missouri v. Biden. The central issue addressed in this case was the role of the Cybersecurity and Infrastructure Security Agency (CISA) in online censorship. In the previous appeals court decision, CISA had not been subjected to the injunction.
CISA was deemed to be a key player in the federal government’s efforts to regulate online speech, often cooperating with third-party entities linked to the government for mass surveillance and censorship purposes. The decision not to include CISA in the injunction was seen as untenable, akin to prosecuting a criminal organization but allowing its leader to continue operating.
In response to the initial ruling, the plaintiffs in Missouri v. Biden petitioned the Fifth Circuit for a rehearing and the reinstatement of the injunction against CISA. In its revised opinion, the Fifth Circuit acknowledged that CISA had likely violated the First Amendment by coercing or significantly encouraging social media platforms to moderate content during the 2020 presidential election.
Before reaching the appeals court, Louisiana District Judge Terry A. Doughty had already made a significant declaration in a July 4 ruling. He stated that federal authorities, from the Biden White House to agencies like the FBI and CDC, had likely orchestrated “the most massive attack against free speech in United States’ history”. Judge Doughty’s ruling found evidence that the Biden administration had collaborated with social media platforms to suppress speech on topics ranging from election integrity to COVID origins under the pretext of national security and public health concerns.
The Biden administration appealed this decision to the Fifth Circuit, ironically arguing that by being prevented from censoring speech through social media proxies, the government itself was being censored. However, the Fifth Circuit upheld the lower court’s finding that government pressure and collaboration with social media companies effectively turned these platforms into state actors, and their content moderation efforts infringed on the First Amendment.
It is likely that the Biden administration will appeal this modified ruling to the Supreme Court, as it did with the original Fifth Circuit decision. In anticipation of this, Missouri Attorney General Andrew Bailey expressed his commitment to defending First Amendment rights at the highest court.
Weingarten concluded that it is crucial for the Supreme Court to uphold the freeze on speech policing, as it is necessary for a free and fair election in 2024. The central argument being vindicated at both the district and appellate levels is that by using government influence to censor ideas it dislikes on social media platforms, the government violates individuals’ right to free speech.