Appeals court preserves ruling striking down Biden censorship

September 11, 2023
Matthew Boose

A federal appeals court found that Joe Biden violated the First Amendment with his authoritarian efforts to control so-called "disinformation."

The Fifth Circuit upheld a July ruling from Louisiana Judge Terry Doughty, who dealt a stinging rebuke of Biden's "Orwellian" censorship and blocked Biden officials from contacting social media companies.

The appeals court agreed with most of Doughty's ruling, while also finding that it was "both vague and broader than necessary."

In order to circumvent the Constitution, the administration colluded with nominally private actors, such as Twitter and Facebook, urging them to remove posts the government called harmful "disinformation."

Biden shut down

The posts included messages challenging what Democrats called "the science" on controversial subjects like masking and vaccines, as well as posts about election fraud, the Hunter Biden laptop, and more.

The administration has maintained that the platforms acted independently - but the Fifth Circuit found that the government violated the First Amendment by making "inflammatory accusations" and threats of retaliation.

Biden publicly warned that social media platforms were "killing people" by not doing enough to limit speech. The day after Biden made that threat, Facebook asked the White House what was necessary to "get back to a good place," the court's opinion notes.

"After all, as the executive of the Nation, the President wields awesome power," the court wrote.

In private, officials were coercive and demanding. A White House official wrote in one e-mail, “last time we did this dance, it ended in an insurrection.”

The Big Tech platforms readily complied with the government's requests, which included demands to change policies, demote "misinformation" and amplify government messaging on vaccines.

In some instances, platforms like Facebook removed content despite acknowledging it was not in violation of any policies, the court's opinion noted.

"In one email, a White House official told a platform to take a post down 'ASAP,' and instructed it to 'keep an eye out for tweets that fall in this same [] genre' so that they could be removed, too," the opinion states.

White House reacts

The Fifth Circuit limited the scope of its injunction to the White House, the Surgeon General, the FBI, and the CDC, while finding that other agencies did not engage in unlawful coercion.

These include the State Department and Cybersecurity and Infrastructure Security Agency (CISA), the latter of which played a controversial role in the 2020 election by flagging so-called disinformation for social media platforms.

Of course, the administration is not pleased with the ruling.

"Our consistent view remains that social media platforms have a critical responsibility to take account of the effects their platforms are having on the American people but make independent choices about the information they present," the White House said.

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