by Mitch Kokai
Senior Political Analyst, John Locke Foundation
A federal appeals court ruled Friday that the Biden administration likely violated the First Amendment by pressuring social-media platforms to censor posts about Covid-19 and elections.
The Fifth Circuit U.S. Court of Appeals ruling says that the White House likely “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences.” The panel of three judges found that the administration “significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment.”
A lower court previously placed restrictions on the Biden administration’s communications with social-media platforms; those restrictions applied to a number of government agencies, including the Department of Health and Human Services, the State Department, Homeland Security, and the U.S. Census Bureau.
After temporarily blocking the order, the Fifth Circuit judges have now modified the order to apply only to the White House, the surgeon general, the Centers for Disease Control and Prevention, and the FBI.
The judges found that the agencies it has since exempted “were permissibly exercising government speech.”
“That distinction is important because the state-action doctrine is vitally important to our Nation’s operation — by distinguishing between the state and the People, it promotes ‘a robust sphere of individual liberty,’” the judges wrote.
While the Biden White House and CDC allegedly pressured Facebook and YouTube to adopt specific policies around Covid-19 and vaccination-related information, the judges noted the FBI regularly met with tech companies ahead of the 2020 elections. The agency’s activities were “not limited to purely foreign threats,” as the FBI flagged posts that originated inside the U.S. as well, including those that contained incorrect poll hours or mail-in voting procedures.
The court’s decision comes in response to a lawsuit filed by the attorneys general of Louisiana and Missouri last year.