Appeals Court: Biden Admin Violated Constitution by Demanding Censorship of COVID, Election Questions

A federal appeals court has ruled the Biden administration violated the First Amendment rights of social media users posting questions about COVID-19, election fraud, and other subjects when it compelled tech companies who owned the platforms to remove or censor the posts. 

The 5th U.S. Circuit Court of Appeals in New Orleans late Friday said the White House, the Surgeon General, the Centers for Disease Control, and the FBI cannot “coerce” social media platforms to take down posts the government doesn’t like.

The court ruled that “numerous federal officials coerced social-media platforms into censoring certain social media content, in violation of the First Amendment.”

However, the 74-page opinion also threw out broader language from an order that a Louisiana-based federal judge issued on July 4 that effectively blocked multiple government agencies from contacting platforms such as Facebook and X (formerly Twitter) to urge that content be taken down.

As CBN News reported, U.S. District Judge Terry Doughty cited “substantial evidence” of a far-reaching censorship campaign. He wrote that “evidence produced thus far depicts an almost dystopian scenario. During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’”

In its Friday ruling, the appellate court trimmed down Doughty’s ruling, saying mere encouragement to take down content doesn’t always cross a constitutional line.

The 5th Circuit’s ruling also removed some agencies from the order, including the National Institute of Allergy and Infectious Diseases, the Cybersecurity and Infrastructure Agency, and the State Department.

However, the appeals court also upheld and particularly noted the district court’s evaluation of the administration’s reported campaign to pressure social media companies to block certain content. 

“So, we do not take our decision today lightly. But, the Supreme Court has rarely been faced with a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life. Therefore, the district court was correct in its assessment—’unrelenting pressure’ from certain government officials likely ‘had the intended result of suppressing millions of protected free speech postings by American citizens.’ We see no error or abuse of discretion in that finding,” the judges wrote. 

The administration has 10 days to seek a Supreme Court review.

“DOJ is reviewing the court’s decision and will evaluate its options in this case,” the White House said in a statement. “This administration has promoted responsible actions to protect public health, safety, and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections. 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 appeals court’s ruling came in a lawsuit filed in northeast Louisiana that accused administration officials of pressuring platforms to take down content under the threat of possible antitrust actions or changes to federal law shielding them from lawsuits over their users’ posts.

COVID-19 vaccines, the FBI’s handling of a laptop that belonged to President Joe Biden’s son, Hunter, and election fraud allegations were among the topics spotlighted in the lawsuit, which accused the administration of using threats of regulatory action in order to squelch conservative points of view.

“We find that the White House, acting in concert with the Surgeon General’s office, likely coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences, and significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment,” the three-judge panel wrote. 

“On multiple occasions, the officials coerced the platforms into direct action via urgent, uncompromising demands to
moderate content. Privately, the officials were not shy in their requests—they asked the platforms to remove posts ‘ASAP’ and accounts ‘immediately,’ and to ‘slow down’ or ‘demote’ content. In doing so, the officials were persistent and angry,” the ruling said. 

“And, more importantly, the officials threatened—both expressly and implicitly—to retaliate against inaction. Officials threw out the prospect of legal reforms and enforcement actions while subtly insinuating it would be in the platforms’ best interests to comply,” the ruling continued. 

Louisiana Attorney General Jeff Landry called Friday’s ruling “a major win against censorship” in a post on X.  

Fifth Circuit just unanimously affirmed Judge Doughty’s injunction against White House, CDC, FBI and others — giving Americans and #FreedomOfSpeech a major win against censorship, totalitarianism, and Biden. #FirstAmendment

— AG Jeff Landry (@AGJeffLandry) September 8, 2023

The case was heard by judges Jennifer Walker Elrod and Edith Brown Clement, nominated to the court by former President George W. Bush; and Don Willett, nominated by former President Donald Trump. Doughty was nominated to the federal bench by Trump.

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