President Joe Biden and key officials in his administration are scrambling to deny the obvious truth that they pressured Big Tech to censor Americans.
They have the gall to hide behind Big Tech companies and blame them for the censorship, as though the Biden administration didn’t pressure them into clamping down on free speech in the first place.
Biden and his cronies also argue that because some Americans who had their social media accounts permanently suspended now have access to the platforms again, they no longer face any threat of future censorship.
A three-judge panel of the U.S. Court of Appeals for the 5th Circuit rejected these fig-leaf defenses in a ruling Friday, blocking the government from using Big Tech to silence Americans. The judges upheld a temporary injunction that U.S. District Court Judge Terry Doughty issued July 4, barring the president and key officials in his administration from engaging with social media companies for the purpose of pressuring them to stifle Americans’ free speech.
The plaintiffs in the case include Missouri and Louisiana, represented by Attorneys General Andrew Bailey and Liz Murrill, both Republicans; doctors who spoke out against COVID-19 mandates, such as Martin Kulldorff, Jayanta Bhattacharya, and Aaron Kheriaty; Gateway Pundit founder Jim Hoft; and Jill Hines, an anti-lockdown activist and co-director of Health Freedom Louisiana.
They allege that the Biden administration “suppressed conservative-leaning free speech” on the Hunter Biden laptop story ahead of the 2020 presidential election; on COVID-19 issues, including its origin, masks, lockdowns, and vaccines; on election integrity in the 2020 presidential election; on the security of voting by mail; on the economy; and on Joe Biden himself.
The 5th Circuit panel ruled that the plaintiffs are likely to succeed in ultimately proving their case and that ongoing federal government pressure on social media companies represents a threat of harm against them. The judges upheld a temporary injunction forbidding the officials in question from “meeting with social media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms,” among other things.
While the 5th Circuit upheld the injunction, it did remove three federal agencies from it—the National Institute of Allergy and Infectious Diseases (the agency that Dr. Anthony Fauci formerly directed), the Cybersecurity and Infrastructure Security Agency, and the State Department.
The injunction still names various federal agencies—including the Department of Health and Human Services, the Centers for Disease Control and Prevention, the FBI, and the Justice Department. It also names officials, including HHS Secretary Xavier Becerra, Surgeon General Vivek Murthy, White House press secretary Karine Jean-Pierre, and, of course, Biden.
The 5th Circuit noted that “the plaintiffs allege that federal officials ran afoul of the First Amendment by coercing and significantly pressuring ‘social-media platforms to censor disfavored [speech],’ including by ‘threats of adverse government action’ like antitrust enforcement and legal reforms. We agree.”
The ruling dissects many arguments made by Biden cronies in a futile attempt to prevent the injunction.
The Biden officials argued that the Big Tech crackdown on the plaintiffs doesn’t trace back directly to the officials’ pressure, that the censorship “was the result of ‘independent decisions of social-media companies.’” Yet the 5th Circuit notes that the key legal question is whether the censorship “can also be traced to government-coerced enforcement” of Big Tech policies, and it rules in the affirmative.
In a particularly ironic passage, the ruling notes that Biden cronies “contend that future harm is unlikely because ‘all three plaintiffs who suggested that their social-media accounts had been permanently suspended in the past now appear to have active accounts.’”
In other words, the government claimed that since these social media users had their accounts restored, no censorship can happen to them going forward. This argument is exactly backward, the court explained.
“If the individual plaintiffs did not currently have active social-media accounts, then there would be no risk of future government-coerced censorship of their speech on those accounts,” the 5th Circuit ruled. “But since the individual plaintiffs continue to be active speakers on social media, they continue to face the very real and imminent threat of government-coerced social-media censorship.”
The 5th Circuit ruling also painstakingly explains how the Biden officials violated Americans’ free speech under the First Amendment. It lays out the various acts that the president, the surgeon general, and then-White House press secretary Jen Psaki took to pressure Big Tech to censor disfavored views—and how the companies responded.
The ruling recounts the July 2021 press conference in which Psaki said the White House “expect[s] more” from the platforms, demanding that Twitter, Facebook, and others “consistently take action against misinformation.”
Murthy, the nation’s surgeon general, then branded the platforms “one of the biggest obstacles” to controlling the COVID-19 pandemic because they had “enabled misinformation to poison” public discourse. He labeled Big Tech misinformation an “urgent public health threat” that was “literally costing … lives.” The next day, Biden himself said that social media platforms were “killing people” by supposedly failing to act.
The ruling notes that, a few days later, a Facebook employee told the surgeon general that “[w]e hear your call for us to do more” and notified him that the company was working to “adjust policies on what we are removing with respect to misinformation.”
The 5th Circuit applied a four-part legal test to distinguish between government coercion and permissible persuasion. It ruled that the government’s actions consistently amounted to coercion.
“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,” the court ruled. “In doing so,
the officials were persistent and angry. When the platforms did not comply, officials followed up by asking why posts were ‘still up,’ stating (1) ‘how does something like [this] happen,’ (2) ‘what good is’ flagging if it did not result in content moderation, (3) ‘I don’t know why you guys can’t figure this out,’ and (4) ‘you are hiding the ball,’ while demanding ‘assurances’ that posts were being taken down.”
The court also ruled that Biden officials “threatened—both expressly and implicitly—to retaliate against inaction.”
The discovery process in Missouri v. Biden turned up reams of evidence that the federal government did indeed—and repeatedly—pressure Big Tech to censor the free speech of Americans, even when the social media companies knew the suppressed information was true. A Facebook employee told the White House in March 2021 that the company suppressed “often-true content” that did not violate Facebook’s policies because it might make Americans more hesitant about the COVID-19 vaccine.
Although Big Tech companies do have the legal right to determine what content is permissible on their platforms, the federal government doesn’t have the right to skirt the protections of the First Amendment by outsourcing its censorship to third parties. Biden doesn’t have the right to tell Facebook, “You must remove this post or I’ll bring the full might of my office down on you. Why isn’t it down yet?”
The Biden administration has been caught red-handed, and officials are squirming to find a way out of the inevitable ruling that they violated Americans’ free speech. The 5th Circuit’s injunction is temporary, but it provides immediate relief for those the administration deems heretics on issues such as COVID-19.
This case is far from over, but multiple courts have rejected the ridiculous denials of Biden cronies. What kind of convoluted defense will they conjure next?
Tyler O’Neil is managing editor of The Daily Signal and the author of “Making Hate Pay: The Corruption of the Southern Poverty Law Center.” This first appeared in the Daily Signal.