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September 11, 2023

The First Amendment Prevails Against Biden

The Fifth Circuit Court ruled that the administration cannot coerce social media companies regarding free speech.

Big Tech giants have built a nearly unassailable legal record, winning case after case against plaintiffs alleging violation of free speech for various methods of suppression. As private companies protected by Section 230 of the Communications Decency Act of 1996, there’s little these publishers can’t do to squelch free speech on what they claim are platforms for speech.

So far, there’s really only one way to beat them: prove that the government caused the censorship, thereby violating the First Amendment.

The Biden administration and other executive branch entities likely did just that, ruled the U.S. Court of Appeals for the Fifth Circuit in New Orleans. On Friday, a three-judge panel (composed of one nominee of Donald Trump and two nominees of George W. Bush) ruled the administration can’t “coerce” Big Tech to remove or suppress content, in this case regarding the coronavirus pandemic and elections.

The White House “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences,” the judges said. The administration also “significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment.”

In July 2021, Joe Biden accused Facebook of “killing people” by allowing users to post doubts and questions about vaccines. The Fifth Circuit found that such pronouncements combined with other communications from the White House to Facebook and other companies “were on-the-whole intimidating.”

The same went for FBI and DHS communication collusion with social media giants about election “disinformation.” The real election disinformation, of course, allowed one of the most corrupt men in politics to win the White House.

The bad news is that the Fifth Circuit panel rejected nine of the 10 specific prohibitions in the July ruling by U.S. District Court Judge Terry Doughty. The Fifth Circuit also limited the restrictions to only the White House, the CDC, the FBI, and the surgeon general, rather than also DHS, HHS, the State Department, the Census Bureau, and the National Institute of Allergy and Infectious Diseases (Anthony Fauci’s outfit). Doughty’s injunction against all those agencies, as well as restricting contact with social media companies to make recommendations or give information regarding content, was “overbroad,” said the Fifth Circuit, because it prohibited even “legal conduct.”

The Fifth Circuit modified Doughty’s tenth provision, limiting it to banning efforts to “coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech.”

The ruling is still a significant win for free speech, albeit not as big a victory as we’d like to see. “The first brick was laid in the wall of separation between tech and state on July 4,” said Missouri Attorney General Andrew Bailey, one of the plaintiffs. Friday’s ruling by the Fifth Circuit “is yet another brick.”

Assuming the case is appealed, here’s hoping the Supreme Court finishes that wall. The Founding Fathers, architects of the First Amendment and defenders of the very idea of free speech, would be appalled to see the lengths to which the censors now go to silence political debate in what should be a free country. That the executive branch has been a part of such censorship is worthy of a place in the list of grievances in the Declaration of Independence.

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