Fifth Circuit Affirms Federal Government Cannot Censor Free Speech Through Collusion With Social Media

The Fifth Circuit, on September 8, 2023, affirmed that the Federal government shall not pressure or collude with social media companies to censor free speech.  Missouri v Biden 5th Cir Opinion.

The Court ruled, in part:

We find that the White House, acting in concert with the Surgeon General’s office, likely (1) coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences, and (2) significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment.

Here, the officials made express threats and, at the very least, leaned into the inherent authority of the President’s office. The officials made inflammatory accusations, such as saying that the platforms were “poison[ing]” the public, and “killing people.” The platforms were told they needed to take greater responsibility and action. Then, they followed their statements with threats of “fundamental reforms” like regulatory changes and increased enforcement actions that would ensure the platforms were “held accountable.” But, beyond express threats, there was always an “unspoken ‘or else.’” Warren, 66 F.4th at 1212. After all, as the executive of the Nation, the President wields awesome power. The officials were not shy to allude to that understanding native to every American—when the platforms faltered, the officials warned them that they were “[i]nternally . . . considering our options on what to do,” their “concern[s] [were] shared at the highest (and I mean highest) levels of the [White House],” and the “President has long been concerned about the power of large social media platforms.” Unlike the letter in Warren, the language deployed in the officials’ campaign reveals clear “plan[s] to punish” the platforms if they did not surrender. Warren, 66 F.4th at 1209. Compare id., with Backpage.com, 807 F.3d at 237. Consequently, the four-factor test weighs heavily in favor of finding the officials’ messages were coercive, not persuasive.

The Court essentially held that the President and other high ranking officials were acting as mafiosos.  “Nice platform you got there.  Shame if something happened to it.”

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