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The Courts, Democrats, Biden, Free Speech, and Social Media

In Missouri v. Biden, the US Court of Appeals for the Fifth Circuit ruled that the the White House and several other federal government agencies violated the First Amendment by coercing social media firms such as Facebook and Twitter to take down material the government deemed to be "misinformation" or otherwise harmful.

The injunction itself is narrowly drawn in such a way as to allow both government officials and social media firms to speak freely,so long as there is no coercion or "significant encouragement" (relatively narrowly defined):

Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, 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. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social media companies’ decision-making processes.

In Missouri v. Biden, the Fifth Circuit concluded that the White House, the Surgeon General and the FBI coerced social media firms to take down material these agencies objected to:

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. 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.

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. As one official put it, "removing bad information" is "one of the easy, low-bar things you guys [can] do to make people like me"—that is, White House officials—"think you're taking action."

When asked by a reporter "does the White House have a--have a response to the judge basically saying that this is the most massive attack on free speech in the U.S. history," Jean-Pierre responded she was deferring to the DOJ, but also made clear "if you’re asking me if we agree or disagree, we certainly disagree with this decision."

USA Today included a statement from the White House in their coverage of the 5th Circuit's decision. "DOJ is reviewing the court’s decision and will evaluate its options in this case," the White House said. "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."

   

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