In its ruling on whether the Biden administration interfered with freedom of expression, the 5th Circuit included “inflammatory accusations, such as saying that the platforms were ‘poisoning’ the public, and ‘killing people,” accompanied by “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,’” the judges wrote. “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. … We are left only with the conclusion that the officials’ statements were coercive.”

Referring to the FBI, the judges wrote, “We find that the FBI, too, likely (1) coerced the platforms into moderating content and (2) encouraged them to do so by effecting changes to their moderation policies, both in violation of the First Amendment.”

“Given the record before us, we cannot say that the FBI’s messages were plainly threatening in tone or manner,” the judges wrote. “We do find the FBI’s requests came with the backing of clear authority over the platforms.”

Turning to the CDC, the judges wrote, “We find that, although not plainly coercive, the CDC officials likely significantly encouraged the platforms’ moderation decisions, meaning they violated the First Amendment.”

The 5th Circuit vacated all but one of the lower court’s specific prohibitions, but affirmed prohibition six, which barred the officials and agencies in question from “threatening, pressuring or coercing social-media companies in any manner to remove, delete, suppress or reduce posted content of postings containing protected free speech.”

However, that prohibition was modified to state the following: “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.

“Social media platforms’ content-moderation decisions must be theirs and theirs alone.”

“The proper injunctive terms will be revisited when the case is disposed on final judgment and there is a permanent injunction,” McCollough told The Defender.

Jaffe said that one of the most positive outcomes of the 5th Circuit’s ruling is that it “agreed with the district court that the Biden administration likely violated the First Amendment rights of the state officials and private parties” involved in the lawsuit, describing this as “a very good finding.”

The court also denied the government’s motion for a stay of the original injunction pending appeal but granted their request to extend the administrative stay issued July 14 for 10 days, “pending an application to the Supreme Court of the United States.”

The DOJ has 10 days to ask the Supreme Court to intervene, Bloomberg reported, adding that the DOJ “previously indicated it’s prepared to take the case to the high court.”

In a statement, the White House defended its actions, saying “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 White House stated.

In his statement, Landry said, “The Biden administration now has ten days to seek Supreme Court review … But we are determined to bring this to trial so that the victims are vindicated and we can prevent this gross abuse of power from ever happening again, especially in a time of crisis, when information is most important.”

Jaffe wrote the Supreme Court Justice assigned to the 5th Circuit is Samuel Alito, who “might issue a stay, or the full court could,” adding: “It is possible that the three uber-conservative judges might agree with me that a bright-line prohibition, at least in the public health and Covid context, is justified, and maybe more justices.”

According to Bloomberg, “The ban has already started to disrupt government business,” such as canceled calls between the White House and social media representatives,” including in relation to efforts to “crack down” on “misinformation” on social media.

“The Supreme Court has been increasingly pulled into the debates over regulating online speech,” Bloomberg reported. “The high court this upcoming term will likely hear cases challenging laws in Texas and Florida that regulate what kind of speech social media companies can remove.”

But according to McCollough, “Bloomberg’s reportage constitutes malinformation.”

“These government actors did not ‘ask’ social media companies to ‘crack down’ on ‘misinformation’ about Covid-19,” he said. “They demanded that the platforms censor information on a wide variety of topics these officials did not like and threatened severe consequences if the platforms did not comply.”

“The information that was suppressed was, as we now know so well, largely true, so it was not, in fact, ‘misinformation,’” McCollough added. “They forced themselves into, and often directly controlled, the platforms’ ‘moderation’ policies, decisions and actions.”

“Many people were censored as a result,” he said. “The public was not allowed to have open discussion on several different important civil topics and controversies of the day.”

McCollough predicted the Supreme Court will address regulation of online speech in the upcoming term,” and “will find the public has a right to free expression and the government cannot directly or indirectly suppress online protected speech.”

Jaffe said, “It rubs me the wrong way that the federal government gets to tell platforms that they don’t like specific posts about matters of public health during a time when the government’s narrative has proven to be wrong and dangerous.”

Younes told The Defender, “In short, this case illustrates why the First Amendment is crucial to freedom in this country. The government cannot be in the business of deciding what is true and what is false, and who deserves to be heard and who is silenced.”

Missouri et al. v. Biden et al. is one of several lawsuits pending in federal courts alleging the White House and members of the Biden administration pressured social media platforms to suppress speech that was not aligned with establishment policies concerning Covid-19, vaccines and other policy-related issues.

These include the Texas and Florida cases, the Kennedy et al. v. Biden et al. censorship lawsuit, which was consolidated with Missouri et al. v. Biden et al. in July, and Kennedy v. Google et al, alleging YouTube censored Covid-19 vaccine-related content posted by Kennedy, and in which CHD is co-plaintiff.

Holland and Younes both told The Defender that it is still unknown whether the DOJ will appeal or if the case will return to the trial court.

“Regardless, when this case does continue before Judge Doughty for further discovery, CHD’s case will also have access to all of that information, providing evidence of the vast enterprise that has been created in recent years to shape and control what Americans can read, in direct violation of the First Amendment,” Holland said.

McCollough said the 5th Circuit ruling is a “devastating loss” for actors such as the United Nations, World Health Organization, Council on Foreign Relations, G20, World Economic Forum and World Bank, as well as “financial giants like Vanguard, BlackRock and State Street,” that the Bill of Rights prohibits the neo-feudalism they are trying to establish.”

• The Defender report