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Ben Weingarten

Federalist Senior Contributor; Claremont Institute Fellow

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Appellate court gets it right in Missouri v. Biden free speech case

Oct 10, 2023


In September, a federal appellate court ruled that federal officials had collaborated with tech platforms to restrict speech on divisive subjects such as the COVID-19 lab leak theory. The Biden administration argued that officials acted legally and tried to reduce online misinformation by notifying social media companies about policy violations. This ruling might soon be brought before the Supreme Court.

Straight Arrow News contributor Ben Weingarten explains why it’s imperative for the Supreme Court to uphold the freeze on speech policing and to preserve First Amendment rights.

The opinion came in the landmark Missouri v. Biden case. In that case, Louisiana District Judge Terry A. Doughty had declared in a stirring Independence Day ruling that federal authorities from the Biden White House to the FBI and CDC had likely engaged in “the most massive attack against free speech in United States history.”

They did so, the judge found, by controlling and colluding with social media companies to silence Wrongthinkers on matters from election integrity to COVID origins, as always, under the guise of keeping us safe, combating national security- or public health-threatening mis-, dis- and mal-information.

The district court disarmed the speech police, ordering a wide-ranging preliminary injunction prohibiting the Feds from coercing and coordinating with platforms to suppress ever-growing categories of disfavored speech during the case. So the Feds almost immediately appealed the decision to the Fifth Circuit to no avail. The appellate court upheld the crux of the lower court’s ruling.

In a bombshell ruling, the U.S. 5th Circuit Court of Appeals has shut down the “nerve center” of federal government-led speech policing, correcting a critical error in its prior jurisprudence and striking a major blow for the First Amendment and against Deep State election interference.


The court’s opinion comes in the landmark free speech case in the digital era, Missouri v. Biden. Before the litigation landed in appellate court, Louisiana District Judge Terry A. Doughty declared in a fitting Independence Day ruling that federal authorities from the Biden White House to the FBI and CDC had likely engaged in “the most massive attack against free speech in United States’ history.”


They did so, Judge Doughty found, by cajoling and colluding with social media companies to silence Wrongthinking Americans on matters from election integrity to the origins of COVID under the guise of combatting national security- or public health-threatening “mis, dis, and mal-information.”


The District Court therefore disarmed the speech police by ordering a wide-ranging preliminary injunction, prohibiting federal authorities from coercing and coordinating with platforms to suppress ever-growing categories of disfavored speech during the pendency of the case. 


This incensed the feds, who proceeded to appeal the decision to the 5th Circuit, ironically arguing that by being barred from censoring disfavored speech by social media proxy, the government itself was being censored. 


The 5th Circuit wasn’t buying that argument. It upheld the crux of the lower court’s ruling, concurring that the administrative state’s pressuring of and partnering with social media companies to squelch Americans’ speech on expressly political and subjective matters effectively rendered the platforms state actors, and their “content moderation” efforts an assault on the First Amendment.


So the 5th Circuit upheld a modified form of the injunction, and imposed it on the federal authorities fingered by the plaintiffs – with one glaring omission.


DHS sub-agency CISA, the Cybersecurity and Infrastructure Security Agency, would not be subject to the injunction.


This arguably undermined the integrity of the entire opinion.


CISA, as the plaintiffs – including among them the states of Missouri and Louisiana, eminent doctors who had dissented from COVIDian orthodoxy, and conservative media and activists – had demonstrated conclusively, was the linchpin of the fed-led censorship regime.


The otherwise little-known agency, tasked with defending physical and digital infrastructure, had taken as its highest mission defending “our cognitive infrastructure,” in the words of current Director Jen Easterly.


This is a euphemism for mind control – for ensuring that only government-approved narratives proliferate in the digital public square, to cement regime power. 


Wrongthink, classified by the security state as “mis-, dis-, and mal-information,” about or in any way related to infrastructure that CISA exists to defend, would be treated as a threat to that infrastructure, and therefore as ripe to be neutralized through state-driven censorship.


So, beginning with the 2020 election and continuing thereafter, the likes of CISA began treating offending Tweets and Facebook posts about everything from Hunter Biden’s laptop, to mass mail-in balloting, and oddities in election administration and outcomes as akin to mini-digital terrorist attacks on election infrastructure – if not “our democracy” itself. 


It used that national security pretext – one built on a moral panic stoked by our ruling regime over Russian interference in the 2016 election, and associated Trump-Russia collusion that itself can be seen as one gigantic information operation – to orchestrate social media censorship regarding protected political speech at mass scale.


As I detailed in testimony before the House Homeland Security Subcommittee on Oversight, Investigations, and Accountability this past May:


CISA has served as a censorship conductor, driving regular meetings between security agencies and social media companies aimed at encouraging the platforms to combat purported mis- and dis-information – that is, to censor speech disfavored by the government that regulates them. And they have.


CISA has served as a censorship “switchboard,” collecting purported misinformation from government and non-government actors in the form of tweets, YouTube videos, and even private Facebook messages, and relaying the flagged content to the platforms to squelch it.


And CISA has served as an architect of the broader public-private censorship regime, helping originate, consult, network, and partner with often government-linked third parties to themselves serve as First Amendment-circumventing, mass-surveillance and mass-censorship enterprises.


“These systematic speech-stifling efforts, often targeting core political speech, and intensifying during elections,” I concluded, “seem tantamount to a conspiracy to violate the First Amendment, and running domestic election interference.”


In short, that social media companies flagged posts, throttled narratives, and nuked accounts en masse – specifically around elections, interfering in those elections – as the Louisiana District Court had found, was attributable to fed-led efforts coordinated and driven in large part by CISA.


So, for the Appeals Court not to subject CISA to its injunction was untenable. It was akin to prosecuting a mob family but letting the boss skate and continue running his “waste management” business.


The plaintiffs in Missouri v. Biden cried foul, petitioning the 5th Circuit for a rehearing and a reinstatement of the injunction on CISA.


Now the court has responded by fixing the latter fatal flaw.


In issuing its revised opinion, the 5th Circuit noted that CISA had in fact likely violated the First Amendment in “coerc[ing] or significantly encourag[ing] social-media platforms to moderate content” beginning during the 2020 presidential election.


Therefore, the panel ruled that like the censorious Biden White House, CDC, and FBI, CISA too would be subject to a preliminary injunction prohibiting it from engaging in any action that would cause social media companies to suppress “protected free speech.”


House Judiciary Committee Chairman Jim Jordan (R-Oh.) told me in a written statement that the opinion was a “Big win for the First Amendment.”


His committee, like the House Homeland subcommittee before which I testified has engaged in oversight efforts pertaining to CISA that have helped generate legislation that would in effect make the court’s preliminary injunction permanent.


But given the pro-censorship posture of the Biden administration, not to mention the composition of the Senate, odds are long that any such bills will become law.


In lieu of law, the courts are the last and best line of defense for our speech – and in particular the core protected speech that is political speech, the central target of our ruling regime.


As journalist Molly Ball put it in her “The Secret History of the Shadow Campaign That Saved the 2020 Election,” to “fortify” that contest, “a well-funded cabal of powerful people” endeavored to “control the flow of information.”


The evidence shows that the “cabal” included the Deep State itself.


Having appealed the 5th Circuit’s original ruling to the Supreme Court, all indications are that the feds will appeal the modified ruling to that venue as well. 


Anticipating that effort, Missouri Attorney General Andrew Bailey tweeted in the wake of the revised ruling that “We look forward to defending your First Amendment rights at the nation’s highest court.”


If so, the case will arrive at the highest court in the land with the plaintiffs’ central argument having been vindicated now at the district and appellate levels – that argument being that by leaning on social media platforms with the threat of a government gun to censor ideas the government doesn’t like, the government violated our right to free speech.


Should the Surpeme Court rule, it is imperative that it secure these rights and uphold the freeze on speech policing. 


A free and fair election in 2024 demands it.

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