A major First Amendment case on government collusion with Big Tech is scheduled to go before a federal appeals court for oral arguments on Thursday, per the court’s calendar.
The Fifth Circuit will hear the Biden administration’s appeal of a July 4 injunction barring officials across the federal government — including the White House, the Department of Health and Human Services and the FBI — from communicating with social media platforms for the purposes of censoring protected speech. Western District of Louisiana Judge Terry Doughty, who issued the injunction, likened the evidence of government-directed censorship uncovered through the Missouri v. Biden lawsuit challenging the government’s efforts to police misinformation online to an “Orwellian ‘Ministry of Truth.’”
“Although this case is still relatively young, and at this stage the Court is only examining it in terms of Plaintiffs’ likelihood of success on the merits, the evidence produced thus far depicts an almost dystopian scenario,” Doughty wrote. “During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’”
Doughty’s injunction was temporarily paused by the Fifth Circuit on July 14 pending “further orders” of the court after the Biden administration’s appeal on July 5. On Thursday, both the Administration and the plaintiffs will have a chance to make their case.
Louisiana Attorney General Jeff Landry and Missouri Attorney General Andrew Bailey filed the initial lawsuit in May 2022. Three doctors and an activist censored for their views on COVID-19 treatments and policies, who are represented by The New Civil Liberties Alliance, later joined the lawsuit as plaintiffs.
In a brief filed Monday, these plaintiffs told the court the injunction is needed to curtail a federal censorship campaign that “fundamentally distorted online discourse.”
“This injunction put a stop to an egregious campaign, lasting over five years, during which senior federal officials—using coercion, threats, deception, pressure, and collusion—insinuated themselves into the content-moderation decisions of social-media platforms to silence disfavored viewpoints,” the brief states. “This campaign of federal censorship was so effective that it fundamentally distorted online discourse in America on great social and political questions, rendering entire viewpoints virtually unspeakable on social media.”
Activities uncovered by the lawsuit included CISA “switchboards” that allowed state and local election officials to flag misinformation for removal by social media platforms, regular meetings between federal agencies and major social media platforms to discuss censorship, the FBI planting false information intended to induce platforms to censor the Hunter Biden laptop story and Centers for Disease Control and Prevention (CDC) officials flagging specific social media posts for removal.
House Judiciary Committee Republicans filed an amicus brief Monday asking the court to uphold the injunction, citing examples found in subpoenaed internal Facebook documents of employees noting they were “under pressure” from the Biden administration to censor speech such as the COVID lab leak theory and “vaccine discouraging content.”
A group of state attorneys general, led by Democratic New York Attorney General Letitia James, backed the Biden administration last week, citing their interest in protecting residents from the “spread of harmful content” and asking the Fifth Circuit to reject the injunction.
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