A federal appeals court expanded its injunction blocking the Biden administration from coercing or significantly encouraging social media companies to censor speech to include the Cybersecurity and Infrastructure Security Agency (CISA).
The Fifth Circuit withdrew its prior decision, which excluded CISA, and issued a new ruling Tuesday finding that the agency likely also violated the First Amendment, along with those previously included like the White House, the Surgeon General, the Centers for Disease Control and Prevention (CDC) and the FBI. Plaintiffs in the case have argued that CISA was a key part of government censorship efforts.
“Like the CDC for COVID-related claims, CISA told the platforms whether certain election related claims were true or false,” the judges wrote. “CISA’s actions apparently led to moderation policies being altered and content being removed or demoted by the recipient platforms.”
CISA facilitated “switchboards” during the 2020 election that allowed state and local election officials to flag content as misinformation for removal by social media platforms.
The Fifth Circuit changed its assessment of the nature of CISA's conduct, leading it to conclude that the agency did more than share information; rather, its actions led to moderation policies being altered and content removed/demoted. 1/ https://t.co/gIDacYm7Sv
— Jenin Younes (former handle @leftylockdowns1) (@JeninYounesEsq) October 3, 2023
Jenin Younes, lead counsel representing the four private plaintiffs on the case for the New Civil Liberties Alliance, told the Daily Caller News Foundation the court “revised its assessment of CISA’s conduct, finding this time that it went beyond ‘mere information sharing.’” She said the government will “almost certainly” ask the Supreme Court for another stay on the Fifth Circuit’s ruling.
“While we’re pleased that the Fifth Circuit recognized its initial factual analysis was flawed, we believe that the legal analysis is still not correct,” Younes said. “The Fifth Circuit’s requirement for a finding of state action—that the government ‘coerced’ or ‘significantly encouraged’ the companies to censor disfavored viewpoints—excludes entwinement and joint participation, which should also be bases for finding that the government’s conduct was unconstitutional under the First Amendment.”
After the Biden administration asked for a stay on the appeals court’s previous ruling, the Supreme Court issued a temporary pause on the ruling until Sept. 27 and then let it expire. The Fifth Circuit issued an order Sept. 26 requesting a response to the petition to rehear the case to expand the injunction.
The White House and CISA did not immediately respond to a request for comment.
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