Fifth Circuit Court sides with Missouri Attorney General, blocks White House and FBI from censoring speech

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Missouri Attorney General Andrew Bailey announced that the United States Fifth Circuit Court of Appeals has upheld his free speech case, Missouri v. Biden, by enjoining the White House, Surgeon General, FBI, and CDC from continuing to violate the First Amendment rights of millions of Americans.

“We filed this landmark lawsuit against dozens of officials in the federal government to halt the biggest violation of the First Amendment in our nation’s history. The first brick was laid in the wall of separation between tech and state on July 4. Today’s ruling is yet another brick,” said Attorney General Bailey. “Missouri will continue to lead the way in the fight to defend our most fundamental freedoms.”

The Fifth Circuit wrote, “We find that the White House, acting in concert with the Surgeon General’s office, likely (1) coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences, and (2) significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment.”

The Court continued, “The officials made express threats and, at the very least, leaned into the inherent authority of the President’s office. The officials made inflammatory accusations, such as saying that the platforms were ‘poison[ing]’ the public, and ‘killing people.’ The platforms were told they needed to take greater responsibility and action. Then, they followed their statements with 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 Court continued, “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. We start with coercion. Similar to the White House, Surgeon General, and CDC officials, the FBI regularly met with the platforms, shared ‘strategic information,’ frequently alerted the social media companies to misinformation spreading on their platforms, and monitored their content moderation policies. But, the FBI went beyond that—they urged the platforms to take down content. Turning to the Second Circuit’s four-factor test, we find that those requests were coercive.”

Missouri v. Biden was filed by the attorneys general of Missouri and Louisiana on May 5, 2022. The Court granted their motion for discovery on July 12, 2022, clearing the way for Missouri and Louisiana to gather documents and depose witnesses from the Biden Administration.

Missouri and Louisiana deposed top-ranking officials in the federal government under oath, including Dr. Anthony Fauci, FBI Special Agent Elvis Chan, Eric Waldo of the Surgeon General’s Office, Carol Crawford of the CDC, Brian Scully of the Cybersecurity and Infrastructure Security Agency, and Daniel Kimmage of the State Department.

General Bailey and General Landry filed their motion for preliminary injunction on March 6, 2023, citing more than 1,400 facts showing that top officials in the federal government coerced and colluded with big tech social media companies to violate Americans’ right to free speech.

The Western District of Louisiana granted Missouri and Louisiana’s motion to block top officials in the federal government from continuing to violate the First Amendment rights of millions of Americans on July 4, 2023.

The Fifth Circuit Court of Appeals heard oral arguments on August 10, 2023, and issued its ruling today.

The ruling can be read here.

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