Last week, the 5th Circuit Court of Appeals determined that certain officials in the Biden administration had violated the First Amendment by exerting pressure on social media companies to moderate or remove content they considered problematic.
But the three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals narrowed much of an injunction issued by a Louisiana judge that restricted Democratic President Joe Biden’s administration from communicating with social media companies.
The court said that the White House, Surgeon General, Centers for Disease Control and Prevention (CDC), and the FBI “likely coerced or significantly encouraged social media platforms to moderate content” in violation of the First Amendment.
“It is true that the officials have an interest in engaging with social media companies, including on issues such as misinformation and election interference,” the three-judge panel said in a 74-page ruling on Sept. 8.
“But the government is not permitted to advance these interests to the extent that it engages in viewpoint suppression,” they added.
The court found that the officials made “express threats” and “inflammatory accusations” by saying that the platforms were “poisoning 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,’” it added.
The court also stated that these officials had actively encouraged social media platforms to engage in content moderation by “exercising active, meaningful control over those decisions,” especially in relation to the platforms’ moderation policies.
According to the ruling, 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,” it added.
The judges emphasized that the government cannot supervise a platform’s content moderation decisions and cannot impose “legal, regulatory, or economic consequences” if they refuse to comply with a given request.
“Social media platforms’ content-moderation decisions must be theirs and theirs alone,” the court asserted.
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