The Federal Bureau of Investigation is able to remove speech on the Internet that the federal government finds undesirable about half the time.
The Department of Justice (DOJ) conceded the fact in a September court filing as part of a free speech lawsuit.
DOJ Solicitor General Elizabeth Prelogar said in a September court filing the FBI successfully convinces social media platforms to remove online speech at a “50-percent rate.”
“And it is far-fetched to conclude, as respondents do, that some of the largest and wealthiest companies on the planet, represented by highly competent counsel, would be coerced by general answers to questions about potential legislative changes at press conferences or in cable-television interviews,” the DOJ argued in the filing.
“The platforms’ routine decisions not to remove content that the government had flagged further refutes any claim of coercion. Appl. 27. Respondents apparently view the FBI’s 50-percent rate as evidence of coercion because ‘any major-league slugger would envy’ a .500 batting average,” the filing adds.
Preloger was arguing in support of the Biden administration’s request for the Supreme Court to extend its stay on a federal injunction blocking the federal government from encouraging platforms to censor content online.
Margot Cleveland of The Federalist heralded the news.
WHOA! 5th Cir. grants PLAINTIFFS’ rehearing, meaning they Biden Administration might soon be losing bigger in its censorship efforts! pic.twitter.com/XZpQD5RmUo
— Margot Cleveland (@ProfMJCleveland) September 25, 2023
“WHOA! 5th Cir. grants PLAINTIFFS’ rehearing, meaning they Biden Administration might soon be losing bigger in its censorship efforts!” she wrote on X.
The Supreme Court extended the injunction’s stay to Sept. 27 on Friday after Justice Samuel Alito temporarily froze it. The Fifth Circuit of Appeals partially affirmed Sept. 8 a lower court’s sweeping injunction that the Biden administration violated the First Amendment by coercing social media platforms into censoring speech.
The Fifth Circuit agreed on Monday to the plaintiffs’ request to rehear the case and consider expanding its injunction. Plaintiffs argued the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) and State Department officials should be included in the injunction. They also argued for the injunction to prevent government officials from coordinating with private-sector partners including the Election Integrity Partnership and Virality Project.
The Biden administration had recently asked the Supreme Court to pause the Fifth Circuit’s scaled-back injunction in the free speech lawsuit Missouri v. Biden, which prevents the administration from coercing or encouraging social media companies to censor speech.
The Fifth Circuit’s ruling, while finding that the White House, Surgeon General, Centers for Disease Control and Prevention and the FBI violated the First Amendment, removed the Cybersecurity and Infrastructure Security Agency (CISA) and other government officials from the district court’s injunction, and narrowed the language of the injunction itself.
The administration’s brief also requested the Supreme Court weigh in on whether the Fifth Circuit erred in eliminating CISA from the injunction, if it decides to take the case.
Kevin Goldberg, First Amendment specialist for the Freedom Forum, noted the Supreme Court’s decision “is merely a first step in what could be a long process.”
In the near-term, he expects the Supreme Court will allow the injunction to stand and will accept the case for review on the merits this term.
“I suspect the Justices want to weigh in but ultimately won’t overturn the injunction, largely because many of the ‘swing’ votes on the Court are likely to agree that the Fifth Circuit met the general requirement that an injunction of this sort be narrowly tailored to prevent government overstepping while still allowing government officials to engage in arm’s length conversation to provide input on matters of public concern,” Goldberg said.
