The Biden administration has again lost a First Amendment case, curtailing its efforts to address what it deems to be hate speech or misinformation.
As a wider debate rages over free speech and the limits of government power, the U.S. Court of Appeals for the 5th Circuit ruled Friday that the Biden White House and some government agencies went too far in trying to influence how social media companies regulate their platforms.
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The questions now are how the administration will react and whether it will appeal to the Supreme Court.
White House officials coerced social media companies about election information in 2020 and vaccine efficacy during the COVID-19 pandemic, with then-press secretary Jen Psaki bragging in July 2021 that “we’re flagging problematic posts for Facebook.”
But courts have ruled the effort goes too far. On July 4 of this year, Judge Terry A. Doughty issued a preliminary injunction blocking Biden officials from even contacting social media companies.
The latest ruling curtails that somewhat, though conservatives and many free speech advocates still view it as a win. It allows contact between the two parties and narrowly tailors restricted speech to that which would “coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech.”
The new ruling affects the White House, surgeon general’s office, Centers for Disease Control and Prevention, and the FBI while removing restrictions at the State Department, Department of Homeland Security, and Health and Human Services. None of the affected agencies responded to questions from the Washington Examiner.
The 5th Circuit in its ruling said the White House “coerced the platforms to make their moderation decisions” via intimidating messages and threats rather than mere encouragement or conversation.
“In an unprecedented, historic decision, the Fifth Circuit has recognized that the conduct of the White House, CDC, Surgeon General, and FBI violated Americans’ First Amendment rights,” said Jenin Younes, an attorney at the New Civil Liberties Alliance. “The government cannot coerce or encourage social media companies to censor views it dislikes. This decision vindicates the plaintiffs’ rights and protects the free speech of all Americans.”
In an interview with the Washington Examiner, Younes said the decision was a “significant loss” for President Joe Biden and predicted the administration is likely to appeal to the Supreme Court. Even if that happens, the high court as currently constituted has taken a dim view of executive branch power in recent terms.
Despite some social media chatter that the administration might try to ignore the ruling, Younes predicted officials would comply with it because they could be held personally accountable for violations once the court has gone on record with its views.
The White House maintains that social media platforms have a “critical responsibility” to take account of what effect content on their platforms has on the public.
“We are going to continue to promote responsible actions to protect public health, safety, and security when confronted by challenges like a deadly pandemic and foreign attacks on our election,” press secretary Karine Jean-Pierre said the day after the Doughty ruling.
Jean-Pierre is one of the officials named in the 5th Circuit’s ruling.
Judges said those efforts went too far, and some free speech advocates point to the slippery nature of who gets to decide what speech is allowed or harmful.
“Even if you’re sympathetic to the efforts of one presidential administration, imagine that same power in the hands of an administration you don’t support,” said Aaron Terr, director of public advocacy at the Foundation for Individual Rights and Expression. “In fact, the censorship alleged here happened under both the Biden and Trump administrations.”
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Terr acknowledged there’s a careful balance between allowing the government to communicate and do its job while protecting the rights of private citizens and businesses.
He has called for legislation that would force government speech to be more transparent and for people to be able to see what it is saying in its interactions with private businesses.
