Federal Appeals Court Rules Biden Administration Likely Violated First Amendment

In a landmark decision on Friday, the Fifth Circuit U.S. Court of Appeals found that the Biden administration likely violated the First Amendment by pressuring social media platforms to censor posts related to Covid-19 and elections. The ruling has significant implications for the intersection of government action and free speech in the era of social media.

Photo Gage Skidmore

The three-judge panel stated that the White House likely "coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences." The administration, the court found, had "significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment."

This ruling modifies a lower court’s order, which had already placed restrictions on the administration's communications with social media platforms. The lower court’s order applied to multiple government agencies, including the Department of Health and Human Services, the State Department, Homeland Security, and the U.S. Census Bureau. However, the Fifth Circuit ruling narrows the order to apply only to the White House, the surgeon general, the Centers for Disease Control and Prevention (CDC), and the FBI.

The judges deemed that the agencies they had exempted from the lower court's restrictions "were permissibly exercising government speech." They emphasized the importance of the state-action doctrine, noting, “That distinction is important because the state-action doctrine is vitally important to our Nation’s operation — by distinguishing between the state and the People, it promotes ‘a robust sphere of individual liberty.’”

The court's examination pointed out that while the Biden administration and CDC pressured Facebook and YouTube to adopt specific policies around Covid-19 and vaccination-related information, the FBI had regular meetings with tech companies ahead of the 2020 elections. Notably, the FBI’s actions were "not limited to purely foreign threats," as they also flagged posts originating within the United States. These included posts with incorrect information about poll hours and mail-in voting procedures.

The ruling comes as a response to a lawsuit filed last year by the attorneys general of Louisiana and Missouri. Missouri attorney general Andrew Bailey celebrated the decision, stating that it would prevent federal officials “from violating the First Amendment rights of millions of Americans.”

Broader Implications

The decision raises important questions about the extent to which the government can influence private companies in the moderation of speech on their platforms. As social media becomes an increasingly important arena for public discourse, the court’s ruling sets a legal precedent that could shape the parameters of free speech online for years to come.

The Biden administration has yet to issue a statement on the ruling. Legal experts suggest that an appeal to the Supreme Court is possible, which could further clarify the boundaries of government action and First Amendment rights in the digital age.