We have been waiting for almost a month for the decision from the 5th Circuit Court of Appeals in this groundbreaking government censorship case. Its implications touch every single American citizen, and enormous precedent was set with this ruling. The following is a detailed analysis of the decision, and I hope that you will spend the time to read it.
First, a brief review.
The case, Missouri v. Biden, was filed last May by the states of Missouri and Louisiana, along with private plaintiffs, against numerous agencies in the federal government. Plaintiffs alleged that the government (including the FBI, White House, Surgeon General, and CISA, among many others) was forcing social media companies to censor speech by threat.
The Plaintiffs wanted a temporary injunction to STOP this activity as their case moved to trial. Judge Terry Doughty granted them expedited limited discovery and deposition to get the information they needed to prove a temporary injunction was warranted.
Of course, the government fought this the entire way but ultimately was widely unsuccessful. The information the plaintiffs received was absolutely mind-blowing. For certain, the government was coercing social media companies to censor—the discovery proved that beyond a shadow of a doubt.
It came time for a hearing on the injunction, and I traveled to Louisiana for that hearing. It was 8 hours long and absolutely damning for the government. If you see the post I placed in the first post in this thread, you can scroll down and read all about it.
Since that hearing, I have been honored to do several spaces with @ThaWoodChipper, who also understands the importance of this monumental civil rights case. It is the most important civil rights case in the modern era, hands down. We waited patiently for the ruling… And on July 4th, we got it.
On July 4th, the district court, under an absolutely AMAZING judge in Terry Doughty, ruled in FAVOR of the Plaintiffs. Here is where you need to pay attention. Everything this judge wrote in his ruling is a PROVEN FACT in a court of law. In a 155-page ruling, the judge METICULOUSLY dissected the record and rendered a judgment.
I threaded this ruling when it happened, and you can find it on my “highlights” page—but I want to make something clear: the fact set the judge is relying on here came from EXTREMELY limited discovery and deposition from ONLY the government Defendants.
So, the ruling was for a temporary injunction to STOP the government from the following while carving out some exceptions for them. AS THE REST OF THE CASE PROGRESSED THROUGH DISCOVERY AND TO TRIAL. Read this very carefully.
This list is going to be very important as we move forward through this thread, so please bookmark this for reference moving forward. So, the government obviously appealed this to the 5th circuit. The court heard the appeal in an expedited fashion (for them), and yesterday, THEIR opinion was filed.
It is hard to completely rehash all of the reporting I have done over the past year and some months in a short update, but basically, the government argued that they weren’t threatening anyone ever and everything we got in discovery was nonsense and misinterpreted, and the 3 judge panel of the court of appeals had to listen to that, while reviewing the DETAILED fact set the judge had ruled on in the order for the injunction.
So, quickly, what we are about to go through is the 5th circuit decision on whether or not to UPHOLD the ruling that Judge Doughty made barring the government agencies listed from the actions listed above in the 4 set screenshot or to REVERSE that ruling. It isn’t about the entire case—ONLY the temporary injunction.
I am probably 70/30 on how this panned out, but the details are important. The government asked that if the court should rule against them, they put a stay (pause) on the order for 10 days so that they could appeal it to the SCOTUS. The 5th did that, so the ruling they just laid down is PAUSED for 10 more days while the government attempts to write to the SCOTUS, convincing them that they SHOULD be able to force social media companies to censor you. Chew on that for a minute.
Also, in the interim, while we waited for this decision, I had the honor of interviewing both @AGAndrewBailey from Missouri and @AGJeffLandry from Louisiana. Both are WONDERFUL examples of what you want in a state Attorney General. For links, see:
Here is the link to the decision, and here is a summary of what we are about to dissect as best we can.
So, the court agrees the government is guilty of what is alleged, but not for ALL of the officials that Judge Doughty did. Remember, everything is based on the limited discovery they were able to receive, but I wholeheartedly disagree with this, and we will go through the reasons why. Still, the fact this was affirmed AT ALL is a massive, massive win.
They summarized much more concisely than I ever could…
1. The White House and Surgeon General—taken together Here, the appeals court affirms that the White House and Surgeon General requested social media companies remove posts and pressured them to do so. It also affirms that they also monitored the platform’s moderation activities, and demanded information from them about their policies, “Always, the officials asked for more data and stronger interventions,” said the 5th.
From the beginning, the platforms cooperated—even creating special tools, but as officials began to demand more from them, the platforms worked to “appease” government officials, “eager” to stay in their good graces.
Remember, everything in this decision REAFFIRMS a fact pattern. Here, the 5th affirms that the White House and Surgeon General attempted to interfere with the platform’s own POLICY creation. This is so important. The government can not do this.
Here, the court affirms that platforms changed their moderation policy after instruction from the government… Tsk Tsk. “…they also changed their moderation policies expressly in accordance with the officials’ wishes…”
As an aside, I don’t want to hear ONE PERSON come at any of us who have been saying this for years and say it is “misinformation” any longer. This is now affirmed both in Congress and in two courts—a district court and the Court of Appeals of the United States. @krassenstein and @EdKrassen argued with me in a space once that this is all totally untrue. I hope they will revise their positions. I won’t hold my breath.
The discovery proved that the changes many of the platforms enacted coincided closely with meetings between the White House and Surgeon General and the platforms. And even when they didn’t adopt the changes, they censored content that DID NOT BREAK their terms of service after that content was flagged by the government… Again, marinate on it…
At the same time as they were demoting normal Americans, the social media platforms capitulated to government demands to “amplify” (inorganically) the government’s “approved” narrative, specifically in this case when it pertained to vaccines for COVID.
I want everyone to think about the above for a moment. They were forcing inorganic amplification so people would be fooled into thinking the vaccine was “safe and effective” when one of them was REMOVED because it wasn’t. The sheer evil behind the obvious is unbelievable.
Even with all of that, the Ministry of Truth wasn’t happy, scolding platforms for not doing enough and trying to coerce them to do more. All of this to get that needle in your arm, consequences be damned…
And here, the court details the infamous press conference, where Jen Psaki and Vivek Murthy *expressly threatened* the platforms from the bully pulpit, even singling out certain accounts… This was the ultimate in authoritarianism, and the 5th circuit agrees.
“The platforms responded with total compliance. Their answer was four-fold.” The social media companies responded with childlike obedience to the daddy government. You can’t make this up.
They changed their internal policies in response to the presser…
They removed speakers (like the so-called “disinfo dozen” that they HAD NOT BEEN targeting BEFORE the press conference, and they continued to inorganically amplify the government’s content.
Even this wasn’t enough for the ministry of truth. They continued their public threats, invoking Section 230 protection as a cudgel for MORE action and using the office of the President as a backbone for that threat.
“Next, we turn to the CDC,” says the 5th panel. They behaved much like the White House and Surgeon General. They flagged posts with supposed “misinformation” and actively sought to promote their “official” position over others. They also provided direct guidance to the platforms on the application of their internal policy and moderation activities.
They had BOLO (Be on the Lookout) meetings on “misinformation” hot topics. They asked for moderation changes, and they OUTRIGHT DIRECTED platforms to take certain actions. Direct violation of the constitution. Platforms began relying on the CDC to “Debunk” posts it wasn’t sure about.
And now, the good ol’ FBI. They regularly met with platforms, at least since the 2020 election. They shared “Strategic information” to alert them to “misinformation” trends in the lead-up to the elections.
Per their operations, the FBI monitored platforms’ moderation policies and asked for “detailed assessments” during regular meetings. Some platforms changed their TOS to be able to comply with the FBI. While the government boasted that *only* 50% of the domestic (I repeat—DOMESTIC) content they wanted to remove was removed, the court didn’t find that so beneficial for them.
This is going to be the part where my disappointment comes in…But, again, this isn’t the CASE decision; it’s the decision on the injunction only… They talk about NIAID, CISA, and the State Department. NIAID and Fauci didn’t have regular contact with platforms or flag; they mainly appeared on Live Streams and podcasts and had those amplified. CISA and the State Department directly engaged with the platforms and discussed the tools and techniques that foreign influence actors would use.
The State Department didn’t flag content, but CISA did, acting as an intermediary for third-party groups and then “switchboarding” based on the EIP and CIS. The official’s actions “apparently led to content being removed or demoted by the recipient platforms”
Relying on the fact set above, the district court concluded that the officials coerced platforms to remove content and change their moderation policies and, therefore, were likely to succeed on the merits, granting the injunction.
LEGAL THEORY: On standing—Any ONE plaintiff that demonstrates ongoing harm or continued injury is enough to pass the standing argument, a fact that was argued eloquently by the Plaintiff’s attorney in court.
The government is arguing that Plaintiffs don’t have standing because they can’t prove a FUTURE injury. Here, the court goes over their PAST injury. But the court doesn’t agree with the government. They believe there is ongoing injury, and there will be future injury as well.
I want to stop for a second (again) and go over how monumental this actually is. This is the first time ever that a normal “user” or American has submitted evidence of social media censorship and had their concerns ADDRESSED at all by a COURT OF LAW.
Another HUGE precedent set here—the past chilling of their speech has caused individuals to SELF-CENSOR. That is considered ongoing harm. This is a massive and very important section.
“As the Supreme Court has recognized, this chilling of the Individual Plaintiffs’ exercise of their First Amendment Rights is, itself, a constitutionally sufficient injury.” They rule that the fears motivating the self-censorship aren’t hypothetical and come from very real censorship injuries they have previously suffered… Legal Eagles affirm for me the importance of JUST this paragraph… Amazing.
The government had tried to argue that ongoing harms were not going to occur because, for example, Twitter had “stopped” enforcing its COVID misinformation policy. But the court disagrees, saying that they have been censored for views well beyond COVID. Continued next—very important.
Here is something ANYONE who is considering any sort of lawsuit needs to consider. The court here aptly notes that plaintiffs aren’t suing the platforms over their TOS; they are suing to stop the GOVERNMENT from interfering with platforms. Also—the government admitted in oral argument that they are STILL in contact with these platforms today. TLDR: The court doesn’t trust that the government isn’t still forcing social media companies to censor…
This is GRAND. The government argued that because the users had been REINSTATED, all is well. The court rightly says no. The fact that they WERE REINSTATED is what causes the threat of ongoing harm. If they didn’t have an account, they wouldn’t have to worry about censorship—they wouldn’t be able to post. Masterful.
The first standing hurdle crossed and landed for the Plaintiffs. This means any chance of appeal on standing to SCOTUS is likely a failure. The government has argued this standing issue over and over and over and has been shot down every single time. Now, that is reinforced yet again. This case isn’t going ANYWHERE.
The Plaintiffs had to show that their injuries were traceable to the conduct of the government. The government argued that since the content moderation policies were in place in the Trump administration, and also because moderation decisions were made independently by the social media companies, they had no standing. However, the plaintiffs aren’t challenging the policies themselves but whether they can be traced back to government actors. The appeals court agrees with the district court that, yes, they can be.
Even though there were instances where social media companies declined to censor, the Plaintiffs only had to show the likelihood they would comply, not certainty. The logical conclusion is that they would, based on the preliminary discovery they received…
And I want to again stress this was a LIMITED discovery. The judge in the district court had made it a point in an order to let the government know that this was a mere scintilla of what would be required for production moving forward. So position this for yourselves—all of this is coming from an EXTREMELY limited production of evidence, which will now broaden to include more officials, more agency heads, more PRIVATE companies, like Facebook, Google, and X, that will be subpoenaed and deposed for evidence at trial.
Next, on standing, the Plaintiffs had to prove that their injuries could be redressed by a favorable decision on the injunction.
Again, the key here is that the Plaintiffs aren’t challenging the social media companies’ policies themselves; rather, they asked for the government to be restrained from unlawfully interfering with their independent application of those policies.
And IMPORTANTLY, the government had argued that the state plaintiffs didn’t have standing. That goes right down the trash shoot here, and it is a BIG deal. States were censored by platforms. This court determines they have standing as well.
And an interesting little tidbit here. Other state officials have experienced censorship as well, so this isn’t limited to just Missouri and Louisiana.
And next, a very important part of the 1st Amendment that often goes undiscussed. THE RIGHT TO LISTEN. Constituent plaintiffs were harmed by the censorship of their elected representatives, and the elected representatives and states are harmed WHEN THEY CAN NOT HEAR their constituents. This was discussed at length in my interview with Louisiana Attorney General Jeff Landry.
The appeals court rules that the Plaintiffs have standing—finally putting that issue to bed (hopefully) and also, the court makes sure to include that even the CDC admitted the need to “hear” citizens. It may be for a different reason for them, but if you think about it—if the government couldn’t “hear” what we are all saying, they wouldn’t know what narrative they needed to craft to counter the truth… Goes both ways. NEXT!
There is a high bar to hit to even be granted an injunction. You must meet four criteria, as detailed below. 1. You are likely to succeed on the merits of your case. 2. There is a “substantial threat that you will suffer “irreparable injury” without it. 3. The injury you could sustain outweighs whatever “harm” the injunction could cause the other side. 4. An injunction doesn’t disserve the public interest.
FRAME THIS. “The Plaintiffs allege that federal officials ran afoul of the First Amendment by coercing and significantly encouraging social media platforms to censor disfavored speech, including by threats of adverse government action like antitrust enforcement and legal reforms. WE AGREE”
The government CAN NOT abridge free speech. Private parties are not normally constrained by the First Amendment. Again, the importance of this can not be understated. We are here because the government acted through threats to social media companies to censor “disfavored” viewpoints. Every case against a social media company for their TOS or their censorship moves has failed because the Plaintiffs have targeted the social media company rather than the government. One exception I know of off the top of my head is the Berenson case, and he settled.
One of the hurdles that needs to be crossed is “significant encouragement.” You need to prove more than just “uninvolved oversight” from the government. You need to prove that the government was encouraging the decision to the degree that you can say it was their choice—not the companies’.
The other factor is coercion. It is very nuanced. Coercion can be subtle, and the court has to take a number of things into consideration.
There needs to be a distinction made between “coercion” and “persuasion.” Here, the court dives into how the 2nd Circuit has meted that out. If an action can be reasonably interpreted as intimating that some form of punishment or adverse action will follow if the entities do NOT listen to the government, that is coercion. We have CLEAR coercion in this case. But the court continues its analysis because this is going to SCOTUS; it is important and needs to be VERY well settled when it gets there.
They reference a case here where a sitting senator contacted Amazon asking them to remove or de-amplify a book about COVID that she claimed spread dangerous disinformation and provided Amazon with a report showing the alleged harm and a plan to alter their policy to stop it from happening again. She prodded them to “do better.” The author sued and lost. The court reasoned that she technically had no power to do anything to Amazon in the singular, so it wasn’t a threat (summarizing greatly here.) HOWEVER…
If there is some tangible power recognized by the government over the entity, you can assert that there may have been an implied threat—such as the White House and Surgeon General making threats from the podium at a press conference and Rob Flaherty invoking the President of the United States as he demands content to be removed.
I encourage everyone to read the precise wording behind all of the above (there are some I haven’t included) to understand clearly the legal reasoning behind the decisions the court made in THIS case. It will have ripple effects upon MANY other ongoing cases. For example, I can see smart attorneys using this ruling when trying to fight for workers’ rights in not taking the vaccine to be able to retain employment. If this ruling sets a precedent about *how* and *what* constitutes “coercion” by the government, they could then, in turn, argue that they were acting because of the threat of punishment should THEY NOT.
And on to how all of that applies here, in Missouri v Biden. Officials don’t deny they worked alongside platforms but argue that their contact was permissible government speech. This was an argument that was made all over the media and from anti-free speech advocates that the government was being barred from speaking in this injunction and that THEIR 1st amendment rights were being violated. As an aside, that isn’t what happened at all. The government was free to use platforms to blast its messages in COUNTER to what the perceived “wrong-think” was. They were just being barred from forcing the social media companies from doing it. They could talk to the social media companies about all manner of topics, just NOT topics when it came to 1st amendment-protected speech
The White House and the Surgeon General “likely” violated the First Amendment. They say likely because the case hasn’t gone to trial yet, and they can’t make a finding of “fact” on that until a jury does.
There were CLEAR examples of coercion, some of the many detailed here for anyone with eyes to read. “On multiple occasions, the officials coerced the platforms into direct action via urgent, uncompromising demands to moderate content”
That was enough, but the court (knowing this will likely be appealed) went a step further to scrutinize the actions using more detailed criteria… and still…. COERCION. Especially demeanor. It matters. I said throughout this that Rob Flaherty treated Meta specifically like a battered wife….I know that is hard to read, but it’s true. The wife (Meta) returned to Flaherty over and over, promising to do better after being berated, cursed at, and scolded. It is really something to read.
The asks were phrased as orders, complete with follow-up to ensure the platforms had acted as directed.
It doesn’t get more obvious than this.
Platforms acted directly as a result of the WH and SG demands, including changing their TOS to accommodate what the government required. This is really something.
It’s here in black and white. They made accusations that platforms were murdering people and then followed that up with threats of direct action. There was always the implication of an “or else” from the government. Again, all of this coming from LIMITED discovery and deposition of just a FEW witnesses… Imagine what more we will find?
As another aside, the court cites the case of @DC_Draino EXTENSIVELY in this. @RonColeman should be reading this in detail because you have things in this that will ABSOLUTELY help as you move forward in your endeavor.
And, the court finds obvious encouragement. This is damning for the White House and Surgeon General.
The changes to content moderation policy at the behest of, and with the cooperation of, the government really put a nail in this coffin for them… This is really an overreach of the highest order…
This is probably the most important paragraph I have read so far—damning. The court asserts that because of this action, the government has now influenced every content moderation/policy these companies create or change IN THE FUTURE, meaning that because of the pressure ALREADY imposed, the companies won’t ever be acting on their own volition again, instead doing what they *think the government would want them to do* Wow.
Platforms actions are deemed to be “that of the state.” The implications of this are so wide-reaching that I don’t think many of us fully grasp them yet.
The FBI is a little different. While the messages weren’t overtly threatening, they can be taken as so because they come from LAW ENFORCEMENT OFFICERS.
Platforms absolutely perceived the messages to be threatening, as they removed content from DOMESTIC posters in response to the “hack and dump” narrative peppered to social media companies surrounding the Hunter Biden laptop story. But that wasn’t all.
And the FBI again meddled in content moderation policy, something they have tried to deny, but limited discovery proves is the case… Elvis Chan was in charge here, and he was deposed. How did they know it was him? The government refused to identify him. Meta didn’t refuse. They got his name from Meta….
Again, even when the overt coercion standard isn’t met like it was for the White House and Surgeon General, the CDC got involved with content moderation and policy set by the platforms, and that is a BIG no-no.
“… Platforms decisions were not made by independent standards…but instead were marred by modification from CDC officials. Thus, the resulting content moderation…”
And here is where I have a frustrating grunt. Not so much because of NIAID but because of CISA. (And a little of the State Department) It is important to note the court specifies that “at this stage,” there isn’t sufficient evidence to find that they coerced platforms—although I disagree….
They say here that the facts haven’t demonstrated yet that they were demanding rather than requesting, but in my opinion, CISA is a MAJOR component of all of this—the head of the snake. Allowing CISA to continue to act unabated feels almost like throwing the baby out with the bath water… CISA is EGREGIOUS, and the entire nerve center for a lot of this.
After all, it was CISA who wanted the “Disinformation Governance Board.” It was Easterly of CISA who declared her agency would treat YOUR THOUGHTS as “cognitive infrastructure”—the property of the government. It was CISA who worked extensively and created the outside groups and NGOs responsible for all of what @NameRedacted247 has been reporting on.
It is CISA who funnels taxpayer dollars and works in tandem with these orgs to determine “misinformation.” Leaving CISA out of this, even in the interim until more discovery, is akin to slamming the door on understanding the ENTIRE workflow. This is what I was referencing yesterday. This—taken in tandem with the rest of the decision, makes everything else sting a little bit… It makes me shake my head. I understand the specifics you need to hit to be able to make an injunction like this stick—we hit them here—but…
For example, what is to stop the WH, Surgeon General, FBI, etc., from just going to CISA, who can still talk with these companies AND “switchboard” and *suggest* moderation and having them *suggest* removal or changes?? This demonstrates why this is a difficult lawsuit to litigate. It doesn’t mean the case won’t ultimately find that CISA is just as guilty as the rest, but it does throw a monkey wrench, as CISA can continue their BS while social media companies decide to obey or not—throughout the 2024 election cycle…. Unless…
Unless the Plaintiffs appeal this portion. I don’t know if the benefit of that outweighs the risk, I am not an attorney. But as I said yesterday, the jumping up and down, while warranted, doesn’t tell you the whole story, and there is a major downside to this portion of the ruling. Major downside. Don’t sugarcoat it; just swallow it as it is. Bitter and crappy.
In conclusion (sort of), the court vacated a number of the line items from that post I told you to bookmark above. It then rewrote what the CDC, FBI, WH, etc (other NIAID and CISA, etc.) are barred from doing.
Here, the court addresses the government’s argument that an injunction is over broad because it would cover nonparties to the lawsuit. It also better defines what those agencies CAN NOT do… I’m a bit torn on this, too…
Nonetheless—this is a GROUND BREAKING decision—truly. It is a net positive that a federal appeals court has codified the fact that the government was acting completely unconstitutionally when they forced social media platforms to censor and ban people. It is a massive win for free speech. It is a massive win for precedent. It is a massive win for the future of this case.
And, while all of the below organizations are enjoined from coercing the government to censor and need to figure out some other way to do it, this massive case will continue through deposition and discovery in LA court. This judge is amazing—he is a stalwart for the Constitution. We have some hope that our legal system is not COMPLETELY broken. I mean, the climate czar is included here. How can you not cheer a bit?
I will continue to report on this case—a case of the utmost importance to ALL of us. Thanks for reading.