The U.S. 5th Circuit Court of Appeals has vacated a lower court's injunction barring federal government agencies from ordering social media companies to suppress protected free speech.
Federal Officials Can Keep Pressing Tech Platforms To Remove Content for Now, Court Says | Reason | Elizabeth Nolan Brown:
July 17, 2023 - "The U.S. Court of Appeals for the 5th Circuit put on temporary hold an order blocking federal officials from pressuring social media companies to suppress certain accounts, posts, or types of information ... issued Friday. It deferred ruling on the Biden administration's motion for a stay pending appeal 'to the oral argument merits panel which receives this case,' which means those judges will decide whether to lift the current administrative stay or keep things on pause [after] the full appeals process plays out. The court also expedited the case to the next available oral argument slot, meaning an appeals court panel will hold a full hearing on the case as soon as possible....
"First Amendment lawyer Robert Corn-Revere recently wrote for Reason about this case (Missouri v. Biden), suggesting that 'the political noise surrounding the case is distracting attention from the important First Amendment principles at stake.' Corn-Revere cites Judge Richard Posner in Backpage.com, LLC v. Dart: A public official who 'threatens to employ coercive state power to stifle protected speech violates a plaintiff's First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant's direct regulatory or decisionmaking authority…or in some less-direct form.' (In that case, an Illinois sheriff pressured credit card companies to stop doing business with Backpage.)
"A ruling that federal authorities must limit flagging online speech to encourage its suppression or removal by tech platforms should be viewed by free speech defenders as an unambiguously good thing. But the lower court's decision in Missouri v. Biden — the decision now on temporary hold — has attracted a lot of criticism in some corners that should know better. For instance, The Washington Post called the initial order 'a victory for conservatives' and warned that it 'could have a major chilling effect on contacts between tech companies…and a broad swath of federal agencies' — as if that's a bad thing!...
"In the lower court's ruling, U.S. District Judge Terry A. Doughty banned all Department of Justice and FBI employees plus many federal public health officials from 'meeting with social-media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content,' and 'specifically flagging content or posts on social-media platforms and/or forwarding such to social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech'....
"The case was brought by the Republican attorneys general (A.G.s) of Louisiana and Missouri, as part of a beef with the Biden administration.... 'State A.G.s are unlikely defenders of the First Amendment given the members of that fraternity who make their political bones by mounting anti-speech crusades,' notes Corn-Revere. And on the same day Missouri v. Biden came down, [Missouri A.G. Andrew] Bailey was one of seven state A.G.s who sent a threatening letter to Target warning that the sale of LGBTQ-themed merchandise as part of a 'Pride' campaign might violate state obscenity laws.'
So, Bailey is not exactly a stalwart and unwavering defender of First Amendment principles. And Doughty's opinion 'credulously accepts plaintiffs' claims that almost all of the contacts with government officials (and some civilians) were coercive, and it uncritically accepts assertions that "only conservative viewpoints were allegedly suppressed,"' notes Corn-Revere. Doughty also makes a number of other puzzling assertions in his (now on-hold) 155-page ruling.... But it doesn't mean that Doughty's decision is totally without merits, either.
"'The district court's ruling in Missouri v. Biden rightly recognizes the serious threat government pressure tactics pose to free speech online,' as the Foundation for Individual Rights and Expression put it. This sort of backhanded pressure on social media has come to be known as 'jawboning.' Robby Soave took a deep look at the issue for Reason's March 2023 cover story [see video].
"Perhaps the 5th Circuit's temporary hold on the order is 'the right call given the scope of the order and the many questions it raises," suggests Corn-Revere. But 'while the court of appeals should clarify and narrow the terms of the injunction, reversing it would be a mistake. It doesn't require an active imagination to predict how far a future administration (of either party) might venture if the courts greenlighted this level of governmental meddling in private moderation decisions.'"
Emails show CDC policed COVID speech on Facebook | Reason TV | January 19, 2023:
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