While the Second Amendment is being violated in New Mexico, we are getting news tonight that the First Amendment is being honored in the Fifth Circuit court of appeals.
WOW. 5th Circuit court JUST UPHELD Missouri v Biden and ruled that the following people CAN:
— Justin Hart (@justin_hart) September 8, 2023
1) NO LONGER CENSOR YOU
2) NO LONGER FLAG YOUR POSTS
3) NO LONGER DICTATE SOCIAL MEDIA POLICIES
4) NO LONGER COMMUNICATE WITH THESE COMPANIES TO CENSOR YOU
5) NO LONGER WORK WITH…
Previously, we told you about Missouri v. Biden. As we said on July 4 of this year when the district court issued an injunction:
This is huge deal. This is potentially a landmark case on how the First Amendment applies in the age of social media[.]
We also covered that case here, here and here.
Generally speaking, it is widely believed that social media is free to censor people as they see fit. We believe there might be some legal arguments that can be made against that, but that is a common belief. ‘They’re just private companies making their own decisions’ is the argument offered by people defending this censorship. For instance, here’s uber-weenie David French making that argument:
This is just shamelessly wrong. A private political campaign is not the government. A political party is not the government. A private company is not the government. This isn’t a “systematic violation of the First Amendment.” The First Amendment isn’t implicated at all. https://t.co/V0iDkkFe8s
— David French (@DavidAFrench) December 3, 2022
We have suspected for years that this was French just running interference, and that, in fact, he likes Internet censorship. Recently, he confirmed our suspicions:
Let's not pretend that what's happening here is some sort of thoughtful ideological critique of the ADL. There's a tsunami of raw, unfiltered anti-Semitism on this platform. Decent people, right and left, should respond accordingly. There are competitors to this site.
— David French (@DavidAFrench) September 5, 2023
Antisemitism speech is free speech, however vile it can be. So French is upset that Twitter/X is allowing for free speech. We would rather have people feel free to say vile things then have someone decide what kind of speech is allowed.
But the other retort to the French view is presented in Missouri v. Biden, because the argument in that case is that the social media companies were not simply acting on their own. Private action can become government action, under the right circumstances—the most obvious being when the government coerces the private action. The lower court found that various social media companies—like Twitter/X, Meta/Facebook and Google/YouTube were—were not censoring based on their own desires, but because of illegal government pressure. As a result, the District Court issued a preliminary injunction, prohibiting a broad range of communication by the government, and it applied nationwide. If you have been on social media since then, this order protected your right to free speech.
The Biden administration appealed and tonight they largely lost. The Fifth Circuit largely upheld that order, explaining that this was the standard for when private action became state action.
The government cannot abridge free speech. U.S. Const. amend. I. A private party, on the other hand, bears no such burden—it is ‘not ordinarily constrained by the First Amendment.’ Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). That changes, though, when a private party is coerced or significantly encouraged by the government to such a degree that its ‘choice’—which if made by the government would be unconstitutional, Norwood v. Harrison, 413 U.S. 455, 465 (1973)—’must in law be deemed to be that of the State.’ Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Barnes v. Lehman, 861 F.2d 1383, 1385–36 (5th Cir. 1988). This is known as the close nexus test.
They also found that the Plaintiffs, including many doctors, state officials and even the Gateway Pundit had met the requirement that there be a sufficient threat of irreparable harm:
We agree that the Plaintiffs have shown that they are likely to suffer an irreparable injury. Deprivation of First Amendment rights, even for a short period, is sufficient to establish irreparable injury.
So, they largely upheld the lower court’s order. They did tighten up the list of officials being enjoined and they clarified the language so it clearly prevented both coercion and ‘significant encouragement’ as the law prohibits. This means that the Biden administration can ask nicely for censorship but can’t engage in the kind of pressure campaigns it has in the past.
We respectfully disagree with that, however. Once a mobster says ‘give me your money or I’ll suffocate your kids’ you can’t unring the bell of coercion. Later when the same mobster asks nicely, that coercion still applies, even if it isn’t reiterated. We think the behavior in the past has been bad enough that the injunction should prevent the Biden administration from even asking nicely for censorship until enough time passes to dissipate that atmosphere of coercion. We hope that the Missouri side of the case attempts to get that element reinstated in the Supreme Court.
But let’s not let that cloud the good news.
Massive win against #BigTech censorship, massive win for #FreeSpeech, and grounds for impeachment of @POTUS #Wray & @CDCgov key personnel. Federal court finds government mass violated American's civil rights through coerced social media censorship. https://t.co/FYSKYtx6gG
— Robert Barnes (@barnes_law) September 8, 2023
The 5th Circuit has upheld much of Judge Doughty’s findings that the Biden administration violated the free speech rights of Americans with covid censorship demands. This may well be the most consequential first amendment case of the 21st century. https://t.co/WeB2fFRrWc
— Clay Travis (@ClayTravis) September 8, 2023
As you can see, Mr. Travis has a link to the opinion. One thing to note is that it is a per curium opinion which means it is not signed by any particular judge. Typically, this is reserved for when they feel the ruling is not very controversial or complicated and such opinions are usually short. But this opinion is not short.
Congratulations to @AGJeffLandry, @AndrewBaileyMO, @Eric_Schmitt, John Sauer, @NCLAlegal, @jimhoft_ @gatewaypundit, @DrJBhattacharya, and so many others.
— America First Legal (@America1stLegal) September 8, 2023
While the Court stayed the modified injunction for a short period, and modified it in some respects (regarding the individuals and entities subject to the injunction and the parameters of the injunction), this case is still a big win for freedom of speech in the United States.
— America First Legal (@America1stLegal) September 8, 2023
You might remember that an amicus brief is basically a brief from someone who is not a party, who believes they can give the court some kind of insight. The court doesn’t have to consider it at all, but their brief might have helped.
Why would the White House National Climate Advisor need to censor social media?
— Ryan Maue (@RyanMaue) September 8, 2023
We think the answer is self-explanatory.
Yes, WOW is an understatement...!!
— TheCryptoMouth (@TheCryptoMouth) September 8, 2023
It isn’t game over. But it is a W and we should be thankful. 🙏
— Discerning Texan (@CWRandomMusings) September 8, 2023
Biden admin thwarted in the censorship of their opposition.
— Bad Kitty Unleashed 🦁💪🏻 (@pepesgrandma) September 9, 2023
The Dept of Defense, and DHS (CISA) are missing from this list. They are the worst offenders. We have an upcoming election, so now what? https://t.co/pm77qZnM4g
5th Circuit bars White House National Climate Advisor, @alizaidi46 from working with social media to censor Green New Deal opponents and climate skeptics.👇 https://t.co/3Xo0Wd6FII
— Steve Milloy (@JunkScience) September 9, 2023
How many of you reading this even know about Missouri v Biden, a landmark free speech case against our government that's been nearly erased from coverage in the mainstream corporate media? https://t.co/Uu4Rj6Yb9d
— Jonathan Steigman (@MagicPeaceLove) September 8, 2023
It deserves a lot more attention.
You guys remember when this was a ridiculous decision that was going to swiftly be overturned on appeal? https://t.co/Q5pQiND8PY
— GeorgeSmith2 (@WestMichP2) September 8, 2023
How refreshingly cool and correct and First Amendmentity https://t.co/c0xmO8Bpg5
— Odd Knot (@knot_odd) September 9, 2023
We are totally using that word from now on.
Wow! A long read but brings back some of the trust I’ve lost in the judicial system.
— Pam Bible (@bible1_pam) September 8, 2023
Crazy idea, but you know what actually might be the biggest threat to American democracy? How about the president in power illegally censoring what citizens can say? If we still had an honest media, this would be the biggest court case of the 21st century. https://t.co/8bREhj36MU
— Clay Travis (@ClayTravis) September 8, 2023
And Rand Paul also has a special message related to this news:
Americans don’t take infringements on their liberty lightly. Under my Free Speech Protection Act the government will no longer be able to cloak itself in secrecy to undermine the First Amendment. https://t.co/JthshAkwHq
— Rand Paul (@RandPaul) September 9, 2023
We haven’t read the bill but it sounds like a good idea. And if that is true, if it is a good idea that will protect the free speech rights of Americans, it will never get through the Democrat-controlled Senate.
Finally, we searched David French’s X account for any mention of Missouri or the initials ‘Mo.’ Strangely, we couldn’t find any reference to the case.
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