The 5th Circuit Court of Appeals just announced a major win for the First Amendment in the United States.
In State of Missouri, et al., v. Joseph R. Biden, Jr., et al., the U.S. Court of Appeals for the Fifth Circuit agreed that officials from the Biden Administration, CDC, FBI and the U.S. Surgeon General’s office violated the First Amendment when they “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences.” The 5th Circuit also found the White House “significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment.”
“A group of social-media users and two states allege that numerous federal officials coerced social-media platforms into censoring certain social- media content, in violation of the First Amendment,” the decision says. “We agree, but only as to some of those officials. So, we AFFIRM in part, REVERSE in part, VACATE the injunction in part, and MODIFY the injunction in part.”
What this means is that the Biden Administration used the power of the Presidency to coerce and force social media companies to censor political speech. That’s a no-no in America, and according to the Missouri Attorney General, an impeachable offense of the President.
The 5th Circuit even says that this overt censorship of COVID-related material has/had a chilling effect and has caused media and social media users to self-censor, depriving people of important COVID information during the pandemic.
Missouri Attorney General Andrew Bailey had this to say:
“We filed this landmark lawsuit against dozens of officials in the federal government to halt the biggest violation of the First Amendment in our nation’s history. The first brick was laid in the wall of separation between tech and state on July 4. Today’s ruling is yet another brick,” said Attorney General Bailey. “Missouri will continue to lead the way in the fight to defend our most fundamental freedoms.”
The Fifth Circuit wrote, “We find that the White House, acting in concert with the Surgeon General’s office, likely (1) coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences, and (2) significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment.”
The Court continued, “the officials made express threats and, at the very least, leaned into the inherent authority of the President’s office. The officials made inflammatory accusations, such as saying that the platforms were ‘poison[ing]’ the public, and ‘killing people.’ The platforms were told they needed to take greater responsibility and action. Then, they followed their statements with threats of ‘fundamental reforms’ like regulatory changes and increased enforcement actions that would ensure the platforms were ‘held accountable.’ But, beyond express threats, there was always an unspoken ‘or else.’”
The Court continued, “We find that the FBI, too, likely (1) coerced the platforms into moderating content, and (2) encouraged them to do so by effecting changes to their moderation policies, both in violation of the First Amendment. We start with coercion. Similar to the White House, Surgeon General, and CDC officials, the FBI regularly met with the platforms, shared ‘strategic information,’ frequently alerted the social media companies to misinformation spreading on their platforms, and monitored their content moderation policies. But, the FBI went beyond that—they urged the platforms to take down content. Turning to the Second Circuit’s four-factor test, we find that those requests were coercive.”
Bailey says they silenced opposition. “They changed their algorithms to satisfy the Biden Administration,” Bailey said in a radio interview Monday.
While this is of the utmost importance, it does not address the faux “fact checking” organizations which target right of center news, alternative and independent media, or even anyone on the left who steps out of line.
Journalist Matt Taibbi was on the receiving end of this recently:
“I recently received, for the first time, a questionnaire from an ‘anti-disinformation’ firm that rates trustworthiness of media outlets as a commercial service. As Racket is not advertiser-supported, my initial instinct was to non-answer, but such services at least theoretically now have many ways to impact even a Substack business, whose newsletter format is designed to be resistant to such digital pressure.”
Taibbi is no William F. Buckley Conservative; he is intellectually honest and a very talented journalist. You’ll recall Elon Musk tapped Bari Weiss, Michael Shellenberger and Taibbi to review, analyze and Tweet out “The Twitter Files” following Musk’s purchase of Twitter. The Twitter files exposed the behind the scenes machinations of Twitter’s content control and censorship of certain political speech, including the decision to suppress the Hunter Biden laptop story after the New York Post broke it ahead of the 2020 Presidential Election.
Here, Weiss Tweeted today about Dr. Jay Bhattacharya, epidemiologist and professor of medicine at Stanford University, and one of the Plaintiffs in the Missouri v. Biden lawsuit, and how they discovered he’d been blacklisted by Twitter:
When we went to cover the Twitter Files, one of our very first searches was for a name: "Dr. Jay Bhattacharya."
We found that he'd been put on a blacklist to prevent his tweets from trending.
Could never have imagined that it would all wind up here:https://t.co/2tiPlcPwoW
— Bari Weiss (@bariweiss) September 11, 2023
As an epidemiologist and professor of medicine at Stanford, Dr. Jay Bhattacharya not only had the credentials and authority to challenge COVID protocols during the pandemic, he frequently presented treatments and therapeutics to help prevent COVID, as well as to treat it more appropriately for those who contracted the virus – refuting some of the Fauci/CDC hospital protocols. For that he was Twitter “blacklisted.”
The 5th Circuit says in its decision:
“The platforms were apparently eager to stay in the officials’ good graces. For example, in an effort to get ahead of a negative news story, Facebook preemptively reached out to the White House officials to tell them that the story “doesn’t accurately represent the problem or the solutions we have put in place.”
“The officials were often unsatisfied.”
“On another occasion, one platform listed “policy updates . . . regarding repeat misinformation” after meeting with the Surgeon General’s office and signed off that “[w]e think there’s considerably more we can do in partnership with you and your teams to drive behavior.”
“Algorithmic blanketing of independent media is reaching levels unimaginable even a year ago,”Taibbi said. He explains that “new deamplification tools reduce visibility to the point where effective marketing has become difficult even if you can afford to pay for it.”
“I would be less irritated by this had I not spent much of the last eight months seeing academic researchers and legacy news organizations snitch out alternative media to platform censors, both in Twitter emails and some recent FOIA results. They’re doing this while larger corporate outlets that according to ‘anti-disinformation’ trackers score highest for trustworthy practice are tossing out standards.”
The Globe has also been on the receiving end of the censorship. While the Biden Administration, CDC, FBI and U.S. Surgeon General’s office can’t coerce social media platforms without violating the 1st Amendment, more First Amendment lawsuits will be needed to protect the independent and alternative media under attack by the very well funded “anti-disinformation” firms.
“Missouri v. Biden was filed by the attorneys general of Missouri and Louisiana on May 5, 2022,” Missouri AG Bailey said. The Court granted their motion for discovery on July 12, 2022, clearing the way for Missouri and Louisiana to gather documents and depose witnesses from the Biden Administration.”
“Missouri and Louisiana deposed top-ranking officials in the federal government under oath, including Dr. Anthony Fauci, FBI Special Agent Elvis Chan, Eric Waldo of the Surgeon General’s Office, Carol Crawford of the CDC, Brian Scully of the Cybersecurity and Infrastructure Security Agency, and Daniel Kimmage of the State Department.”
The New Civil Liberties Alliance also represented Drs. Jayanta Bhattacharya, Martin Kulldorff and Aaron Kheriaty, and Ms. Jill Hines.
The preliminary injunction is good for 10 days from Friday Sept. 9th during which time the defendants may decide to appeal the decision to the U.S. Supreme Court. Wouldn’t that be interesting?
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