by Elizabeth Dallam Ayoub and Patrice Johnson | December 8, 2023
A recent federal appeals court minced no words in agreeing with a lower court’s ruling on free speech. The 5th Circuit Court’s judgment could hardly have been more clear, stating, “numerous federal officials coerced social-media platforms into censoring certain social-media content, in violation of the First Amendment.” And that was the tip of the Titanic-smashing iceberg. The judges declared, “the Supreme Court has rarely been faced with a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life. Therefore, the district court was correct in its assessment.” (page 61)
Over the past several years, conservative news commentators, politicians, and individuals have complained that their social media accounts were shadowed or removed. Chances are every reader here knows someone who was put in Facebook or name-the-platform jail. Social media companies claimed they were acting fairly and that a panel of nonpartisan judges was screening postings on the public’s behalf.
Then, Elon Musk purchased Twitter (now X), and the ballgame changed. His release of the Twitter Files exposed breathtaking documentation of social media companies suppressing free speech—under, as the 5th Circuit concluded, “relentless pressure from certain government officials.” (page 2) Those officials were located in “the White House, the Surgeon General, the CDC, and the FBI.” (page 74)
That campaign was multi-faceted—the officials “publicly threaten[ed] [the]companies” while they privately piled on “unrelenting pressure” via “demands for greater censorship.” And they succeeded—the platforms censored disfavored content.
--State of Missouri et al v. Joseph R. Biden, Jr., et al, Case 23-30445, Fifth Circuit Court of Appeals, Sept.8, 2023, p. 42.
This pressure, the judges ruled, “likely had the intended result of suppressing millions of protected free speech postings by American citizens.” (page 62)
Worse, this blatant suppression of free speech occurred under “relentless pressure” from government officials. The seriousness of the issue rang through the court’s word choices. These “federal officials.” “orchestrated” a “coordinated campaign” to silence free speech—often with the goal of protecting the progressive candidates and incumbents—on an order
of “magnitude,” that “jeopardized a fundamental aspect of American life.”
In layman’s terms, this was the salted earth from which tyranny grows.
Rather than use the judge's own words--and as if to demonstrate that Orwellian government-speak was alive and kicking--the New York Times substituted softer language when headlining the news: Appeals Court Rules White House Overstepped 1st Amendment on Social Media. NPR depicted the ruling in an almost cutesy way, saying, Appeals court slaps Biden administration for contact with social media companies.
Just an overstep, a mild court slap. Nothing to see here.
The First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The court found that the government flagged content on social media and monitored social media platforms’ activities. Officials in the administration asked for and received updates from the social media companies, the court determined.
The administration “pressed the platforms” to remove posts and officials in the administration “asked for more data and stronger interventions.” Then, court ruled the government coerced these media platforms into making their decisions.
“On multiple occasions, the officials coerced the platforms into direct action via urgent, uncompromising demands to moderate content. Privately, the officials were not shy in their requests –they asked the platforms to remove posts ‘ASAP’ and accounts ‘immediately,’ and to ‘slow down’ or ‘demote ’ content. In doing so, the officials were persistent and angry. . . . And, more importantly, the officials threatened—both expressly and implicitly—to retaliate against inaction.” (page 43).
Additionally, the court determined that governmental officials’ communications were on-the-whole intimating. Government officials “made express threats and, at the very least, leaned into the inherent authority of the President’s office.” (page 44)
The court agreed with the lower court’s finding that the social media platforms cooperated with the White House and attended regular White House meetings.
Throughout the case, the federal government defendants claimed they were merely persuading the social medial platforms to act as was “permissible government speech.” The government was trying to save its citizens from misinformation and disinformation.
Essentially, the government was saying to taxpayers--who fund the Department of Education at the federal level to the tune of $274 billion yearly--that even though the U.S. spends this amount of money to educate people to analyze, synthesize, and evaluate information, only the federal government has the ability to analyze, synthesize, and evaluate information appropriately for its people.
Social media is an outlet for all here in the United States. It is a way many people communicate. The ability to access other points of view is germane to We the People living in what is supposed to be a transparent government, based upon the people directing the government.
Government flows from We the People to those in whatever the administration. We the People are entitled to speak freely, not to be censored, shut down, or monitored.
“Deprivation of First Amendment rights, even for a short period, is sufficient to establish irreparable injury,” Justices Clement, Elrod and Willett wrote, citing former case law (page 63).
What happens to the officials who took away the people’s First Amendment rights?
According to the court’s order, 14 members of the Executive Office of the President of the United States; the Surgeon General and the directors, administrators and employees of the Surgeon General; the Centers for Disease Control and Prevention (CDC); and the FBI:
“ . . . shall take no actions, formal or informal, directly or indirectly,
to coerce or significantly encourage social-media companies to
remove, delete, suppress, or reduce, including through altering
their algorithms, posted social-media content containing protected
free speech. . . .” (page 70)
The unethical media may try to sugarcoat the ruling. An authoritarian government may try to continue its covert, unlawful acts. No one may lose their jobs or serve prison time. In the meantime, We the People now know what is expected of the federal government. We the People, now more than ever, realize we must be the watchdogs if we are to defend and preserve our inalienable right to free speech.
The 5th Circuit Court of appeals scored a home run.
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