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In win for Missouri A.G., appeals court rules Biden administration 'ran afoul' of First Amendment

 Social media apps on an iPhone.
Kārlis Dambrāns
Social media apps on an iPhone.

The 5th U.S. Circuit Court of Appeals concluded a lower court’s wide-ranging order barring the federal government from communicating with social media companies was “vague and broader than necessary.”

A federal appeals court in Louisiana agreed on Friday evening with Missouri’s attorney general that the Biden administration “ran afoul of the First Amendment” by threatening social media platforms over posts spreading misinformation.

But the three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans concluded a lower court’s wide-ranging order barring the federal government from communicating with social media companies was “vague and broader than necessary.”

The appeals court’s Friday order vacated much of the lower court’s injunction, with the exception of a provision it narrowed concerning alleged coercion.

“As an initial matter, it is axiomatic that an injunction is overbroad if it enjoins a defendant from engaging in legal conduct,” Friday’s ruling said. “Nine of the preliminary injunction’s 10 prohibitions risk doing just that. Moreover, many of the provisions are duplicative of each other and thus unnecessary.”

The lawsuit was filed last year by former Missouri Attorney General Eric Schmitt and Louisiana Attorney General Jeff Landry. It alleges the federal government colluded with social media companies like Twitter and Facebook to suppress the freedom of speech.

U.S. District Judge Terry Doughty ruled July 4 that officials under both Democratic President Joe Biden and Republican President Donald Trump coerced social media companies to censor content over concerns it would fuel vaccine hesitancy during the COVID-19 pandemic or upend elections.

Doughty, a Trump appointee, said the “widespread censorship campaign” violated the U.S. Constitution’s First Amendment’s free speech guarantees. His order barred government agencies, including the Department of Health and Human Services and the Federal Bureau of Investigation, from contacting social media companies “for the purpose of urging, encouraging, pressuring or inducing in any manner the removal, deletion, suppression or reduction of content containing protected free speech.”

The Biden administration quickly appealed, and the 5th Circuit temporarily put the judge’s ruling on hold.

Friday’s order will not go into effect for 10 days, giving federal officials time to appeal to the U.S. Supreme Court.

Despite the appeals court limiting restrictions on the Biden administration, Missouri Attorney General Andrew Bailey declared victory.

“Missouri will continue to lead the way in the fight to defend our most fundamental freedoms,” Bailey said in an emailed statement.

While the court limited the restrictions, Friday’s order pilloried the Biden administration’s efforts to combat misinformation by pressuring social media companies to remove posts.

“ …officials made express threats and, at the very least, leaned into the inherent authority of the president’s office,” Friday’s ruling stated.” 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.’”

The lawsuit has garnered widespread attention, and attracted co-plaintiffs with long histories of spreading misinformation and debunked conspiracy theories.

That includes Jim Hoft, founder of the right-wing conspiracy website Gateway Pundit, who was added to the lawsuit in August and has built a career on promulgating conspiracies on a wide range of topics, from the 2018 Parkland school shooting to former President Barack Obama’s birth certificate.

More recently, Hoft has been among the biggest purveyors of election fraud lies. He currently faces defamation lawsuit in St. Louis circuit court filed by two Georgia election workers who faced death threats following Gateway Pundit’s false stories about a vote-rigging scheme.

The lawsuit also attracted support from presidential hopeful Robert F. Kennedy Jr., who has a long history of promoting medical misinformation such as the idea that vaccines cause autism and Wi-Fi causes cancer.

This story was originally published by theMissouri Independent, part of the States Newsroom.

Jason Hancock has been writing about Missouri since 2011, most recently as lead political reporter for The Kansas City Star. He has spent nearly two decades covering politics and policy for news organizations across the Midwest, and has a track record of exposing government wrongdoing and holding elected officials accountable.
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