Did you hear it? Did you hear the cries of agony and denial coming from Washington D.C. yesterday? Once again, the Biden Administration has been called out for how it has trampled our Constitutional rights. This time, the 5th Circuit Court of Appeals not only upheld most of The State of Missouri et al v Joseph R. Biden, Jr., et al, but it also wrote a damning Per Curiam opinion in the process. In short, it confirmed what we already knew: the Administration did more than just ask social media platforms to cooperate and toe the party line during the height of the Covid crisis, it coerced them into cooperating.

A bombshell ruling by the 5th circuit court today, finding the Biden White House, the FBI and the CDC violated the First Amendment rights of millions of Americans… pic.twitter.com/YYWuXs3HcQ

— Jesse Watters (@JesseBWatters) September 9, 2023

Jenin Younes, a lawyer with the New Civil Liberties Alliance (one of the plaintiffs in the case), said the decision “might be the most significant First Amendment case in the internet age and is a crucial outcome for flourishing of free speech in an era when social media has become the modern public square.” Only time will tell if the statement is correct. What the decision is, however, is a confirmation that the Administration, including members who work closely with Biden himself, did their best to intimidate and coerce social media platforms to remove posts–as well as user accounts–that did not follow the so-called official stance on Covid, its source and its treatment.

Leave it to the New York Times to try to put a liberal spin on the decision. Despite the fact the decision upheld the preliminary injunction issued by the lower court, the NYT said this “was another twist in a First Amendment case that has challenged the government’s ability to combat false and misleading narratives about the pandemic, voting rights and other issues that spread on social media.” It’s irreprehensible for The Grey Lady to do anything but campaigning for the First Amendment.

Conversely, the opening paragraph of the Washington Post’s coverage of the decision reveals just how serious the situation is:

The U.S. Court of Appeals for the 5th Circuit on Friday ruled that the Biden White House, top government health officials and the FBI likely violated the First Amendment by improperly influencing tech companies’ decisions to remove or suppress posts on covid-19 and elections.

Read that again.

“The White House, top government health officials and the FBI. . . .”

And, as you read the opinion, you will see this goes beyond the issue of social media platforms removing posts about Covid. It goes to the way those platforms operated concerning the last election as well.

So much for “land of the free”, at least as long as the current Commander-in-Chief still sits in the Oval Office.

The height or irony in the decision occurs when the Court notes the government cited the First Amendment to justify their actions regarding the social media platforms. They were only “asking or trying to persuade the platforms to act—[and that] was permissible government speech.” Fortunately, the Court didn’t buy that argument.

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.

. . . 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.

It is uncontested that, between the White House and the Surgeon General’s office, government officials asked the platforms to remove undesirable posts and users from their platforms, sent follow-up messages of condemnation when they did not, and publicly called on the platforms to act. When the officials’ demands were not met, the platforms received promises of legal regime changes, enforcement actions, and other unspoken threats.

It is the threat of “legal regime changes, enforcement actions, and other unspoken threats” that should worry all of us. As noted in the following video clip discussing the lower court ruling (around the 1:40 mark), such comments go too far.

The 5th Circuit obviously agreed, as noted by Eric Schmitt:

https://twitter.com/Eric_Schmitt/status/1700284225063100850?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1700284225063100850%7Ctwgr%5E5636e7417c485e0d1a7d49fe4efcbc085aaff8af%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Flegalinsurrection.com%2F2023%2F09%2Fappeals-court-upholds-injunction-against-biden-admin-collusion-and-coercion-of-big-tech-censorship-of-political-opponents%2F

There is so much packed into the opinion, too much to be covered in a single post. It not only deals with the actions taken regarding posts about Covid but also about the 2020 election. It leaves no doubt this court, as with the lower court, feels certain government agencies, departments and employees went too far to protect the party line. However, it did limit the scope of who the ruling applied to–so not a complete win.

The ball is in the Administration’s court. It can appeal the decision to the Supreme Court–which is what I expect will happen. After all, when have Biden or anyone in the Administration admitted they took actions that actually harmed the country or violated our Constitutional Rights? So far, this is the closest the Administration’s come to responding to the ruling:

This Administration has promoted responsible actions to protect public health, safety, and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections. . . Our consistent view remains that social media platforms have a critical responsibility to take account of the effects their platforms are having on the American people, but make independent choices about the information they present.”

But how “independent” can those choices be when there are government officials breathing down their necks, demanding they take action and threatening dire consequences if they fail to do so?

If the Biden Administration doesn’t appeal, the ruling takes effect in 10 days. Here’s hoping Biden et al realize just how badly they screwed up and step back and do nothing. If not, let us hope the Supreme Court refuses to take the case. It is time for those in power to remember the bedrock of our government–the Constitution, specifically the Bill of Rights–and finally accept it isn’t something they can discard at their whim.

Featured image created by Amanda S. Green using Midjourney AI.