BREAKING: 5th Circuit Upholds Injunction Against Government Censorship

We got a big win on Friday in Missouri v. Biden: Appellate Court Forbids White House, CDC, Surgeon General, and FBI from Censoring Americans Online

Here’s my five-minute summary and reaction to the appellate court’s decision on Friday upholding the central provisions in our injunction against the government. (I’ll post the full interview soon when it’s available.)

The unanimous three-judge panel ruled: “The White House, the Surgeon General, the CDC, and the FBI likely coerced or significantly encouraged social-media platforms to moderate content, rendering those decisions state actions. In doing so, the officials likely violated the First Amendment.” The appeals court thereby confirmed that for last several years, our Federal government has been systematically violating the highest law of the land—the United States Constitution—by censoring the protected speech of hundreds of thousands of ordinary Americans tens of millions of times. News of the ruling was front page above-the-fold yesterday in The New York Times and The Washington Post, suggesting that the legacy media cannot ignore this issue any longer.

Not all the defendants in the suit were enjoined by the appellate court’s decision, which focused on the White House, the Surgeon General, the CDC, and the FBI. This is not, however, an indication that the other agencies named as defendants, such as CISA, are free to engage in censorship of protected speech. It simply means that at this early stage of limited discovery the appellate court did not think we have presented sufficient evidence to meet the very high legal bar required for a preliminary injunction. Although the injunction focuses on four agencies, the entire federal government is now on notice: any future communications between government officials and big tech are subject to subpoena and scrutiny in our case. If those come from any of the four enjoined agencies, those officials may now be subject not only to civil liabilities but to criminal penalties as well.

The ruling also confirmed that not only coercion but even “significant encouragement” by government officials to modify content is a form of unconstitutional censorship. The judges ruled that evidence we presented demonstrated both coercion and significant encouragement.

Contextualizing the scope of the violations of constitutional rights in our case, the judges noted that there are virtually no prior free speech cases of this scope and magnitude: “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—’unrelenting pressure’ from certain government officials likely ‘had the intended result of suppressing millions of protected free speech postings by American citizens.’ We see no error or abuse of discretion in that finding.”

The Twitter Files journalists, who have done so much to bring attention to this issue, reached out to congratulate us yesterday. Bari Weiss Tweeted, “Congratulations (and gratitude), especially to @DrJBhattacharya, @AaronKheriatyMD, and, @MartinKulldorff. Very important victory for speech.” Matt Taibbi said, “Congratulations to everyone involved with this case, which means so much to so many. @AaronKheriatyMD @DrJBhattacharya.” I happened to be at a meeting with Andrew Lowenthal, another Twitter files journalist who has worked with both Taibbi and Michael Shellenberger, and it was a joy to share the victory with him in person. Andrew has carefully mapped the anatomy of the Censorship Industrial Complex

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