Founder
A seminal First Amendment decision was just issued by the Fifth Circuit Court of Appeals. In Missouri v. Biden, the Plaintiffs alleged that federal officials violated the First Amendment by coercing social media platforms to censor disfavored speech. The federal district court of Louisiana agreed, and the Fifth Circuit partially affirmed. The Fifth Circuit noted that on the one hand there is government persuasion to private entities, and on the other there is government coercion and significant encouragement—two distinct means of satisfying the close nexus test. Of course, persuasion is acceptable while coercion and encouragement verboten. After a lengthy analysis of the close nexus test, the Fifth Circuit found that the White House, along with the Surgeon General, (1) coerced social media 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. To wit: officials threw out the prospect of legal reforms and enforcement actions while subtly insinuating it would be in the platforms’ best interests to comply. When the officials’ demands were not met, the platforms received promises of legal regime changes, enforcement actions, and other unspoken threats. The Fifth Circuit lamented, “we do not take our decision today lightly. But, 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.”