NonilexSep 9, 2023

The U.S. #Court of #Appeals for the #5thCircuit on Fri ruled that the #Biden #WhiteHouse, top govt #health ofcls & the #FBI likely violated the #FirstAmendment by improperly #influencing #tech companies’ decisions to remove or suppress posts on the #coronavirus & #elections.

https://www.washingtonpost.com/technology/2023/09/08/5th-circuit-ruling-covid-content-moderation/

5th Circuit finds Biden White House, CDC likely violated First Amendment

The judges wrote that the White House, the Surgeon General, the CDC and the FBI likely “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences.”

The Washington Post
Show threadNonilexSep 9, 2023
The decision was likely to be seen as victory for #conservatives who’ve long argued that #SocialMedia platforms’ #content #moderation efforts restrict their #FreeSpeech rights. But some advocates also said the ruling was an improvement over a temporary #injunction US Dist Judge Terry #Doughty issued July 4.

David Greene, an atty w/the ElectronicFrontier Foundation, said the new injunction was “a thousand times better” than what Doughty, an appointee of #Trump, had ordered originally.
Show threadNonilexSep 9, 2023
Doughty’s decision had affected a wide range of govt departments & agencies, & imposed 10 specific #prohibitions on govt ofcls. The appeals court threw out 9 of those & modified the 10th to limit it to efforts 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.”
Show threadNonilexSep 9, 2023
The #5thCircuit panel also limited the govt institutions affected by its #ruling to the WH, the #SurgeonGeneral’s office, the #CDC & the #FBI. It removed restrictions #Doughty had imposed on the depts of #State, #DHS & #HHS & on agencies including the U.S. #Census Bureau, #NIAID, & #CISA. The #5thCircuit found that those agencies had NOT coerced the #SocialMedia companies to #moderate their sites.
Show threadNonilexSep 9, 2023

The judges wrote that the WH likely “#coerced the platforms to make their #moderation decisions by way of intimidating messages & threats of adverse #consequences.” They also found the #WhiteHouse “significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the #FirstAmendment.”

A WH spox said in a statement that the #DOJ was “reviewing” the decision and evaluating its options.

Show threadNonilexSep 9, 2023
“This Administration has promoted #responsible actions to protect #PublicHealth, #safety, & #security when confronted by challenges like a deadly #pandemic & foreign #attacks on our #elections,” the WH ofcl said. “Our consistent view remains that #SocialMedia 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.”
Show threadNonilexSep 9, 2023
The decision is likely to have a wide-ranging impact on how the #FederalGovernment communicates w/the #public & the #SocialMedia companies about key #PublicHealth issues & the #2024elections.

The case is the most successful salvo to date in a growing #conservative #legal & #political effort to limit coordination between the federal govt & #tech platforms.
Show threadNonilex
This case & recent probes in the #Republican-controlled #House of Representatives have accused govt ofcls of actively #colluding w/platforms to #influence public #discourse, in an evolution of long-running #allegations that #liberal employees inside #tech companies favor #Democrats when making decisions about what posts are removed or limited online.
Sep 9, 2023 at 4:49pmWeb
Show threadNonilexSep 9, 2023

The appeals court judges found that pressure from the #WhiteHouse & the #CDC affected how #SocialMedia platforms handled posts about #covid-19 in 2021, as the #Biden admin sought to encourage the public to obtain #vaccinations.

The judges detail multiple emails & statements from WH ofcls that they say show escalating threats & pressure on the social media companies to address covid #misinformation.…

Show threadNonilexSep 9, 2023
The judges also zeroed in on the #FBI’s communications w/#tech platforms in the run-up to the #2020elections, which included regular meetings w/the tech companies. The judges wrote that the FBI’s activities were “not limited to purely foreign threats,” citing instances where the #law enforcement agency “targeted” posts that originated inside the #UnitedStates, including some that stated incorrect poll hours or mail-in voting procedures.
Show threadNonilexSep 9, 2023
The judges said in their rulings that the platforms changed their policies based on the #FBI briefings, citing updates to their terms of service about handling of #hacked materials, following warnings of #StateSponsored “hack & dump” ops.
Show threadNonilexSep 9, 2023
The judges, however, found some of the govt communications enjoined by the district court to be permissible, including those of fmr chief medical adviser to the president, Anthony #Fauci. They said the record did NOT show that Fauci communicated directly w/ the platforms & said his efforts to promote the govt’s #scientific & &policy views did NOT “run afoul of the #FirstAmendment.”
Show threadNonilexSep 9, 2023
They also found that the lower court erred in barring #CISA’s interactions w/the companies, finding that its efforts to flag #content to the platforms did NOT amount to “attempts to coerce” the companies’ #moderation decisions.

#ChrisKrebs, the CISA chief fired by #Trump over his endorsement of the #2020election result, said he found the ruling “reassuring.”

“This ruling eviscerated the district court decision,” #Krebs said.
Show threadNonilexSep 9, 2023

The judges also said there was NO evidence that the #StateDepartment’s communications w/the platforms “went beyond educating the platforms on ‘tools & techniques’ used by foreign actors.”

The #DOJ did not immediately respond to requests for comment, & it was not immediately clear if it would #appeal the ruling. The order will take effect in 10 days, unless the government seeks intervention from #SCOTUS.

Show threadNonilexSep 9, 2023

The #DOJ had argued that #Doughty’s ruling was overly broad & could “chill” a wide range of lawful communications between the govt & #SocialMedia companies, especially in the face of #public #emergencies.…

Any #appeal of the order would bring the debate over #online #speech before #SCOTUS, which is already expected to take up conflicting appeals court rulings over state social media #laws this year.

Show threadNonilexSep 9, 2023
The #5thCircuit ruling reversed #Doughty’s order specifically enjoining the actions of leaders at #DHS, #HHS & other agencies, saying many of those individuals “were permissibly exercising government speech.”

“That distinction is important because the state-action doctrine is vitally important to our Nation’s operation — by distinguishing between the state & the People, it promotes ‘a robust sphere of individual liberty,’” the 5th Circuit judges wrote.
Show threadNonilexSep 9, 2023

…Stanford Law School prof Daphne Keller said the #5thCircuit’s ruling appeared to allow “a lot of normal communications as long as they are not threatening or taking over control of platforms’ #content decisions.”

“But it also says they can’t 'significantly encourage’ platforms to remove lawful content, so the real question is what that means,” she said.

#law #tech #SocialMedia #Ethics #CivicResponsibility #PublicHealth #Disinformation #misinformation #MediaLiteracy