Here’s some news that likely won’t come as much of a surprise to anyone who has been paying the slightest attention to current events pretty much since the beginning of the pandemic. Earlier this year, the states of Missouri and Louisiana went to court claiming that the Biden administration had colluded with the Big Tech social media platforms to censor the free speech of individuals regarding the government’s COVID response. In July, US District Judge Terry Doughty agreed, issuing a sweeping order barring officials from the CDC, the National Institute of Allergy and Infectious Disease, the Justice Department, and the State Department from having contact with the platforms. The White House appealed, but now a three-judge panel from the Fifth Circuit has upheld some of the order, though not all of it. (NY Post)

The Biden administration likely infringed upon the First Amendment when it leaned on social media companies to remove false or misleading COVID-19 content, a federal court of appeals ruled Friday — narrowing a bombshell district court order that barred several officials and agencies from communicating with the platforms.

The White House, surgeon general, Centers for Disease Control and Prevention and the FBI “likely coerced or significantly encouraged social-media platforms to moderate content” and in doing so, “likely violated the First Amendment,” the New Orleans-based Fifth US Circuit Court of Appeals determined.

The Fifth Circuit remains one of the more conservative benches in the country, so this decision wasn’t completely unexpected. But the panel did trim down Doughty’s order quite a bit. They removed officials from the National Institute of Allergy and Infectious Disease, the Cybersecurity and Infrastructure Security Agency and the State Department from the injunction. The reason given was that parts of Doughty’s original order were “vague and broader than necessary.”

It’s also important to remember that this isn’t the end of the process and the Biden administration hasn’t technically been found guilty of violating the First Amendment yet. All that’s been determined by this panel is that the case can proceed because the plaintiffs stand a reasonable chance of prevailing.

But the final complaint will be significantly slimmer than what the plaintiffs had originally requested and what Doughty had ordered. Not only will the order apply to fewer people, but nine of the ten original provisions regarding government contact with the Big Tech platforms have been vacated as not being true First Amendment violations. The courts are unwilling to say that the government cannot engage in “urging, encouraging, pressuring or inducing” the platforms to remove content. The government is only crossing the line when it comes to “coercion or significant encouragement.”

This sounds like an impossible standard to enforce and I hope the Supreme Court sees it differently. (They will receive the request to review the case next.) For example, how is anyone in a court of law supposed to determine when one of Biden’s people is “encouraging” Facebook to take down someone’s post as opposed to “significantly encouraging” them to do so? And what would constitute “coercion” in a situation like that? The legal definition of coercion is, “any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person.”

That brings us down to the definition of “harm,” which is about as solid as a mirage. Not even the FBI’s leadership would be stupid enough to threaten someone at Twitter by saying that if they don’t take down a particular tweet the Bureau will be sending someone over to break their arms. But they could start “mentioning” some movement in Congress that might institute expensive changes to the Communications Decency Act if the offending content isn’t removed. Would that be “harm?”

I still maintain that a much broader ruling is required here. For the most part, the vast majority of the government at all levels should never be contacting the social media platforms about any specific content on their sites for any reason. The only exceptions would be law enforcement responding to reports of actual crimes such as child pornography or credible threats of violence to persons or property. And honestly, the platforms should already be taking those sorts of posts down and reporting the users to law enforcement without being told to do so. But what was going on during the pandemic (and is still no doubt going on today) was very different. Too many in the government are colluding with willing partners across the social media landscape to eliminate wrongthink. We’ve seen it across the ages, ranging from Pol Pot to Maximilien Robespierre. It never ends well.