Federal appeals court expands limits on Biden administration in First Amendment case

The nation’s top cybersecurity defense agency likely violated the First Amendment when lobbying Silicon Valley companies to remove or suppress the spread of online content about elections, a federal appeals court ruled Tuesday.

The 5th Circuit Court of Appeals expanded an injunction issued in September to include the Cybersecurity and Infrastructure Security Agency, ruling that it used frequent interactions with social media platforms “to push them to adopt more restrictive policies on election-related speech.”

The previous decision from a panel of three judges – nominated by Republican presidents – concluded that the actions of the Biden White House, FBI and other government agencies likely violated the First Amendment but that CISA – which is charged with securing elections from online threats – attempted to convince, not coerce.

Republican attorneys general, who brought the case, asked for a rehearing. In Tuesday’s order, the 5th Circuit judges ruled that CISA facilitated the FBI’s interactions with social media companies. 

The order bars CISA and top agency officials including director Jen Easterly from taking steps to “coerce or significantly encourage” tech companies to take down or curtail the spread of social media posts.

The Justice Department declined to comment. CISA, which is part of the Department of Homeland Security, said it does not comment on ongoing litigation, but executive director Brandon Wales said in a statement that the agency does not censor speech or facilitate censorship.

The lawsuit was filed by the attorneys general of Missouri and Louisiana as well as individuals who said their speech was censored.

“CISA is the ‘nerve center’ of the vast censorship enterprise, the very entity that worked with the FBI to silence the Hunter Biden laptop story,” Missouri Attorney General Andrew Bailey tweeted. 

Born of conservative frustration with social media moderation practices, the lawsuit is one of a growing number that accuse government officials of colluding with platforms to favor Democrats and the Biden administration. 

The ruling queues the case up for the Supreme Court, adding yet another high-profile and controversial social media case to the court’s docket. The Biden administration had already filed an emergency appeal in the case, but that effort was suspended when the 5th Circuit agreed to rehear the matter.

“We look forward to defending your First Amendment rights at the nation’s highest court,” Bailey tweeted.

The appeals court stayed the effects of its ruling for 10 days, which will give the Biden administration time to update their request to the Supreme Court.

The high court will hear arguments later this month in a pair of challenges dealing with whether public officials may block constituents on social media.

Separately, the justices agreed last week to decide two suits challenging laws in Texas and Florida that would limit the ability of platforms like Facebook, YouTube and X to moderate content. The state laws at issue in the cases, both of which have been temporarily blocked by federal courts, severely limit the ability of social media companies to kick users off their platforms or remove individual posts.