XPost: alt.politics.usa.constitution, alt.politics.republicans,    
   alk.politics.guns   
   XPost: sac.politics   
   From: yourdime@outlook.com   
      
   A federal appeals court on Friday upheld key parts of a preliminary   
   injunction against federal interference with content moderation on social   
   media platforms. A three-judge panel of the U.S. Court of Appeals for the   
   5th Circuit unanimously agreed that the White House, Surgeon General Vivek   
   Murthy, the Centers for Disease Control and Prevention (CDC), and the FBI   
   had "coerced" or "significantly encouraged" the platforms, "in violation   
   of the First Amendment," to suppress speech that federal officials viewed   
   as dangerously inaccurate or misleading. But the 5th Circuit also said the   
   injunction that U.S. District Judge Terry Doughty issued in July was   
   excessively broad and covered too many agencies.   
      
   During the last few years, the 5th Circuit notes in a per curiam opinion   
   joined by Judges Edith Brown Clement, Jennifer Walker Elrod, and Don   
   Willett, "a group of federal officials has been in regular contact with   
   nearly every major American social-media company about the spread of   
   'misinformation' on their platforms. In their concern, those   
   officials—hailing from the White House, the CDC, the FBI, and a few other   
   agencies—urged the platforms to remove disfavored content and accounts   
   from their sites."   
      
   In response, the appeals court says, "the platforms seemingly complied.   
   They gave the officials access to an expedited reporting system,   
   downgraded or removed flagged posts, and deplatformed users. The platforms   
   also changed their internal policies to capture more flagged content and   
   sent steady reports on their moderation activities to the officials. That   
   went on through the COVID-19 pandemic [and] the 2022 congressional   
   election, and continues to this day."   
      
   The plaintiffs in this case, Missouri v. Biden, include five social media   
   users, along with the states of Missouri and Louisiana. They argued that   
   the Biden administration's public and private pressure on platforms such   
   as Facebook, Twitter, and YouTube amounted to government-directed   
   censorship. The 5th Circuit essentially agreed, endorsing much of   
   Doughty's analysis. According to the appeals court, the  administration's   
   persistent demands that Facebook et al. do more to control   
   "misinformation"—which were coupled with implicit threats of punishment   
   through heavier regulation, antitrust action, and increased civil   
   liability for user-posted content—crossed the line between permissible   
   government speech and impermissible intrusion on private decisions.   
      
   The 5th Circuit's opinion emphasizes both the tone and the volume of the   
   government's requests. Although the administration claimed it was doing   
   nothing more than urging the platforms to enforce their own rules, its   
   "asks" frequently went further than that.   
      
   Publicly, President Joe Biden accused the platforms of "killing people" by   
   failing to suppress speech that discouraged vaccination against COVID-19.   
   Murthy likewise said that failure was "costing people their lives." White   
   House Press Secretary Jen Psaki declared that social media companies "have   
   a responsibility related to the health and safety of all Americans to stop   
   amplifying untrustworthy content, disinformation, and misinformation,   
   especially related to COVID-19, vaccinations, and elections." If they   
   failed to meet that responsibility, Murthy said, "legal and regulatory   
   measures" might be necessary. Psaki floated the possibility of new privacy   
   regulations and threatened social media companies with "a robust anti-   
   trust program." White House Communications Director Kate Bedingfield said   
   the platforms "should be held accountable," which she suggested could   
   include reducing their legal protection against civil claims based on   
   users' posts.   
      
   Privately, administration officials pressed Facebook et al. to delete or   
   downgrade specific posts and banish specific speakers, to take action   
   against content even when it did not violate the platforms' rules, and to   
   expand those rules so that any speech federal officials viewed as   
   dangerous to public health could be deemed a violation. Their "requests"   
   were sometimes phrased as demands.   
      
   As the 5th Circuit notes, Clarke Humphrey, digital director for the COVID-   
   19 Response Team, told Twitter to remove an anti-vaccine post by Robert F.   
   Kennedy Jr. "ASAP" and "instructed it to 'keep an eye out for tweets that   
   fall in this same…genre' so that they could be removed, too." On another   
   occasion, Deputy Assistant to the President Rob Flaherty, director of   
   digital strategy at the White House, told Twitter to delete a parody   
   account tied to one of Biden's grandchildren "immediately," saying he   
   could not "stress [enough] the degree to which this needs to be resolved   
   immediately."   
      
   Flaherty emphasized that he was acting on the president's behalf, that his   
   concerns were "shared at the highest (and I mean highest) levels of the   
   [White House]." White House officials invoked previous perceived failures   
   at content moderation, which they said had been disastrous. "When Facebook   
   did not take a prominent pundit's 'popular post[]' down," the 5th Circuit   
   notes, senior White House COVID-19 adviser Andrew Slavitt "asked 'what   
   good is' the reporting system, and signed off with 'last time we did this   
   dance, it ended in an insurrection.'" In another exchange, Flaherty   
   "demand[ed] 'assurances' that [Facebook] was taking action" and "likened   
   the platform's alleged inaction to the 2020 election, which it 'helped   
   increase skepticism in,'" adding that "an insurrection…was plotted, in   
   large part, on your platform.'"   
      
   When social media companies failed to do what the administration wanted,   
   White House officials reacted angrily. Flaherty noted that a flagged   
   Facebook post was "still up," asking, "How does something like that   
   happen?" Facebook was "hiding the ball," Flaherty complained. "Are you   
   guys fucking serious?" he said in another email to Facebook. "I want an   
   answer on what happened here and I want it today." Because Facebook was   
   "not trying to solve the problem," Slavitt said, the White House was   
   "considering our options on what to do about it."   
      
   Flaherty, the 5th Circuit notes, "demanded more details and data on   
   Facebook's internal policies at least twelve times," asking "what was   
   being done to curtail 'dubious' or 'sensational' content, what   
   'interventions' were being taken, what 'measurable impact' the platforms'   
   moderation policies had, 'how much content [was] being demoted,' and what   
   'misinformation' was not being downgraded." He "lamented that flagging did   
   not 'historically mean…that [a post] was removed.'" Flaherty told Facebook   
   he had "been asking…pretty directly, over a series of conversations…what   
      
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