Quantitative Easing is the equivalent of the bartender watering booze

Back on August 10, in New Orleans, the 5th Circuit Court of Appeals met to hear oral arguments in Missouri v. Biden, the landmark Internet censorship case that at the time appeared on a certain collision course with the Supreme Court. From what I saw in court, the hearing seemed to play out disastrously for the federal government, with appellate judges comparing the Biden White House to the mafia.

The issue was Judge Terry Doughty’s sweeping July 4th injunction barring social media censorship. Doughty saw an emergency, what he called “arguably… the most massive attack against free speech in United States’ history,” and took a big advance bite out of the power of government agencies and partnerships to meddle with Internet platforms. The appeals court was charged with deciding exactly how many of Doughty’s teeth to leave in the defendants’ hind parts.

On Friday, almost exactly a month later, the appellate judges handed down their decision. On the surface it’s a huge win for the plaintiffs, especially on the broad-brush question of whether or not the First Amendment is being violated on a mass scale by the executive branch. But further down in the ruling, there were disurbing passages for the same plaintiffs.

One of the money passages early on:

We find that the White House, acting in concert with the Surgeon General’s office, likely (1) coerced the 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.

This passage is important because it validates the core theory of the case brought by the Attorneys General of Missouri and Louisiana: that the executive branch is coercing tech platforms into censorship decisions using the implied threat of regulatory consequences.

The judges were not subtle on this point. In describing White House conduct they brought up a notorious First Amendment case, Bantam Books, Inc. v. Sullivan, in which the Rhode Island Commission to Encourage Morality sent “a letter to a book distributor with a list of verboten books and requested that they be taken off the shelves.” As in that case, judges said, Biden White House calls to firms like Facebook demanding action “ASAP” on certain accounts were “phrased virtually as orders.”

Moreover appellate judges were sufficiently concerned that they upheld the standard required to declare an injunction pending resolution of the case. Not only does that mean they believe plaintiffs are “likely to succeed on the merits,” but that they’ve “demonstrated ongoing harm from past social-media censorship and a likelihood of future censorship.”

That four federal judges have essentially assessed the evidence in the same way is an ominous sign for defendants, above whom sits a Supreme Court probably leaning in a similar direction. One such defendant is the FBI, also slapped hard, with judges saying the Bureau was guilty of the same violations as the White House, writing, “the FBI… urged the platforms to take down content” and “we find that those requests were coercive.”

This decision dances on the government’s prior argument that the Doughty ruling caused the government and its partner defendants “irreparable harm” by preventing them from “speaking on matters of public concern” and “working with social media companies on initiatives to prevent grave harm to the American people and our democratic processes.” Judges didn’t buy the idea that White House emails saying things like “keep an eye out for tweets that fall in this same… genre” and instructing a platform to “remove [an] account immediately” constituted “working with social media.” They called it coercion and saw irreparable harm traveling the other way.