In a landmark ruling that vindicates long-standing concerns from civil libertarians, the U.S. Court of Appeals for the Fifth Circuit has affirmed what many have suspected since the COVID-19 pandemic began: the federal government engaged in unconstitutional censorship by coercing social media companies to suppress dissenting viewpoints.

The case, State of Missouri v. Biden, No. 23-30445, centers around allegations that officials from the White House, CDC, FBI, and other federal agencies pressured Big Tech platforms to deplatform or downgrade content deemed “misinformation.” The plaintiffs—a group of doctors, a healthcare activist, a news website, and two state governments—argued this constituted a direct violation of their First Amendment rights.

🚫 The “Misinformation” Excuse: Government Overreach in Disguise

The government’s defense? That they were merely “flagging” harmful content and encouraging platforms to enforce their own policies. But the Fifth Circuit wasn’t buying it. The court found ample evidence of coercive pressure, concluding that the White House and several agencies “likely violated the First Amendment” by effectively strong-arming private companies into doing what the government is constitutionally prohibited from doing: suppressing speech.

This isn’t government speech. It’s government-sponsored censorship—and it’s chilling.

💥 Who Got Rebuked—and Who Got a Pass?

In its modified injunction, the Fifth Circuit drew clear lines:

• Held Liable:
  • White House
  • Surgeon General
  • Centers for Disease Control (CDC)
  • Federal Bureau of Investigation (FBI)
  • Cybersecurity and Infrastructure Security Agency (CISA)
• Not Held Liable:
  • National Institute of Allergy and Infectious Diseases (NIAID)
  • State Department

For the NIAID, led by Dr. Anthony Fauci, the court found no direct communications with tech companies, only public statements promoting the government’s views. While disingenuous or biased, such statements fell within the realm of protected government speech—not coercive action.

🧠 Why This Case Matters: The Slippery Slope to Technocratic Tyranny

This ruling cuts to the heart of what libertarians have long warned about: the merging of state power with corporate compliance to control narratives and restrict freedom. When unelected bureaucrats can lean on tech platforms to silence dissenting voices—particularly in areas of science, health policy, and public discourse—constitutional protections become nothing more than parchment barriers.

The court’s decision marks a major pushback against the rise of the “censorship-industrial complex.” And it’s not just about COVID. This precedent lays the groundwork for future cases involving elections, climate policy, and any area where dissent threatens the political establishment.

⚖️ The Fight Isn’t Over

While the injunction was narrowed, it still blocks key federal officials from continuing their censorship-by-proxy operations. And it sets up a likely showdown at the Supreme Court, where the limits of government speech and coercion in the digital age will be tested.

For now, the Fifth Circuit has sent a clear message: the First Amendment is not optional, and the federal government cannot outsource censorship to private companies to avoid constitutional scrutiny.

State of Missouri v. Biden, No. 23-30445 (5th Cir. 2023)

Annotate this Case

Justia Opinion Summary

The Plaintiffs—three doctors, a news website, a healthcare activist, and two states —had posts and stories removed or downgraded by the platforms. Their content touched on a host of divisive topics like the COVID-19 lab-leak theory. Plaintiffs maintain that although the platforms stifled their speech, the government officials were the ones pulling the strings. They sued the officials for First Amendment violations and asked the district court to enjoin the officials’ conduct. The officials argued that they only “sought to mitigate the hazards of online misinformation” by “calling attention to content” that violated the “platforms’ policies,” a form of permissible government speech. The district court agreed with the Plaintiffs and granted preliminary injunctive relief.
 
The Fifth Circuit granted the petition for panel rehearing and affirmed in part, reversed in part, vacated the injunction in part, and modified the injunction in part. The court affirmed with respect to the White House, the Surgeon General, the CDC, the FBI, and CISA and reversed as to all other officials. As to the NIAID officials, it is not apparent that they ever communicated with the social media platforms. Instead, the record shows, at most, that public statements by Director Anthony Fauci and other NIAID officials promoted the government’s scientific and policy views and attempted to discredit opposing ones—quintessential examples of government speech that do not run afoul of the First Amendment. Further, as for the State Department, while it did communicate directly with the platforms, so far, there is no evidence these communications went beyond educating the platforms on “tools and techniques” used by foreign actors.

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State of Missouri v. Biden, No. 23-30445 (5th Cir. 2023) Annotate this Case Justia Opinion Summary The Plaintiffs—three doctors, a news website, a healthcare activist, and two states —had posts and stories removed or downgraded by the platforms. Their content touched on a host of divisive topics like the COVID-19 lab-leak theory. Plaintiffs maintain that although the platforms stifled their speech, the government officials were the ones pulling the strings. They sued the officials for First Amendment violations and asked the district court to enjoin the officials’ conduct. The officials argued that they only “sought to mitigate the hazards of online misinformation” by “calling attention to content” that violated the “platforms’ policies,” a form of permissible government speech. The district court agreed with the Plaintiffs and granted preliminary injunctive relief. The Fifth Circuit granted the petition for panel rehearing and affirmed in part, reversed in part, vacated the injunction in part, and modified the injunction in part. The court affirmed with respect to the White House, the Surgeon General, the CDC, the FBI, and CISA and reversed as to all other officials. As to the NIAID officials, it is not apparent that they ever communicated with the social media platforms. Instead, the record shows, at most, that public statements by Director Anthony Fauci and other NIAID officials promoted the government’s scientific and policy views and attempted to discredit opposing ones—quintessential examples of government speech that do not run afoul of the First Amendment. Further, as for the State Department, while it did communicate directly with the platforms, so far, there is no evidence these communications went beyond educating the platforms on “tools and techniques” used by foreign actors.

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