Fifth Circuit Enjoins Biden Administration Censorship Program in Major Victory for Free Speech

The U.S. Court of Appeals for the Fifth Circuit has issued a major ruling on a preliminary injunction to stop the censorship efforts of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA). In order to issue the opinion on Tuesday, the Fifth Circuit found that challengers were substantially likely to prevail on the merits.

I previously testified on the CISA censorship program and argued that it violated free speech principles. I also testified that the program could constitute a First Amendment violation.

Jen Easterly, who heads the Cybersecurity and Infrastructure Security Agency, extended her agency’s mandate over critical infrastructure to include “our cognitive infrastructure.” The resulting censorship efforts included combating “malinformation” – described as information “based on fact, but used out of context to mislead, harm, or manipulate.”

Easterly is now barred from taking any action to “coerce or significantly encourage” tech companies to remove or reduce the spread of posts. The Supreme Court may now have an opportunity to weigh in after the Justice Department appealed the injunction.

The 5th Circuit panel — Judges Edith Brown Clement, Don R. Willett and Jennifer Walker Elrod — found “significant evidence” that CISA ran afoul of the First Amendment in coordinating with the FBI.

The panel found that (1) they were likely to succeed on the merits, (2) there is a “substantial threat” they will suffer an “irreparable injury” otherwise, (3) the potential injury “outweigh[ed] any harm that will result” to the other side, and (4) an injunction will not “disserve the public interest.”

The panel declared:

“It is true that the officials have an interest in engaging with social media companies, including on issues such as misinformation and election interference. But the government is not permitted to advance these interests to the extent that it engages in viewpoint suppression.”

Here is the Fifth Circuit opinion: Missouri v. Biden

58 thoughts on “Fifth Circuit Enjoins Biden Administration Censorship Program in Major Victory for Free Speech”

  1. Yet the damage is done.
    They don’t need to tell the libtarded workers who or what to censor anymore.
    As long as they (Government) do not communicate, the companies can still censor and plead mea culpa.

    The House needs to impeach, not just on the high crimes, but the intentional censoring of Americans.


  2. Great questions for our time that remain unanswered due to government-media censorship:

    1. Who blew up the Nord Stream pipeline?

    2. Who hid the blow in the White House?

    3. What were the real origins of COVID?

    4. Who leaked the Dobbs decision?

    5. What is in the Nashville Christian school shooter’s manifesto?

    1. @Epsteindidn’tkillhimself

      Those are great questions. Alas, a great many people aren’t even aware those things transpired. Just visited my brother. He’s someone that thinks everyone who has ever attended church is a white nationalist and refers to them as such (attempts to explain things like historically black churches fall on deaf ears), and though he feels the pinch and sees the social decay, in his mind it is naturally all the result of residual damage Trump did when he was in office, or regarding covid, the natural result of a sane response. He is the average, lowfow voter in America. He honestly doesn’t believe, since he owns his property and has money in the bank, that any of it has any bearing on his autonomy even though what is under threat is the very thing that enables the freedom of his misguided declarations. It’s tough. 

      1. Owns his property??? Tell him to not pay the King his tribute for 3 years and see what he “owns”.

    1. Watched the video but black are only 15%. We need em…Mexicans. et al. Too. None of which matters …. if die bold…old dominiom all overseas companies gets to use data with the latest…who no one can mention. Without getting their pants sued off. Maybe Georgia should stop their “residency” mills…for ex cons….to get a dl to get back to work….. t hat would solve one voter interity problem.

  3. A prior restraint on speech is rare, but the Fifth Circuit panel issued it, modifying the district court’s mandate as follows:

    Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or
    supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.

    (Page 70 of the opinion linked above by the professor)

    Here is a writeup by a libertarian magazine:,federal%20officials%20viewed%20as%20dangerously%20inaccurate%20or%20misleading.

  4. If these government agencies want to communicate using these various internet platforms, they should be allowed to. But this allowance should be limited to outward commentary; that is, commentary directed to the users of the platforms. Their commentary should not be magnified nor throttled at all, just like any other user of these platforms. In other words: An equal playing field.

    The reason for the government creatures not being given any special privilege is because of their propensity to lie and to fabricate their opinions to the detriment of the public.

    1. ” Their commentary should not be magnified nor throttled at all, just like any other user of these platforms. ”
      LOL Make a wish, dream a dream. Remember they are the biggest criminals and liars of the entire world.

    2. Good start.  But, should Government Officials be not only allowed to push out deceptive infowarfare, but not have such perfidy be challengeable legally?

      This gets to the question of how far the 1st Amendment goes in protecting government’s ability to dupe the public.   If the only means to challenge it legally is to hold electable officers accountable at the next election — or the extreme of impeachment — that allows official lies to “have legs” for so long that they may succeed well in achieving their objective.

      Ask, 100 Americans if government officials and candidates for office should have free reign to dupe the public to advance a political or policy goal (i.e., deploy psyOps on the citizenry), 100 are going say “no”, but possibly disagree on the best means to deter it, or not have an idea how to do this.

      Clearly government can have no prosecutorial role countering offical psyOps. 

      But what about citizens using civil torts?  What if government officials or candidates/campaigns could be sued for Public Frauds?  This could be an immediate response to the launching of an inforwarfare campaign meant to misdirect the public.   The only role for government would be the judicial branch provides a courtroom and a judge, and enforce judgements when a jury of 12 votes unanimously to impose one.  This makes a jury the finder-of-fact exposed to an adversarial process with strict rules of evidence, aided by the power of subpoena.

      I think Public Frauds torts is the best option for keeping candidates and officials honest, because lies can be challenged fast with a legal counter-process, and cover-ups can be penetrated using subpoena.

  5. It is a constant battle to make the legislative and executive branches understand the immutable dominion of the rights, freedoms, privileges and immunities of individual Americans. Whatever the legislative and executive branches conjure must be subordinate to the dominion of individual rights.

    The natural and God-given rights and freedoms revealed by the Constitution and Bill of Rights existed before government was conceived. The Constitution provides maximal freedom to individuals while it severely limits and restricts government. 1st Amendment – Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    1. “before government was conceived”….the rule of the jungle was the way conflicts were solved.  Since there is always someone bigger and meaner than you are, there was little security, only luck and misfortune.   I wouldn’t agree that people living under the rule of the jungle have “rights” or “freedoms”.   They have insecurity, injustice, theft, rape, murder.   Why do you think people form government?…to secure their lives and property rights.

      1. “[Assault, battery, mayhem, and homicide] was the way conflicts were solved,” pbinCA. And human beings had the natural and God-given right and freedom to respond accordingly. Apparently you are fixated, in particular, on the problems addressed by the right to keep and bear arms, the 2nd Amendment:  A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Throughout history, individual human beings have had the natural and God-given right and freedom to obtain sticks and stones, clubs and rocks, for defense and sustenance. Certainly, throughout history, they had the natural and God-given freedoms of religion, thought, opinion, speech, press or publication, assembly, etc. These freedoms existed before government was conceived, per irrefutable empirical evidence, some of which is presented here, your hysterical, hyperbolic, irrational, and equivocating caterwauling notwithstanding.

  6. “Fifth Circuit Enjoins Biden Administration Censorship Program in Major Victory for Free Speech”

    And concurrently on the flipside, “POLICE STATE: FBI Quietly Created New Category of Extremism Ahead of 2024 Election to Include Trump-MAGA Supporters.”

    Kinda the opposite of free speech.

      1. Whew. One less thing to worry about. I’m not a Trump ‘supporter’ .. . and Trump doing MAGA makes about as much sense as Biden doing BBB.

        I wouldn’t let either one of them walk my pet possum . .. much less ‘support’ the fools.

        I’m just happy the FBI is not after strident critics of Joe Biden. Which is not the same thing as a ‘Trump supporter’.. . although it is often cast by the media as an inescapable conclusion.

        *I’m taking book on when Hunter Biden has his first ‘random’ drug test .. . if you want in on the action.

  7. So telling the truth about misinformation and propaganda would expose the lies from the Putin-Trump ticket, that isn’t fair to the liars.

    1. I believe in the ‘good’ lie, and well-meaning honest liars. For example, if you find a fallen comrade on the field of battle with his lower extremities blown off, it is appropriate to comfort him and say everything will be alright. Knowing full well he doesn’t have long for this mortal coil.

      Otoh, intellectual honesty is the bedrock foundation of every human affair .. .

      “While we’ve made progress,” Biden said, “democracy is still at risk. […] I’ve made the defense and protection and preservation of American democracy the central issue of my presidency. From the speech I made at Gettysburg, an Inaugural Address, to the anniversary of the June 6th insurrection — or January 6th insurrection — to Independence Hall in Philadelphia to the speech I made at Union Station in Washington, I’ve spoken about the danger of election denialism, political violence, and the battle for the soul of America.”

      *truth is beauty, beauty truth .. . ‘that is all ye know on this earth, and all ye need to know’

      1. So the guy is laying there blown half to bits and as he looks up he thinks to himself ” Why do I have this POS BS’ing me now, of all times. I WISH HE WOULD STFU AND GO AWAY.” It reminds me of the blowhards right now telling the entire world we can keep spending until all the cows are dead, it’s all good buddy boy ! There’s a reason so many of us hate liars. They never remain small kind liars. It’s never small and it’s never kind.

  8. Dear Prof Turley,

    I don’t know about you, but 90%+ of what I read in the funny-papers-that-passes-for-news nowadays is a form of mis-dis and malinformation (sic).

    The government by-and-large does have a duty and responsibility, imho, to inform the public of these threats. Publicly. Much like the public alert system test happening nationwide across the country from 2:20 to 2:40 pm. today.

    Otherwise, afaict, gov. officials have no inherent right, responsibility or interest in “engaging with social media companies” directly.
    At all.

    *>”“It is true that the officials have an interest in engaging with social media companies, including on issues such as misinformation and election interference. But the government is not permitted to advance these interests to the extent that it engages in viewpoint suppression.” ~ Missouri v Biden

    1. The comment at the end you quote perhaps refers to criminal misconduct, or what they currently interpret as such. Admittedly they will overstep that boundary and then largely ignore it. Secretly it will never hold them back, as they no doubt already have the new control and dominate channels in place, which will remain secret for a long time or forever.

  9. What can’t we use RICO against the federal government which conspired together against the First Admendment?
    Until laws are changed to hold unelected bureaucrats criminally responsible nothing will change.

    1. I have had the same thought from time to time. Of course, it’s never easy to take the federal government to task. The Federal Tort Claims is one notable exception; it is a limited waiver of sovereign immunity to be sure.  As citizens of this wonderful country, our recourse is thought to be our right to vote. However, in recent years citizens feel disenfranchised – understandably so.  Moreover, many wonder whether they are citizens of a sovereign nation. Now that the southern boarder has been erased, we should all wonder whether the United States exists as a sovereign nation at this point.

  10. What exactly is misinformation? Can it be defined in different ways? Is it considered insubordination If I feel that Drs. Atlas’ and Battacharya’s medical opinion has merit over Dr. Fauci’s–am I misinformed? Do I not have the right to question some government applications on appliances and household items (especially when I am wasting water by having to wash/rinse extra)? Looking over just the past few years, many of the answers to my questions have changed. Is the government always right (again many of the answers to my questions have changed) and private opinion always wrong. We can research in many areas–social media, privately owned news media (MSNBC, CNN, NY Times, Washington Post and more) and then we can use our God-given brain and make the best decision for ourselves and our families.

    1. “What exactly is misinformation?”

      Government censors will let you know — after the fact.

      “Can it be defined in different ways?”

      They don’t need definitions. Words mean whatever they wish them to mean.

      “Is it considered . . .”

      Now you’re just being recalcitrant. Perhaps you need a time out from social media. Or some time in a reeducation camp.

  11. When the Democrats had control of three branches of government the first thing they did was to create the new Department of Censorship.  They sharpened the teeth of the Department of Censorship by threatening the social media platforms.  Do you really think that they won’t do it again if they are restored to power?  Imagine what would be happening if they also controlled the Supreme Court.  Why do you think that Zuckerberg gave them half a million dollars in protection money?  It all comes directly from the mob boss at the top.  Capisce?

    1. When the Democrats had all three, they tried to:

      Abolish the filibuster…so they could

      Add 2 more blue states
      Abolish the electoral college
      Pack the SCOTUS with liberals

      They have already shown what they are capable of. Only Joe Manchin stood between us and one party rule right now!

      Think about that. If you think they screwed our country with $6T in reconciliation, imagine if Manchin hadn’t stood up to the Marxists!

      They will try it again, given the opportunity.

    1. UF, just like with the court rulings that struck down infringements of our 2nd amendment rights and thus strengthened them, this has the potential of doing the same for the 1st amendment.

  12. SHUT THEM DOWN – PUT THEM OUT OF BIZ for good. But we know they will keep trying. Let Biden Admin run to the Supreme Court where their record of accomplishment is terrible/Zero.

  13. Jen Easterly is taking the Cybersecurity and Infrastructure Security Agency’s original role of cybersecurity (protection against hackers) in a whole new political direction. Amazing how quickly an agency of 3000 plus employees changed direction since their establishment on 11/26/2018. Thank you, Jonathan, for an excellent article.

  14. When I was a kid growing up in an eastern suburb of Cleveland, there was an afternoon kids show on TV hosted by a guy that went by the name of Captain Penny. In actualilty his name was Ron Penfound and he was head honcho at the TV station. The show ran cartoons and Three Stooges episodes, etc., and when it was over he always signed off by saying the following words, permanently ingrained in my memory. Only many years later did I learn that the beginning was borrowed from Abe Lincoln:

    “You can fool some of the people all of the time, and all of the people some of the time, but you can’t fool mom. She’s pretty nice and she’s pretty smart. You do as mom says and you won’t go far wrong. Now if it’s nap time it’s nap time. Don’t worry about it and don’t stew about it, and you’ll live a whole lot longer.”

    I guess that’s how the saying would have gone if Lincoln had come along 100 years later and hosted an afternoon kids show on local TV.

    1. That was supposed to be a reply to the first comment for this article. I’ve NO CLUE how it ended up as an independent comment, except that this website continues to have serious technical issues.

      1. Hey Ralphie, serious issues you say? Finally admiting to TDS eh?
        BTW JT does not read your comments – believe me, he dosen’t really.
        Nothing like screaming at a wall hey stupid?

  15. The Fifth Circuit: bulwark of liberty.

    “Cognitive infrastructure” means thought control – a tyrant’s Orwellian dream.

  16. Good grief. Considering that this is likely going to the Supreme Court next (again), I don’t think I have the energy to read another gigantic ruling, after having read so many prior rulings in this case.

    So I’m just gonna guess that the Court of Appeals’ 10-day Stay in the Temporary Injunction — originally issued by Judge Doughty on the 4th of July, then modified by the 5th Circuit Court of Appeals — is intended to put a hold on the Temporary Injunction long enough to AGAIN allow the DOJ an opportunity to appeal to the Supreme Court.

    As best as I can tell, the Defendants’ Petition for Rehearing was taken as a Motion for Reconsideration and that no actual rehearing where lawyers show up to argue before the Court of Appeals was considered.

    If I’m wrong about any of that, someone please let me know — but only IF you know for a fact that I’m wrong. This isn’t an open invitation for the “Anonymous” Army of A-holes to respond with their patented nonsense. Plus, I know that they’ll do whatever they want anyway, with or without my invitation.

    So wake me up when SCOTUS agrees to take the case.

      1. I believe the only changes the court made to its decision were in the parts relating to CISA. The court now decided that though it appeared that CISA was merely “switchboarding”, in fact CISA engaged in strong encouragement by (1) advising the platforms to amend their policies to censor “hack and leak” operations and (2) advising the platforms of the truth or falsity of messages. It again stayed the injunction for 10 days to allow an appeal to the Supreme Court. 

        I believe the Supreme Court had deferred its decision on the earlier appeal until the 5th Circuit completed this reconsideration. Presumably the Supreme Court will need a bit more time once this is appealed to assess the position of CISA as well. 

        1. Thanks. That info and the clarification from the Missouri Attorney General filled in lot of blanks without making me reread what looked to be mostly the same info I had before. It’s still remarkably sloppy for all of them to make people try to interpret what’s going on here. Your assessment seems logical.

          1. Like it matters at all. We know what the demoncrats do – they ignore the laws. They were largely already stopped at Twitter / X , but the rest (except Rumble) will be silently complying and begging for more gov intervention and no doubt they already have a secret encryption connection set up months ago as all this was forming.
            THEY WILL DO IT ANYWAY 150%.

    1. The EU is doing their typical crap: “In theory, the Digital Services Act (DSA) came into force in the fall of 2022, but its first concrete effects will be felt starting Friday, August 25. From midnight, the 19 largest social media platforms, marketplaces and search engines have to comply with the EU law on digital services, requiring them to better regulate content. For months now, most of these tech giants have been preparing to meet the European regulator’s demands. The US-based Amazon and the German Zalando, also affected by the regulation, have gone to court to challenge their inclusion in the list drawn up by the European Commission.” And the US fascists have a wet dream in implementing that, I suppose – perhaps they’ll use the EU laws as a cudgel like CA uses its rotten standards to push nationwide regs. Pure anti-democratic population domestication. Those leaders are siciopaths that must be excised from all power, at least.

    2. Anything and everything that will bring them closer to their goal of eliminating the constitution in its entirety. They will not stop until their reach that goal or they are stopped dead in their tracks – that is the truth of it. There is no more compromising with a prog/eft ideologue than compromising with and other zealot as we learned during our dealings with Islamic Jihadists – they will go the distance to achieve their goals as it is a belief, a faith and it is not based on logic or rational thinking.

  17. “You can fool some of the people all of the time, and all of the people some of the time, but you can not fool all of the people all of the time.”
    ― Abraham Lincoln It is not certain that Lincoln actually said this but it is an appropriate quote in that it appears that the prog/left’s dream of brainwashing the entire nation is beginning to enter the last phase of that quote because many Americans with unfogged brains are beginning to comprehend the pernicious nature of the prog/left ideology and methodology.

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