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.”