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Originally published on The Defender.
The New Orleans-based U.S. Court of Appeals for the 5th Circuit on Tuesday issued a preliminary injunction against the Cybersecurity and Infrastructure Security Agency (CISA), finding it likely violated the First Amendment by influencing social media platforms’ content moderation practices on topics such as COVID-19 and the 2020 U.S. elections.
The injunction, part of an ongoing First Amendment lawsuit, Missouri et al. v. Biden et al., bars CISA from interacting with social media platforms. It broadens an injunction issued last month, also by the 5th Circuit, against White House officials, the Surgeon General, the Centers for Disease Control and Prevention and the FBI.
The court found those agencies and officials “likely coerced or significantly encouraged social media platforms to moderate content, rendering those decisions state actions.”
The Washington Post described Tuesday’s order as “a significant reversal” of last month’s injunction, which excluded CISA, adding that it “could have sweeping implications for government efforts to protect elections from disinformation campaigns.”
Kim Mack Rosenberg, acting general counsel for Children’s Health Defense (CHD), said “CISA is a critical player in the administration’s censorship activities. Including CISA as an enjoined party — as it originally had been — further strengthens the impact of the injunction.”
Journalist Paul D. Thacker, who has investigated CISA’s suppression of online speech, told The Defender, “Finding that CISA violated the First Amendment really proves that many groups lied when they claimed Americans weren’t censored.”
“It is past time we hold CISA and any other government organizations responsible for colluding with social media platforms which have secretly censored our voices in the public discourse, thus breaking the law and our First Amendment rights. The 5th Circuit Court of Appeals did the right thing,” she said.
Court: CISA ‘pressured’ social media platforms into adopting censorship policies
The injunction is the latest development in Missouri et al. v. Biden et. al., filed in May 2022 by the attorneys general of Missouri and Louisiana and several individual plaintiffs, including Jay Bhattacharya, M.D., Ph.D., Martin Kulldorff, Ph.D., Dr. Aaron Kheriaty, and Jill Hines.
The suit alleges the federal government, including CISA, violated the First Amendment free speech clause by suppressing speech on social media platforms.
Michael Rectenwald, Ph.D., author of “Google Archipelago: The Digital Gulag and the Simulation of Freedom,” called CISA “a federal government censorship and narrative maintenance organization designed to protect the state’s propaganda from facts and opinions the state deems to be harmful to its agenda.”
In its order, the three-judge panel of the 5th Circuit adopted a similar view, finding that CISA “used its frequent interactions with social media platforms to push them to adopt more restrictive policies on election-related speech.”
The expanded injunction bars CISA, its director, Jen Easterly, and other key agency officials from any actions that “coerce or significantly encourage” social media platforms to remove posts or reduce their visibility.
The court said CISA “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.”
According to the Post, the 5th Circuit expanded the injunction first issued in September after the attorneys general of Missouri and Louisiana requested a rehearing. They argued that the court failed to consider “significant evidence” demonstrating that CISA violated the First Amendment.
The three-judge panel was swayed, writing in its order that CISA acted as the “primary facilitator” of the FBI’s interactions with social media platforms, pushing them “to change their moderation policies.”
According to the ruling, “The platforms’ censorship decisions were made under policies that CISA has pressured them into adopting and based on CISA’s determination of the veracity of the flagged information.”
Rosenberg told The Defender, “According to the opinion, CISA told social media platforms whether certain content was ‘true’ or not, and this resulted in policy and content changes at social media platforms.”
“Further, as the court described in yesterday’s opinion: ‘CISA — working in close connection with the FBI — held regular industry meetings with the platforms concerning their moderation policies, pushing them to adopt CISA’s proposed practices for addressing ‘mis-, dis-, and mal-information,’” Rosenberg said.
“CISA also engaged in ‘switchboarding’ operations, meaning, at least in theory, that CISA officials acted as an intermediary for third parties by forwarding flagged content from them to the platforms,” she added.
The Post reported that the ruling “clears the way for the Supreme Court to decide whether to take the case” — a sentiment reflected in tweets by key plaintiffs in the case.
Jenin Younes, litigation counsel for the New Civil Liberties Alliance (NCLA), which represents several of the individual plaintiffs in the lawsuit, told The Defender the expanded injunction “is a welcome development in this case,” as CISA’s “initial exclusion from the injunction was troubling.”
Describing CISA as “one of the most culpable actors in the government-censorship regime,” Younes said, “NCLA looks forward to vindicating our clients’ rights in the nation’s highest court. We expect the government will again seek a stay of the injunction and petition for certiorari there in the immediate future.”
In a statement, the NCLA said it is “pleased all these officials will be enjoined from infringing on the First Amendment rights of our clients, Drs. Jayanta Bhattacharya, Martin Kulldorff and Aaron Kheriaty, and Ms. Jill Hines — and other brave Americans.”
The NCLA added:
“The injunction vindicates Drs. Bhattacharya, Kulldorff and Kheriaty, and Ms. Hines, who have all been blacklisted, shadow-banned, de-boosted, throttled, and censored on social media as part of the Biden Administration’s years-long censorship campaign.”
In a statement quoted by the Post, Brandon Wales, executive director of CISA, said “CISA does not and has never censored speech or facilitated censorship; any such claims are patently false.”
“Every day, the men and women of CISA execute the agency’s mission of reducing risk to U.S. critical infrastructure in a way that protects Americans’ freedom of speech, civil rights, civil liberties, and privacy,” he added.
CISA ‘nerve center of federal government censorship’
CISA was established by Congress in 2018 within the U.S. Department of Homeland Security (DHS) to defend critical infrastructure, such as election systems, from “foreign attacks.”
According to The Federalist, CISA acts as “the ‘nerve center’ of federal government censorship” and “is responsible for censoring the American public, facilitating collusion between the feds and social media companies, and interfering in our elections.”
“CISA helped conceive and create the Election Integrity Partnership (EIP), a private “anti-disinformation” organization that lobbied tech companies to establish oppressive content moderation policies. EIP also flagged offending content and flagged “entire narratives” for social media platforms to address,” The Federalist wrote.
“CISA both directly and indirectly censored Americans,” according to The Federalist. “The agency directly forwarded social media posts to various platforms seeking for them to be censored and facilitated meetings between Big Tech companies and national security and law enforcement agencies to address ‘mis-, dis-, and mal-information.’”
EIP — which later became known as the Stanford Internet Observatory and which operated the Virality Project, was the subject of previous “Twitter Files” releases that revealed a network of high-level interactions with the federal government and social media platforms that began days after the Biden administration took office in early 2021.
In April 2022, for instance, the Virality Project proposed a “rumor-control mechanism” and a “Mis- and Disinformation Center of Excellence” be established at the federal level and housed within CISA.
One day after the Virality Project published this proposal, DHS Secretary Alejandro Mayorkas announced the formation of the “Disinformation Governance Board.”
Thacker told The Defender in June that researchers from Stanford and the University of Washington worked with CISA “to fill the gap of the things the government could not do themselves.” Thacker said this is an admission “that academics served as a cutout for federal censoring of Americans.”
And according to an investigation by Tablet Magazine, CISA in 2021 transformed its “Countering Foreign Influence Task Force” to “promote more flexibility to focus on general MDM” — referring to “misinformation, disinformation and malinformation.”
“Together they operated an industrial-scale censorship machine in which the government and NGOs sent tickets to the tech companies that flagged objectionable content they wanted scrubbed,” Tablet reported. This allowed DHS to outsource its work to the EIP, and later the Stanford Internet Observatory.
In June, the U.S. House of Representatives Judiciary Committee and the Select Subcommittee on the Weaponization of the Federal Government released an interim staff report revealing “collusion between CISA, Big Tech, and government-funded third parties to conduct censorship by proxy: to “censor Americans’ speech on social media.”
And in an April op-ed for The Hill, Sen. Rand Paul (R-Ky.) described the collaboration of DHS with agencies such as CISA, and their actions to police content on social media, as an “abuse of power” that “should terrify all of us.”
Paul added that CISA sought to use nonprofit non-governmental organizations as a “clearing house for information to avoid the appearance of government propaganda.”
According to The Federalist, Easterly “justifies censoring the truth because she believes it is CISA’s job to secure ‘cognitive infrastructure,’ meaning our minds,” and “claims that Americans’ ‘cognitive infrastructure’ is ‘the most critical infrastructure’ for CISA to ‘protect.’”
“What she really means is that the public’s minds are critical to control,” The Federalist wrote.
Rectenwald told The Defender, “CISA was created to infringe First Amendment rights and to secure ‘cognitive infrastructure’ — that is, the mind control of the public,” adding his view that “CISA should be abolished immediately.”
Thacker told The Defender key figures who collaborated with CISA, including Alex Stamos, director of the Stanford Internet Observatory and a “cybersecurity expert” who once served as Facebook’s chief security officer, and EIP’s research manager, Renee DiResta, who previously worked for the CIA, should be investigated.
“It’s time to take a harder look now at Stanford University researchers Alex Stamos and Renee DiResta. As I have reported, Stamos and DiResta worked hand in glove with CISA through the EIP to undermine the Constitution. Stanford needs to explain why purported academics are doing this to Americans.”
Bollinger told The Defender the censorship CISA helped facilitate was not victimless.
“I believe it is time to take down this organization and any other that works to keep our voices from public discourse. Millions of people may have lived had our content not been banned from social media platforms by these people during the COVID years. It is a travesty of justice,” she said.
Notably, the 5th Circuit, in its Tuesday order, did not grant the plaintiffs’ request to apply the injunction to the State Department and to bar government officials from collaborating with academic entities such as the Stanford Internet Observatory and the Virality Project, the Post reported.
House of Representatives rejected bill that would have reduced CISA funding
Missouri et al. v. Biden et al. has followed a circuitous path through federal courts.
On July 4, Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana Monroe Division issued a 155-page ruling finding there is “substantial evidence” the government violated the First Amendment by engaging in a censorship campaign targeting content that questioned establishment narratives on COVID-19.
The Biden administration appealed to the 5th Circuit, which heard oral arguments in August. On Sept. 8, the 5th Circuit partially upheld the July 4 ruling but removed CISA and some other federal agencies and officials from the injunction.
On Sept. 14, U.S. Supreme Court Justice Samuel Alito paused the injunction for 10 days, which was set to come into effect Sept. 18. The pause was subsequently extended by the Supreme Court on Sept. 22, until Oct. 1.
CHD and its chairman on leave, Robert F. Kennedy Jr., filed an amicus brief with the Supreme Court Sept. 20, opposing the pause. They previously filed a similar lawsuit against the Biden administration in March, Kennedy et al. v. Biden et al., alleging “a systematic, concerted campaign” by the government to censor speech on social media.
In July, the U.S. District Court for the Western District of Louisiana Monroe Division consolidated the two lawsuits.
Bringing CISA back under the injunction’s umbrella is positive for all Americans — including the plaintiffs in Kennedy & CHD v. Biden — in, we hope, allowing more free expression and access to a wider variety of information and opinions, not just those that the Biden administration deems appropriate to share.
According to the Post, cases like Missouri et al. v. Biden et al. are “at the center of a growing conservative legal and political movement that has cast a pall over efforts to fight misinformation online.”
“Amid the litigation, key universities are discussing how they can continue tracking election-related misinformation, and public health agencies have frozen programs intended to improve the quality of medical information online,” the Post wrote.
According to The Federalist, “Missouri v. Biden has demonstrated that CISA does not respect the First Amendment and is an immediate threat to freedom in America. The next step is for the agency to be dramatically defunded or, better yet, dismantled.”
A recent amendment that would have stripped CISA of 25% of its funding failed in the U.S. House of Representatives in a 320-108 vote on Sept. 27, with all House Democrats and 109 House Republicans voting against it.
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