Gen. Glen VanHerck, the commander of North American Aerospace Defense Command and U.S. Northern Command, meets with members from the Cybersecurity and Infrastructure Security Agency (CISA) as well as other industry leaders to discuss the global security environment on Peterson Space Force Base, Colo., Aug. 22, 2023. (Joshua Armstrong/Department of Defense)
The U.S. Court of Appeals for the 5th Circuit on Tuesday ruled that a key cybersecurity defense agency probably violated the First Amendment in its efforts to coordinate with Silicon Valley to protect elections from online hoaxes, in a decision that could have sweeping implications for government efforts to secure the vote in 2024.
The panel of three judges nominated by Republican presidents wrote that the Cybersecurity and Infrastructure Security Agency “used its frequent interactions with social media platforms to push them to adopt more restrictive policies on election-related speech,” revising an injunction issued last month.
The decision bars CISA, its director, Jen Easterly, and several other top agency officials from taking actions that “coerce or significantly encourage” tech companies to remove or reduce the spread of posts. CISA, which was established in 2018, has played a prominent role in efforts to secure elections from online threats, in part through communicating with social media companies during the 2020 elections.
The ruling clears the way for the Supreme Court to decide whether to take the case, after the Justice Department asked the justices to put the 5th Circuit ruling on hold. It’s a significant reversal of a September decision by the same panel of judges, which found that though CISA flagged posts to the platforms, there was not sufficient evidence that the agency’s activities crossed the line and were coercion.
The litigation, Missouri v. Biden, is at the center of a growing conservative legal and political movement that has cast a pall over efforts to fight misinformation online. This case and recent probes in the Republican-controlled House of Representatives have accused government officials of actively colluding with platforms to influence public discourse, in an evolution of long-running allegations that liberal employees inside tech companies favor Democrats when making decisions about what posts are removed or limited 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 Tuesday decision expands an order issued in September, which argued that a number of other government agencies — including the Biden White House, FBI and key government health agencies — violated the First Amendment by improperly influencing tech companies’ decisions about removing or limiting posts related to the 2020 elections and the coronavirus.
Some advocates and First Amendment scholars viewed that decision as a significant improvement over a temporary injunction issued by U.S. District Judge Terry A. Doughty on July 4, which applied strict limits to CISA, the departments of State, Homeland Security, Health and Human Services, and a number of other government agencies.
CISA’s role in efforts to protect the 2020 elections ignited days after voting ended, when former president Donald Trump fired the agency’s chief, Christopher Krebs, in a tweet. Krebs had refuted Trump’s claims that election systems were manipulated and previously celebrated the 5th Circuit order that did not limit CISA communications as “reassuring.”
In Tuesday’s order, the 5th Circuit judges said CISA served as the “primary facilitator” of the FBI’s interactions with social media companies, and they allege the agency worked closely with the FBI to “push the platforms to change their moderation policies to cover ‘hack-and-leak’ content.”
The companies’ policies on such content came under scrutiny after Twitter, now known as X, cited those rules in its controversial decision to block users from sharing a controversial New York Post story about Joe Biden’s son, Hunter Biden. The decision was later reversed by Twitter, and company leaders have repeatedly said it was a mistake.
The judges also said CISA went beyond relaying flagged social media posts from state and local election officials to the tech companies, instead telling companies whether the posts were true or false.
“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,” the decision said.
CISA declined to comment on the litigation, but executive director Brandon Wales said the agency does not censor speech. The agency seeks to share information on election literacy with the public, he said.
“CISA does not and has never censored speech or facilitated censorship; any such claims are patently false,” Wales said in a statement. “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.”
The 5th Circuit panel — which includes Judges Edith Brown Clement, Don R. Willett and Jennifer Walker Elrod, who were appointed by Republicans — revisited the September order after the Republican attorneys general who initially brought the case requested a rehearing, arguing that the court overlooked “significant evidence” showing CISA ran afoul of the First Amendment in coordinating with the FBI.
The court, however, did not grant the plaintiffs’ request to apply the injunction to the State Department or to reinstate the part of the July injunction barring government officials from participating with academic-led initiatives to address disinformation, including the Election Integrity Partnership and the Virality Project.
Missouri Attorney General Andrew Bailey (R), a key plaintiff in the case, accused CISA of being the “nerve center of the censorship enterprise” and said the state will not back down in defending its citizens’ constitutional rights. “We look forward to defending your First Amendment rights at the nation’s highest court,” he tweeted.
Tim Starks and Ann E. Marimow contributed to this report.
