The Fifth Circuit Court of Appeals agreed Monday to consider expanding its injunction barring the Biden administration from coercing or significantly encouraging social media companies to censor speech to include other entities it initially excluded.
The three federal judges who ruled earlier this month that the White House, Surgeon General, CDC and FBI violated the First Amendment agreed Monday to the plaintiff’s request that they rehear the case and consider extending the injunction to other agencies, which they previously said the district court “erred” in including.
The plaintiffs requested the court reinstate the injunction to include the Cybersecurity and Infrastructure Security Agency (CISA) and State Department officials, along with reinstating portions of the district court’s injunction preventing government officials from collaborating with the private-sector partners including the Election Integrity Partnership and Virality Project.
“CISA, in particular, serves as the ‘nerve center’ of federal censorship efforts, and its actions in originating, launching, coordinating, and participating in the EIP constitute particularly egregious violations of the First Amendment,” plaintiffs told the court last week. (RELATED: Biden Admin May Have Made A Huge Mistake In Asking SCOTUS To Take On Gov’t Censorship Case)
WHOA! 5th Cir. grants PLAINTIFFS’ rehearing, meaning they Biden Administration might soon be losing bigger in its censorship efforts! pic.twitter.com/XZpQD5RmUo
— Margot Cleveland (@ProfMJCleveland) September 25, 2023
The appeals court initially found that District of Louisiana Judge Terry A. Doughty’s injunction was “vague and broader than necessary,” writing that “the district court erred in finding that the NIAID Officials, CISA Officials, and State Department Officials likely violated Plaintiffs’ First Amendment rights.”
Doughty’s injunction also blocked the government from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with” research groups and projects that advocate for censorship, including the EIP, the Virality Project and the Stanford Internet Observatory.
Following the Fifth Circuit’s ruling, the Biden administration filed an application with the Supreme Court to pause the injunction, promising to appeal the ruling by Oct. 13. Justice Samuel Alito last week extended a temporary freeze on the injunction through Wednesday, though the justices have yet to make their determination on the request.
The government argued the ruling placed “unprecedented limits on the ability of the President’s closest aides to use the bully pulpit to address matters of public concern.”
In their response last week to the Biden administration’s request, plaintiffs also asked the Supreme Court to weigh in on whether the Fifth Circuit erred in eliminating CISA from the injunction, should the justices take the case.
Jenin Younes, lead counsel representing the four private plaintiffs on the Missouri v. Biden case for the New Civil Liberties Alliance, told the Daily Caller News Foundation she believes the court’s decision to rehear the case indicates a willingness to reconsider excluding CISA and other agencies.
“In terms of the Supreme Court application, it’s not clear exactly what effect it will have,” she said. “Presumably, SCOTUS can still decide the stay motion. However, it might make them less inclined to grant the government’s petition for cert, since they may want the wrinkles worked out in the Fifth Circuit before they take it up.”
The Biden administration called the Fifth Circuit’s decision “unreasoned” in a Tuesday filing with the Supreme Court, where it addressed the change and reaffirmed its request to freeze the injunction.
The Fifth Circuit issued a new order Tuesday withdrawing the order granting rehearing. Instead, it called for a response to be filed so it could consider rehearing the case.
The White House did not immediately respond to a request for comment.
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