LIT’s Last Supper Series: Examining Judge Donny Willett’s Stance on Free Speech in Biden v. Missouri

The U.S. Court of Appeals for the Fifth Circuit’s decision in Missouri v. Biden is an important victory for freedom of expression. In a careful but clear ruling, the three-judge panel strongly reaffirmed the primacy of the First Amendment and the fundamental bar it imposes on government officials seeking to limit what we can say.

By coercing social media platforms “via urgent, uncompromising demands” into censoring users who voiced dissenting or disfavored views, officials from the White House, the Surgeon General’s office, the Centers for Disease Control and Prevention, and the Federal Bureau of Investigation likely violated the First Amendment.

And by “commandeering their decision-making processes,” these same officials significantly encouraged social media platforms to censor speech the government didn’t like. That poses First Amendment problems, too. As the court wrote: “Social-media platforms’ content-moderation decisions must be theirs and theirs alone.”

That’s exactly right.

The Fifth Circuit’s ruling takes the necessary care to distinguish impermissible coercion from simple persuasion. The decision’s well-grounded reasoning carefully draws the right line.

Regardless of one’s views on the subjects targeted by the government’s unlawful censorship campaign, this decision should be welcomed by all Americans. (sayeth FIRE)

Just as importantly, the Fifth Circuit addresses the problems FIRE identified with the district court’s sweeping injunction. By sharply narrowing the injunction to remove its restrictions on lawful communications between platforms and government actors, the Fifth Circuit was again cognizant of the First Amendment’s boundaries.

Regardless of one’s views on the subjects targeted by the government’s unlawful censorship campaign, this decision should be welcomed by all Americans. The principles it upholds will protect freedom of speech, regardless of whether coercive pressure comes from the left or the right.

FIRE applauds this important ruling. But we again note that the federal government’s overreach under both the Trump and Biden administrations underscores the need for legislation requiring governmental disclosure of its communications with social media companies.