The 5th Circuit has granted a rehearing of the Missouri v. Biden case that previously resulted in a decision limiting Biden administration officials from communicating with Big Tech companies about content moderation related to free speech and misinformation.
The rehearing was granted on Monday after the Louisiana and Missouri state attorneys general filed a request on Friday requesting that the Cybersecurity and Infrastructure Security Agency, the Stanford-based Election Integrity Project, and the State Department's Global Engagement Center be included in a 5th Circuit decision limiting communications between social media companies and federal agencies and government-funded entities.
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The rehearing was approved days before the Supreme Court is slated to decide whether to leave the lower court ruling in place.
CISA "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," the attorneys general claimed.
Louisiana-based U.S. District Judge Terry Doughty issued an order in July that limited the federal government’s communications with social media companies about virtually all content. The subsequent 5th Circuit Court of Appeals ruling by a three-judge panel on Sept. 11 agreed with the decision, though it narrowed the number of government-affiliated entities affected by the decision. The Biden administration appealed the ruling on Sept. 14, asking that the Supreme Court put the decision on hold until it can file a petition for review. The Supreme Court was scheduled to rule on whether to uphold or reverse the 5th Circuit's decision on Friday but extended the self-imposed deadline until Wednesday. The rehearing is expected to occur after the Supreme Court's decision, although a date has not been set.
Last year, Republican attorneys general in Missouri and Louisiana filed the suit, along with four individual plaintiffs who alleged that their social media posts about the COVID-19 lab leak theory and vaccine side effects were removed or suppressed.
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Federal agencies "coerced, threatened, and pressured social-media platforms to censor” them, in violation of the First Amendment, the states claimed in their ruling.
The Election Integrity Project was created in partnership with the Stanford Internet Observatory to record and identify misinformation involving COVID-19 and the 2020 election. The project has been targeted by House Judiciary Chairman Jim Jordan (R-OH), who has attempted to acquire records of communications between the EIP and federal agencies regarding misinformation.