GOP AGs Want Injunction Reinstated for CISA, State Department: Petition

The Republican attorneys general of Louisiana and Missouri want the 5th U.S. Circuit Court of Appeals to “reinstate” officials from the Cybersecurity and Infrastructure Security Agency and the State Department to the social media injunction imposed on the White House, the surgeon general’s office, the FBI and the Centers for Disease Control and Prevention (see 2309110001), said the AGs’ petition for panel rehearing Friday (docket 23-30445).

The AGs telegraphed their plans to file their petition for panel rehearing when responding Wednesday at the U.S. Supreme Court in opposition to the government’s application for a full stay of the injunction, pending the disposition of the SCOTUS review (see 2309210001).

The 5th Circuit’s Sept. 8 order vacated CISA and State Department officials from the injunction imposed July 4 by U.S. District Judge Terry Doughty for Western Louisiana in Monroe (see 2307050042). In so doing, the 5th Circuit cited a lack of sufficient evidence that officials from those agencies coerced or significantly encouraged the social media companies to censor or moderate content deemed disfavored by the Biden administration.

The AGs “accept and agree with the vast majority” of the 5th Circuit Sept. 8 opinion and analysis, said their petition for panel rehearing. But they submit that the 5th Circuit “overlooked or misapprehended material points of fact relevant to the injunction” against CISA and the State Department and their collaborations with the Election Integrity Partnership (EIP) and the Virality Project to censure protected speech, it said.

CISA, in particular, serves as the “nerve center” of federal censorship efforts, said the petition. “Its actions in originating, launching, coordinating, and participating in the EIP constitute particularly egregious violations of the First Amendment,” it said. Doughty’s injunction cited regular and systematic “direct email communications” between the EIP and CISA about reporting misinformation on social media.

The 5th Circuit’s analysis “overlooks significant evidence that CISA closely cooperated with the FBI in conduct violating the First Amendment,” said the petition. CISA and the FBI “participate in the same meetings with platforms and push platforms to censor speech on the same topics,” it said. CISA was directly involved in the FBI’s campaign to induce platforms to adopt policies for censoring “hack-and-leak” materials, it said. That was “a determinative factor” in the 5th Circuit’s conclusion that the FBI violated the First Amendment, it said.

The court’s analysis also overlooks the “extensive entanglement” of the CISA and the State Department’s Global Engagement Center with the platforms’ decisionmaking through the EIP, said the petition. It describes the EIP as a “multi-stakeholder censorship consortium” composed of the government and academic researchers from Stanford University and the University of Washington, plus the platforms themselves. “This entanglement warrants a finding of state action on this ground as well,” it said.

The 5th Circuit wrongly said the injunction against federal officials’ participation in the EIP exceeds the scope of the parties’ presentation, said the petition. But that overlooks the nature of the plaintiffs’ presentation, “of which challenging CISA’s role in the EIP was a major focus,” it said.

Contrary to the 5th Circuit’s findings, the EIP isn’t a private organization, “but a joint government-private consortium launched by CISA, said the petition. The court overlooks “extensive evidence” showing “pervasive federal involvement in the EIP,” including that CISA “launched the EIP and works in close cooperation with it,” it said. There’s also extensive evidence of “pervasive entwinement between CISA and the EIP,” it said.

The federal government funds the EIP’s operations, and CISA’s “mass-flagging operations” of 2020 and 2022 election misinformation “were closely integrated with the EIP’s,” said the petition. There’s “extensive overlap” in leadership and personnel between CISA and the EIP,” it said. The EIP’s key leaders “also have formal roles in CISA, and the two organizations share censorship staff,” it said.

The 5th Circuit overlooks extensive, “unrebutted evidence” that, through the EIP, CISA “successfully pressured platforms to adopt more restrictive content-moderation policies on election-related speech,” said the petition. When CISA’s activities are seen to encompass the EIP, there’s “plain evidence” that content was actually moderated “per CISA’s requests,” it said. “The evidence indicates that the EIP induced platforms to moderate content on millions of occasions,” it said.

Enjoining federal officials from participating in the EIP, as the petition for panel rehearing seeks to do, “inflicts no cognizable injury on the rights of third parties,” said AGs. The vacated prohibition in the 5th Circuit’s order didn’t prevent conduct of private, third-party actors from the EIP, it said. “It only prevented federal officials from collaborating with them to silence ordinary Americans’ speech,” it said.

Whatever the scope of those third parties’ rights, they don’t have a First Amendment right “to have federal officials participate in their censorship projects,” said the petition. Nor do they have the right “to insist that federal officials violate” the plaintiffs’ First Amendment rights, it said.

The “highly sophisticated entities” of Stanford University and the University of Washington that are active in the EIP “had ample opportunity to present any such concerns about their own rights to the district court, but never did so,” said the petition. “This case was one of the most widely publicized in the country for months, and but they never sought to intervene or even file an amicus brief in the district court to assert their interests,” it said. “Instead, they raised their concerns for the first time on appeal in an amicus brief that grievously misstates the evidence and their own public statements.”