This week we are pleased to have a guest post by Robinson+Cole Artificial Intelligence Team patent agent Daniel J. Lass.

After previously finding that the Biden White House and the FBI likely violated First Amendment free speech protections for some users of online social media platforms, the Fifth Circuit expanded its ruling to find that the Cybersecurity and Infrastructure Security Agency (CISA) also likely violated the First Amendment.

To stop the spread of misinformation about the 2020 election and COVID-19 on social media platforms, the government attempted to work with the social media companies to remove or restrict false or misleading posts. The Fifth Circuit, however, found that these interactions were coercive and pushed social media companies to adopt a more restrictive content removal policy. Although previously not included, the Fifth Circuit now determined that CISA worked jointly with the FBI to push these policies onto the social media companies. Specifically, the new decision found that CISA told companies whether individual posts were true, and that CISA pressured companies to remove posts that it determined were false. As a result of this ruling, CISA and its director Jen Easterly are barred from coercing or significantly encouraging social media companies to censor posts. The Biden Administration had previously asked the Supreme Court to stay the injunction following the Fifth Circuit’s initial ruling and renewed that request after the updated ruling. In the updated request, the Court agreed to stay the injunction issued by the Fifth Circuit until the Supreme Court has an opportunity to fully consider the case. A ruling later this term will likely influence how the government combats potential misinformation and interference in the 2024 election.