Columbia University law professor Philip Hamburger, writing in the Wall Street Journal, applauds U.S. District Court Judge Terry Doughty’s issuance – in Missouri v. Biden – of a preliminary injunction against eight U.S. government agencies’, and some officials’, attempts to pressure social-media companies into suppressing what the government deems to be misinformation or disinformation. A slice:
At stake is the federal government’s use of social-media platforms to censor Americans. Officials kept most of their censorship regime secret through two election cycles. Discovery in Missouri v. Biden, however, revealed extensive evidence of government coercion and encouragement of censorship. It is the most massive assault on free speech in the nation’s history.
Holding that the plaintiffs were likely to succeed in their First Amendment claims, Judge Doughty issued a preliminary injunction against eight federal agencies—including the Justice Department, the Federal Bureau of Investigation, the Department of Health and Human Services and the Centers for Disease Control and Prevention. Also enjoined were many officials, including the surgeon general and a host of White House staffers. The judge barred them from (among other things) “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.”
The plaintiffs include two states, Missouri and Louisiana. Epidemiologists Jay Bhattacharya and Martin Kulldorff are among the individual plaintiffs represented by the New Civil Liberties Alliance, where I am the CEO. They were co-authors of the Great Barrington Declaration, which criticized Covid lockdowns. Four days after it was issued, Anthony Fauci and other government officials proposed a “take down” of it.
The government-orchestrated censorship involves monitoring billions of posts and suppressing millions. It targets speech about electoral politics, medical and scientific debates, foreign policy and more.
Judge Doughty observes that “the censorship alleged in this case almost exclusively targeted conservative speech.” That reveals “viewpoint discrimination,” which is distinctively suspect in First Amendment jurisprudence.
Federal courts rarely issue decisions on federal holidays, so it’s likely that Judge Doughty wanted his 155-page ruling understood as a veritable declaration of independence from over two years of Covid censorship, stoked and promoted by bureaucrats such as Fauci and the politicians who enabled him. Citing the products of AIER’s email FOIA request, the ruling meticulously documents how government officials advanced their smear campaign against the GBD, its authors, AIER, and other critics.
Judge Doughty says the case “arguably involves the most massive attack against free speech in United States’ history.” If the facts alleged are true (and there is little doubt about that), the government has “blatantly ignored the First Amendment’s right to free speech.” Its actions raise issues that “go beyond party lines” because its suppression threatens to replace “an uninhibited marketplace of ideas in which truth will ultimately prevail” with a “monopolization of the market.”
Big news on big tech and free speech. A federal judge ruled Tuesday that government officials can’t coerce social-media platforms to do what the Constitution forbids the government from doing.
Missouri and Louisiana, joined by scientists and conservatives whose posts were censored, sued to protect their First Amendment rights. The issue in Missouri v. Biden isn’t whether social-media platforms are government actors, but whether government officials can be held responsible for their censorship. Judge Terry Doughty ruled they can and his 155-page opinion describes disturbing coordination between the government and tech firms to suppress unpopular views, especially on Covid-19.
White House officials and public-health agency leaders held biweekly meetings with tech companies over how to curb the spread of misinformation during the pandemic. Former White House director of digital strategy Rob Flaherty and Covid-19 adviser Andy Slavitt were in constant contact with social-media executives, as former press secretary Jen Psaki acknowledged.
The private intimidation was amplified by public threats to use antitrust action and regulation if tech companies didn’t follow orders. Ms. Psaki warned on May 5, 2021, that platforms could face “legal consequences” if they didn’t do more. White House communications director Kate Bedingfield warned on July 21 that the White House was weighing whether social-media companies should be legally liable for misinformation on their platforms and whether to amend Section 230 to ensure platforms “be held accountable.”
The Biden Administration claims government officials were merely making “recommendations,” not demands. But the threats were explicit, and the companies knew they could face government investigations and punishment if they disobeyed.
The government also claims officials’ statements are protected speech. But as the judge notes, “It was not the public statements that were the problem. It was the alleged use of government agencies and employees to coerce and/or significantly encourage social-media platforms to suppress free speech on those platforms.”
In a statement responding to Tuesday’s injunction, the White House said it had “promoted responsible actions to protect public health, safety, and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections” and added that social media platforms “make independent choices about the information they present.”
But recent reporting—including by Reason‘s Robby Soave—suggests otherwise. Moderators at Facebook and Twitter routinely deferred to officials at the Centers for Disease Control and Prevention (CDC) and other government agencies to determine what content would be considered accurate information and what should be suppressed. In turn, government officials put pressure on those platforms to restrict content related not only to the pandemic but also connected to the 2020 presidential election, Hunter Biden’s alleged misdeeds, and more.
Doughty’s ruling is a preliminary injunction that bars federal agencies from engaging in many—though not all—of these behaviors. The outcome has alarmed mainstream outlets like The Washington Post and The New York Times, whose reports included quotations from internet security “experts” fretting about the federal government’s diminished ability to police speech online. Guests on CNN and MSNBC took an even more apocalyptic tone: CNN legal analyst Elie Hoenig assailed the “aggressive, far-reaching” ruling, while NBC News reporter Ryan Reilly described a world free of federal pressure on social media platforms as one that “we wouldn’t want to live in.” Reilly also fundamentally under-appreciated the scope of the pressure campaign, telling MSNBC viewers that “It’s not as though the FBI has been going in & saying, ‘Hey, take down this post.'”
Contrary to Reilly’s claim, the FBI has done precisely that. For instance, the FBI frequently flagged joke tweets about the 2020 election and asked moderators at Twitter to take them down. The White House itself did the very same thing. As Doughty pointed out in his ruling, White House Digital Strategy Director Rob Flaherty personally appealed to Twitter to remove an account that parodied Biden’s granddaughter. “Please remove this account immediately,” wrote Flaherty. Forty-five minutes later, Twitter complied.
If Doughty’s decision prevents the federal employees from engaging in such heavy-handed muzzling, it would be a welcome relief. Unfortunately, there is reason to doubt that the decision will meaningfully constrain the feds. That’s because Doughty drew up a list of actions that are “NOT prohibited by this preliminary injunction,” and this list could reasonably be read to permit the very sort of behavior—jawboning—that has produced the censorship.
The most patriotic fireworks yesterday are from a federal judge whose ruling halting President Biden’s online censorship program will spark debate about Democrats using the cudgel of “disinformation” to stifle free speech. The ruling, in which the judge compared Mr. Biden’s effort to Orwell’s “Ministry of Truth,” notes fears that “the government has used its power to silence the opposition.” It would have outraged the American Framers.
The Post also warns that 62 million people in the U.S. may be “exposed” to dangerous heat “today.” That’s a lot of people, even considering nearly all of them live in the southernmost spots in the country and it’s summer. The Post counts anyone exposed to heat over 90 degrees Fahrenheit as being in some level of danger. Fortunately, most Americans enjoy the luxury and health benefits of air conditioning, one of the great innovations of the past century.