An Injunction Preserves the First Amendment on Social Media—For Now
The decision follows a variety of court victories for free speech at the federal level.
In a season of good news for the First Amendment following some important Supreme Court decisions, here’s more to be happy about: A federal judge in Louisiana issued an injunction stopping Biden administration officials from contacting social media companies to block content in what could be a landmark order targeting government censorship and suppression of online postings.
The judge ruled the Biden administration likely violated the First Amendment by censoring unfavorable views on social media during the pandemic, calling the efforts “Orwellian.” It was the first formal acknowledgment of a systemic program by the government to use the social media giants as proxies to censor the speech of Americans.
The injunction is a major development in the fight over boundaries and limits of speech online. With a particular emphasis on the pandemic, Biden officials worked hand-in-glove with contacts at social media outlets such as Twitter and Facebook to block both entire themes (including non-administration takes on “climate change, gender discussions, abortion and economic policy,” as well as Covid) and specific individuals.
The judge said pressure went beyond aggressively encouraging the platforms to take down posts to coercion of some of the biggest social media companies by the “most powerful office in the world.” For example, at the Centers for Disease Control and Prevention, officials held “weekly sync” meetings with Facebook and emailed them offending posts for takedown. The FBI’s San Francisco field office had eight agents forwarding concerns about social media posts to seven tech companies multiple times a month.
Biden officials subject to the injunction include White House press secretary Karine Jean-Pierre, employees of the Justice Department and FBI, the State Department, the Centers for Disease Control, Health and Human Services Secretary Xavier Becerra, Department of Homeland Security Secretary Alejandro Mayorkas, Jen Easterly, who leads the Cybersecurity and Infrastructure Security Agency, and Surgeon General Vivek Murthy, plus two more pages of lesser-known names.
None of them may contact, for example, Twitter and request a particular post be taken down. They cannot talk to social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.” The judge’s order also bars government agencies from communicating with some outside groups, including the Election Integrity Partnership, the Virality Project, and the Stanford Internet Observatory, to promote the removal of protected speech.
Under the guise of preventing “disinformation” but in reality in support of a unified government line, the government exercised prior restraint, a stroke against the First Amendment. Prior restraint was also in evidence in the shadow government efforts to block anti-administration news, such as the discovery of financial crimes on Hunter Biden’s laptop and the Covid lab-leak theories. “When, in the public forum, there is speech they disagree with and does not align with their political narratives,” Missouri’s attorney general said, referring to administration officials, “they then collude with and coerce Big Tech’s social media to take that speech down.” In short, there was so much collusion between government and social media giants as to constitute active and ongoing censorship, and it was time to reassert the First Amendment rights of Americans to a marketplace of ideas, not just what the government wants to peddle.
“During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth,’” the Louisiana judge wrote. He concluded the plaintiffs, led by Missouri and Louisiana, were likely to succeed in suing the government and issued an injunction limiting administration officials from attempting to coordinate with social media giants to remove content until the matter can be formally settled. “If the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history,” the judge said.
For at least the time being, gone are the days a Robert Kennedy, Jr. post questioning vaccinations could be taken down after a phone call from the CDC, or a Joe Rogan Facebook post suggesting Covid arose from a lab leak in China be deep-sixed or “shadow-banned” by request of the FBI. The Biden administration has already appealed the injunction order. They warn the injunction could undermine national security efforts, since some “censorship” was established to respond to Russian actors sowing disinformation in the run-up to the 2016 election. Yet almost all the targets of federal censorship during the Biden era have been Americans. The issue has Supreme Court written all over it.
Most of the censorship practiced was imposed on conservative thinking. “This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech,” the judge wrote. “American citizens have the right to engage in free debate about the significant issues affecting the country… the evidence produced thus far depicts an almost dystopian scenario.” The injunction specifically cites a Biden grandchild parody account that was quickly deleted after an email from the White House director of digital strategy to contacts at the old Twitter. The judge also pointed to efforts to suppress content from Robert Kennedy and Ted Cruz. We note at one point in the past, my Twitter account, along with those of Antiwar.com’s Scott Horton and Ron Paul Institute director Daniel McAdams, were suspended on the same day, and restored only under Twitter's new management.
At the core of all this is “disinformation,” a la George Orwell’s Newspeak. Ostensibly referring to social or MSM content of dubious authenticity, the term has been further bastardized to basically mean anything contentious that one side disagrees with. The idea that the government can, behind closed doors, label some bit of information as disinformation and demand it be taken down from social media is indeed censorship. It prevents offending ideas from reaching the public.
Over the past few years, coordination and communication between government officials and the companies increased as the federal government responded to rising election interference and voter suppression efforts after claims Russian actors sowed disinformation on social media sites during the 2016 election. Public health officials also frequently communicated with the companies during the pandemic. Orders seemed to come from the top. “They’re killing people,” Biden said in July 2021, after being asked about the presence of anti-vaccine content on Facebook.
Like so many things, such as the all-consuming surveillance that affect our society, the idea of the government and social media working collaboratively to censor arose out of concerns over terrorism post-9/11, specifically that ISIS and others were using social media to recruit. Government agencies would point out offending posts and its proxies in social media would remove them. It all seemed for the good. But “the deep state planted a seed of suppression by government censorship, but that seed was fertilized, germinated and grew rapidly once President Biden took office,” Missouri Attorney General Andrew Bailey said.
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It is unclear at exactly what point the government assumed editorial responsibility for “calling out false speech,” or what WaPo calls “coordination” with social media. It is unclear at what point the government felt it could climb astride the First Amendment to control what Americans read. It is unclear why social media companies would so casually hand over responsibility such that a phone call from a DOJ bureaucrat could secretly kill a line of inquiry or thought online.
Elon Musk sought to make a similar case to the injunction regarding censorship with the release of internal messages detailing the debates that executives had before he took over Twitter last year. The messages he released, called the Twitter Files, offered a peek inside the company’s interaction with government and law enforcement to restrict prominent accounts. They included revelations about the internal debate at Twitter over blocking links to New York Post articles about Hunter Biden in 2020. The Files show employees (specifically, the Site Integrity Policy-Policy Escalation Support team) were tasked with suppressing the visibility of accounts or subjects deemed undesirable or dangerous, with and without government's help, all in secret. Musk called Twitter “both a social media company and a crime scene.”
There was no stopping this censorship until now, with this injunction and the litigation to follow. The ultimate outcome could help decide whether free speech and an open market of ideas has a future online, or, in the words of the New York Times, “the First Amendment has become, for better or worse, a barrier to virtually any government efforts to stifle a problem.”