TGIF: Free Speech Affirmed -- Pretty Much

The preliminary injunction against federal censorship of social-media users has survived the Biden administration's appeal. However, it remains on hold until Sept. 22 while the Supreme Court considers the matter.

The latest ruling, 78 pages long, by a panel of Fifth Circuit Court of Appeals judges, affirmed the core of District Judge Terry Doughty's July 4 preliminary order, but the revised order has two big differences. The appellate judges exempted some defendants and narrowed Judge Doughty's list of prohibited actions to just one modified but broad prohibition. We'll have to see how that works out, but the court has certainly admonished Biden officials for censoring Americans' speech by systematically leaning -- sometimes very heavily -- on the social-media companies.

The New Civil Liberties Alliance (NCLA), which represented some of the plaintiffs, commented, "Today’s order should stop that conduct."

Recall that Judge Doughty's ruling in the suit filed by Missouri and Louisiana on behalf of its residents, along with several private individuals, including COVID-19 dissident Drs. Jay Bhattacharya and Martin Kulldorff. Doughty had agreed that the plaintiffs had shown that the federal government, through repeated contacts with social-media personnel, had perpetrated “arguably the most massive attack against free speech in United States history.” He likened the Biden administration's efforts to "an Orwellian Ministry of Truth.”

The upshot of the ruling is that when the government "suggests" to Facebook or X that certain posted material is, well, unhelpful, concerning, or even dangerously misleading, it constitutes implicit censorship in violation of the First Amendment. Why? Because some government officials are in a position to punish (through antitrust action, civil-liability rules, or regulation) uncooperative parties. Therefore, even recommendations or pleas to remove or suppress posts necessarily carry a veiled threat. In the present case, the appellate judges write, the threats were sometimes stark naked.

It is well-established in law that what the government may not do directly -- say, block expression -- it may not do indirectly, such as by pressuring private companies to in effect censor.

The judges' panel recapped the findings:

For the last few years—at least since the 2020 presidential transition—a group of federal officials has been in regular contact with nearly every major American social-media company about the spread of “misinformation” on their platforms. In their concern, those officials—hailing from the White House, the CDC, the FBI, and a few other agencies—urged the platforms to remove disfavored content and accounts from their sites. And, the platforms seemingly complied. They gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed users. The platforms also changed their internal policies to capture more flagged content and sent steady reports on their moderation activities to the officials. That went on through the COVID-19 pandemic, the 2022 congressional election, and continues to this day.

Enter this lawsuit. The Plaintiffs—three doctors, a news website, a healthcare activist, and two states—had posts and stories removed or downgraded by the platforms. Their content touched on a host of divisive topics like the COVID-19 lab-leak theory, pandemic lockdowns, vaccine side effects, election fraud, and the Hunter Biden laptop story. The Plaintiffs maintain that although the platforms stifled their speech, the government officials were the ones pulling the strings—they “coerced, threatened, and pressured [the] social-media platforms to censor [them]” through private communications and legal threats.

The judges pointed out in great detail that the "platforms were apparently eager to stay in the officials’ good graces" and did not just wait for suggestions about stifling dissent. That sounds like the Stockholm syndrome. But their efforts to please their overseers weren't always enough: "The officials were often unsatisfied. They continued to press the platforms on the topic of misinformation throughout 2021." A powerful thirst can be hard to quench.

The judges reversed the injunction against three defendants: the National Institute of Allergy and Infectious Diseases (which Anthony Fauci ran until he retired), the State Department, and the Cybersecurity and Infrastructure Security Agency. The judges wrote: "We find the district court erred in enjoining these other officials. Put simply, there was not, at this stage, sufficient evidence to find that it was likely these groups coerced or significantly [encouraged] the platforms."

The White House, the Surgeon General, the CDC, and the FBI continue to be enjoined.

A preliminary injunction, of course, aims at future behavior, which the government unsurprisingly objects to. In rejecting the defendants' appeal, the judges responded refreshingly, "The district court found that the Plaintiffs submitted enough evidence to show that irreparable injury [from First Amendment violations] is likely to occur during the pendency of the litigation."

Put another way, the district and appellate judges do not believe the executive branch when it says in effect, "We didn't do it, and we promise never to do it again."

As for the modification of Judge Doughty's prohibitions, the judges found that his list had too many vague and overlapping items. So it struck down all but one and modified it. The edited version now reads:

Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.

That looks pretty good, doesn't it? We'll see how all this works out in practice. The next move is the Supreme Court's.

 

 

TGIF: Shame on Government for Censoring Us

Alas, federal District Judge Terry A. Doughty's preliminary injunction against government censorship of us on social media has been put on hold.

So rules three members of the Fifth Circuit Court of Appeals. But this stay of the injunction in State of Missouri et al. v. Joseph R. Biden Jr. et al. is temporary. NBC News reported a couple of weeks ago that "a different panel drawn from the [same appellate] court, which has 17 active members, will hear arguments on a longer stay." The matter could be resolved quickly though because the three judges "called for arguments in the case to be scheduled on an expedited basis."

So for now, however, we're back where we started. Judge Doughty had turned down the government's first request that the injunction be put on hold, writing,

Defendants argue that the injunction should be stayed because it might interfere with the Government’s ability to continue working with social-media companies to censor Americans’ core political speech on the basis of viewpoint. In other words, the Government seeks a stay of the injunction so that it can continue violating the First Amendment.

You gotta love this guy!

In light of the stay, let's look closely at Judge Doughty's reasons for forbidding federal agencies and personnel from indirectly censoring the public's constitutionally protected speech by pressuring social media to delete or suppress posts they dislike. He spelled out the grounds in great detail in his 155-page ruling.

Recall that the states of Missouri and Louisiana and several private individuals sued the Biden administration, claiming that it is doing what it may not do even indirectly, censoring constitutionally protected speech by putting all sorts of pressure on social-media companies. This was used to silence dissenters whether or not their posts contained true or false information. The posts and links were related to the COVID-19 pandemic, the Hunter Biden laptop, and other subjects. (For background, see my articles here and here.)

Under the First Amendment (and common-sense morality), of course, the government may not censor us directly. The Supreme Court has clearly said that the government also may not require private companies to do censoring for it. Any "request" from the government always carries the implicit threat of reprisal should the recipient of the request say no.

To begin with Doughty's conclusion:

The Plaintiffs are likely to succeed on the merits in establishing that the Government has used its power to silence the opposition. Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; opposition to the lab-leak theory of COVID-19; opposition to the validity of the 2020 election; opposition to President Biden’s policies; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power. All were suppressed. It is quite telling that each example or category of suppressed speech was conservative in nature. This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech. American citizens have the right to engage in free debate about the significant issues affecting the country. Although this case is still relatively young, and at this stage the Court is only examining it in terms of Plaintiffs’ likelihood of success on the merits, the evidence produced thus far depicts an almost dystopian scenario. 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. [Emphasis added.]

The Plaintiffs have presented substantial evidence in support of their claims that they were the victims of a far-reaching and widespread censorship campaign. This court finds that they are likely to succeed on the merits of their First Amendment free speech claim against the Defendants.

Note that he twice says the Plaintiffs are likely to succeed in their suit. That's one of the criteria for a preliminary injunction while a case is still in progress. Should the plaintiffs lose, his injunction would be null and void. But given the subject -- the First Amendment and free speech -- Doughty is pretty sure they are not going to lose. He also was persuaded by the plaintiffs that if he did not stop the government right now, "irreparable harm" would ensue.

Doughty opened his opinion with this:

This case is about the Free Speech Clause in the First Amendment to the United States Constitution. The explosion of social-media platforms has resulted in unique free speech issues—this is especially true in light of the COVID-19 pandemic. If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history. In their attempts to suppress alleged disinformation, the Federal Government, and particularly the Defendants named here, are alleged to have blatantly ignored the First Amendment’s right to free speech. [Emphasis added.]

This is remarkable. Since Doughty thinks the plaintiffs are likely to prevail, he must also agree that the case "involves the most massive attack against free speech in United States’ history."

If you wonder whether that's an exaggeration, peruse the judge's ruling. It details the offenses and justifies the application of his injunction to each of the named defendants. It's breathtaking.