This past week, Judge Terry A. Doughty detailed the government’s manipulation of social media in a 155-page memorandum. Based on what was presented to the court, he enjoined agencies, officers, and employees from HHS, NAIAD, CDC, FBI, DoJ, White House, OMB, DHS , and DoS from continuing their practices. Those practices, which the judge characterized as “almost dystopian,” included flagging posts and “urging encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech." It also bans their working with the “Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group for the purpose of urging suppression or reduction of content posted with social-media companies containing protected free speech.”
The public officials had threatened the social-media companies with adverse consequences for noncompliance, including reforming Section 230 immunity, antitrust enforcement, and increased regulations if they failed to comply. It’s clear that these tactics allowed the Biden Administration to suppress free speech through proxies, where to have done so directly would have resulted in more immediate scrutiny and judicial halt. The memorandum is a well-documented history of the Administration’s unconstitutional control of information.
While a great deal of the suppression concerned COVID-19’s origin, the government response, and treatments, the judge found it was very wide reaching: suppressing the Hunter Biden laptop story prior to the 2020 election; suppressing speech about the lab-leak origin of COVID-19,the efficacy of masks, lockdowns, and the vaccines; suppressing speech about the integrity of the 2020 election and voting by mail; suppressing even parody content about the Bidens and the administration; suppressing negative posts about the economy and the President himself.
To be sure, the government has some legitimate purposes in monitoring posts which are not violative of the right to free speech. The judge specifically held that the preliminary injunction does not prohibit the defendant agencies, officers and employees from:
(1) informing social-media companies of postings involving criminal activity or criminal conspiracies:
(2) contacting and/or notifying social-media companies of national security threats, extortion, or other threats on its platform;
(3) contacting and/ or notifying social-media of criminal efforts to suppress voting, to provide illegal campaign contributions, of cyber-attacks against election infrastructure, or foreign attempts to influence elections;
(4) informing social-media companies of threats that threaten the public safety or security of the United States;
(5) exercising reasonable government speech promoting government policies or views on matters of public concern;
(6) informing social-media companies of postings intending to mislead voters about voting requirements and procedures;
(7) informing or communicating with social-media companies in an effort to detect, prevent, or mitigate malicious cyber activity;
(8) communicating with social-media companies about deleting, removing, suppressing, or reducing posts on social-media platforms that are not protected free speech by the Free Speech Clause of the First Amendment to the United States Constitution.
This is merely an injunction that is effective only under a full hearing and order in the case, indicating that the court believed the plaintiffs were likely to succeed after a full trial. Nevertheless, the Administration finds so threatening this minimal limit on its power to shut down protected speech that it has filed an immediate appeal.
The most obvious targets at this stage of the case were the infectious disease epidemiologists Jay Bhattacharya and Martin Kulldorff, co-authors of the Great Barrington Declaration (GBD), leaders in the fight against lockdown policies. They expressed concern that lockdowns had damaging effects on physical and mental health, dissented from the views that everyone needed to be vaccinated, that masks protected people from COVID, that it was appropriate to mask young children, and asserted that natural immunity was stronger than vaccine immunity. But states also have an interest in open discussion of alternate views in setting policies. Missouri and Louisiana contended they have a “sovereign and proprietary interest in free speech.” I think that is inarguable. It is, after all, the most significant reason for the First Amendment -- an informed citizenry.
Lest you think this is just partisan wailing by conservatives who were banned or a theoretical discussion of constitutional law, Brett Swanson shows how it had significant, even deadly, consequences:
