Potentially, A Big Win for the 1st Amendment

It has been widely reported that the Biden administration has leaned on tech companies, including social media companies, to censor content with which the administration disagrees. This is not a secret. On the contrary, the administration’s spokespeople have bragged about it, and Congressional Democrats have publicly applied pressure to tech employees, in committee hearings, to censor in accordance with the administration’s preferences.

The social media companies tirelessly tell us that they can engage in censorship because, as private entities, the First Amendment does not apply to them. That is true as far as it goes. However, if the government uses private parties to suppress dissenting opinions, the Constitution is violated.

A number of lawsuits have been brought by various plaintiffs to attack the unholy alliance between the Democratic Party and the social media companies, but so far they have failed, mostly on standing grounds. Which brings us to a lawsuit by the States of Missouri and Louisiana against public officials including, among others, Joe Biden, Anthony Fauci and the Department of Health and Human Services. The case is venued in federal court, in the Western District of Louisiana.

You can read the Complaint at the link. Legal Insurrection has a good description of the case. This is from a Memorandum of Law submitted on behalf of the plaintiffs:

If the White House spokesperson stood at her podium and repeatedly demanded that private booksellers burn certain books that the federal government disfavors, or else face grave legal consequences, everyone would see the First Amendment problem. If federal officials sat in on the editorial board meetings of the New York Times and told them what stories they should run if they want to avoid legal problems, everyone would see the First Amendment problem.

This case is worse than these hypotheticals. Here are the words of Jen Psaki, then-White House spokesperson: “We are in regular touch with these social media platforms, and those engagements typically happen through members of our senior staff…. We’re flagging problematic posts for Facebook that spread disinformation…. We engage with them regularly and they certainly understand what our asks are.” Glenn Decl. Ex. 30, at 9-11 (emphasis added) (Ex. A). The government’s “problematic posts,” id., are those that supposedly contain “disinformation and misinformation, especially related to COVID-19, vaccinations, and elections.” Glenn Decl., Ex. 29, at 15. Along with “members of our senior staff,” Glenn Decl. Ex. 30, at 9, officials at HHS and DHS are coordinating and colluding directly with social-media companies to dictate what Americans can and cannot say on their social-media accounts—and doing so under the everpresent threat of grave legal consequences to those companies if they do not comply….

There is compelling evidence that federal officials, including Defendants here, have adopted an aggressive program to coordinate with private social-media companies to censor and suppress disfavored speech on social media. This is ultra vires and violates the First Amendment.

Plaintiff states have moved for a preliminary injunction and for expedited discovery on issues relevant to their motion. The federal government asserted the usual defenses, but on Tuesday Judge Terry Doughty granted plaintiff states’ motion for expedited discovery. Judge Doughty considered at length and rejected the government’s standing arguments. He concluded his technical discussion with this question:

If Missouri and Louisiana do not have standing under the facts alleged, when would anyone ever have standing to address these claims?

The government’s answer, of course, is never. Its alleged violations of the First Amendment would continue forever, without ever being challenged in court.

Judge Doughty’s order granting expedited discovery is potentially seismic. The plaintiff states can serve document requests and interrogatories on the government agencies, as well as social media companies subject to Rule 45 subpoenas, “seeking the identity of federal officials who have been and are communicating with social-media platforms about disinformation, misinformation, malinformation, and/or any censorship or suppression of speech on social media, including the nature and content of those communications.” [Emphasis added.] The order sets forth a rapid timetable for resolution of any objections and disputes arising out of plaintiffs’ service of those discovery requests.

The upshot is that in the near future–a matter of a few months–we may know the details (or many of them, anyway) of how the Biden administration has leaned on, or conspired with, tech companies to censor disfavored information and opinions. Of course the government will fight these disclosures tooth and nail to try to keep its censorship efforts secret. Or, anyway, as secret as they can be, given that the administration has openly bragged about them, and some have occurred in public forums like committee hearings. But there is far more that has yet to see the light of day.

I have only briefly reviewed some of the pleadings in this case, but it strikes me that the legal work on behalf of Missouri and Louisiana is good–much better than one usually sees in politically-oriented litigation. And Judge Doughty, appointed by President Trump to the federal bench in 2017 and confirmed 98-0 by the Senate, is evidently not reflexively hostile to any challenge to the Biden administration. Who knows? In this case, justice might actually be done.

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