A Major Blow Against Censorship

As Scott noted this morning, Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana has granted plaintiffs’ motion for a preliminary injunction, barring various Biden administration officials from communicating with social media companies for the purpose of suppressing free speech.

This is a massively important case. Plaintiffs included the states of Missouri and Louisiana and several individuals. Plaintiffs alleged that various agencies of the Biden administration, including the White House, CDC, the FBI and others, have coerced tech companies into censoring conservative views on a variety of topics. In order to grant the plaintiffs’ motion for a preliminary injunction, Judge Doughty had to find that they are likely to ultimately prevail on the merits. Thus, his 155-page Memorandum lays out in considerable detail the evidence of government censorship that plaintiffs have developed. This came, I take it, through discovery that was directed at the social media companies.

This is the standard that Judge Doughty applied. Citations are omitted:

The State (i.e., the Government) can be held responsible for a private decision only when it has exercised coercive power or has provided such “significant encouragement,” either overt or covert, that the choice must be deemed to be that of the State. Mere approval or acquiescence in the actions of a private party is not sufficient to hold the state responsible for those actions. …
In evaluating “significant encouragement,” a state may not induce, encourage, or promote private persons to accomplish what it is constitutionally forbidden to accomplish. Additionally, when the government has so involved itself in the private party’s conduct, it cannot claim the conduct occurred as a result of private choice, even if the private party would have acted independently. Further, oral, or written statements made by public officials could give rise to a valid First Amendment claim where the comments of a governmental official can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.

You really have to read the Memorandum to get the full impact of the evidence plaintiffs have marshaled, but it clearly convinced the Court, who described the actions at issue as “arguably the most massive attack against free speech in United States history.” Here are just a few examples of the kind of government coercion that plaintiffs have uncovered:

On April 9, 2021, Facebook responded to a long series of detailed questions from [Rob Flaherty, former Deputy Assistant to the President and Director of Digital Strategy] about how WhatsApp was censoring COVID-19 misinformation. Facebook stated it was “reducing viral activity on our platform” through message-forward limits and other speech-blocking techniques. Facebook also noted it bans accounts that engage in those that seek to exploit COVID-19 misinformation.

Flaherty responded, “I care mostly about what actions and changes you are making to ensure you’re not making our country’s vaccine hesitancy problem worse,” accusing Facebook of being responsible for the Capitol riot on January 6, 2021, and indicating that Facebook would be similarly responsible for COVID-related deaths if it did not censor more information. “You only did this, however, after an election that you helped increase skepticism in, and an insurrection which was plotted, in large part, on your platform.”
Things apparently became tense between the White House and Facebook after that, culminating in Flaherty’s July 15, 2021 email to Facebook, in which Flaherty stated: “Are you guys fucking serious? I want an answer on what happened here and I want it today.”

This, too, is pretty direct:

On October 29, 2021, Facebook asked federal officials to provide a “federal health contract” to dictate “what content would be censored on Facebook’s platforms.” Federal officials informed Facebook that the federal health authority that could dictate what content could be censored as misinformation was the CDC.

Some of the censorship related to various aspects of covid-19 and responses thereto, such as the attacks on vaccine skeptic Alex Berenson:

Twitter suspended Berenson’s account within a few hours of President Biden’s July 16, 2021 comments. On July 17, 2021, a Facebook official sent an email to Anita B. Dunn (“Dunn”), Senior Advisor to the President, asking for ways to “get back into the White House’s good graces” and stated Facebook and the White House were “100% on the same team here in fighting this.”

Much of the censorship related to covid, but there were other topics as well, such as global warming. Biden officials repeatedly threatened legal action of various kinds against social media companies if they failed to do the administration’s bidding by censoring conservative voices on, for example, global warming:

At an Axios event entitled “A Conversation on Battling Misinformation,” held on June 14, 2022, the White House National Climate Advisor Gina McCarthy (“McCarthy”) blamed social-media companies for allowing misinformation and disinformation about climate change to spread and explicitly tied these censorship demands with threats of adverse legislation regarding the Communications Decency Act.

As is well known, the FBI played a key role in the 2020 presidential election by suppressing information about Joe Biden’s corruption. Those facts are laid out in some detail in the Memorandum, and a question I have long had is answered:

Before the Hunter Biden Laptop story breaking prior to the 2020 election on October 14, 2020, the FBI and other federal officials repeatedly warned industry participants to be alert for “hack and dump” or “hack and leak” operations.

Yoel Roth (“Roth”), the then-Head of Site Integrity at Twitter, provided a formal declaration on December 17, 2020, to the Federal Election Commission containing a contemporaneous account of the “hack-leak-operations” at the meetings between the FBI, other natural-security agencies, and social-media platforms. Roth’s declaration stated:

Since 2018, I have had regular meetings with the Office of the Director of National Intelligence, the Department of Homeland Security, the FBI, and industry peers regarding election security. During these weekly meetings, the federal law enforcement agencies communicated that they expected “hack-and-leak” operations by state actors might occur during the period shortly before the 2020 presidential election, likely in October. I was told in these meetings that the intelligence community expected that individuals associated with political campaigns would be subject to hacking attacks and that material obtained through those hacking attacks would likely be disseminated over social-media platforms, including Twitter. These expectations of hack-and-leak operations were discussed through 2020. I also learned in these meetings that there were rumors that a hack-and-leak operation would involve Hunter Biden.

The mention of “hack-and-leak” operations involving Hunter Biden is significant because the FBI previously received Hunter Biden’s laptop on December 9, 2019, and knew that the later-released story about Hunter Biden’s laptop was not Russian disinformation.
Even after Facebook specifically asked whether the Hunter Biden laptop story was Russian disinformation, Dehmlow of the FBI refused to comment, resulting in the social-media companies’ suppression of the story.

Emphasis added. There is much, much more in Judge Doughty’s Memorandum. This is his conclusion on the evidence:

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.

I am not sure, procedurally, where this case will go from here. Assuming the government agencies appeal, the 5th Circuit Court of Appeals would get the case. After that, potentially, the case could make its way to the Supreme Court.

To some extent, while the parties cited various cases in support of or in opposition to the motion for a preliminary injunction, we are in uncharted waters. There has never been a campaign of censorship like the one that has been alleged and proved here, nor have we had companies like Facebook, Twitter et al. that have such practical control over the news that reaches Americans. The fate of the case depends on the strength of the facts showing government coercion or encouragement that plaintiffs have been able to develop. Having read Judge Doughty’s opinion, I think the facts would amply support affirmance of the Court’s order by our current Supreme Court.

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