Federal Judge Destroys the Government's Argument in Favor of Censorship and Educates Them on the First Amendment

On Independence Day, a federal district judge in Louisiana handed down one of the most critical decisions defending the First Amendment in several decades. In an exhaustive 155-page opinion, Trump-appointed Judge Terry Doughty in the Western District of Louisiana handed the government a scathing rebuke along with an injunction as he made it clear that the plaintiffs in State of Missouri vs. Biden would prevail on almost all areas. My colleague Bonchie had the initial coverage when the decision came down on Tuesday, see Republicans Rack up a Big Win Against Biden and for Free Speech in Missouri. This post will give you more of an idea of the significance.

You sort of had an idea where this was going with the opinion starts with Voltaire.

I may disapprove of what you say, but I would defend to the death your right to say it.

Evelyn Beatrice Hill, 1906, The Friends of Voltaire

The Defendants

The list of defendants looks like someone photocopied pages from a phonebook.

Defendants consist of President Joseph R Biden (“President Biden”), Jr, Karine Jean-Pierre (“Jean-Pierre”), Vivek H Murthy (“Murthy”), Xavier Becerra (“Becerra”), Dept of Health & Human Services (“HHS”), Dr. Hugh Auchincloss (“Auchincloss”), National Institute of Allergy & Infectious Diseases (“NIAID”), Centers for Disease Control & Prevention (“CDC”), Alejandro Mayorkas (“Mayorkas”), Dept of Homeland Security (“DHS”), Jen Easterly (“Easterly”), Cybersecurity & Infrastructure Security Agency (“CISA”), Carol Crawford (“Crawford”), United States Census Bureau (“Census Bureau”), U. S. Dept of Commerce (“Commerce”), Robert Silvers (“Silvers”), Samantha Vinograd (“Vinograd”), Ali Zaidi (“Zaidi”), Rob Flaherty (“Flaherty”), Dori Salcido (“Salcido”), Stuart F. Delery (“Delery”), Aisha Shah (“Shah”), Sarah Beran (“Beran”), Mina Hsiang (“Hsiang”), U. S. Dept of Justice (“DOJ”), Federal Bureau of Investigation (“FBI”), Laura Dehmlow (“Dehmlow”), Elvis M. Chan (“Chan”), Jay Dempsey (“Dempsey”), Kate Galatas (“Galatas”), Katharine Dealy (“Dealy”), Yolanda Byrd (“Byrd”), Christy Choi (“Choi”), Ashley Morse (“Morse”), Joshua Peck (“Peck”), Kym Wyman (“Wyman”), Lauren Protentis (“Protentis”), Geoffrey Hale (“Hale”), Allison Snell (“Snell”), Brian Scully (“Scully”), Jennifer Shopkorn (“Shopkorn”), U. S. Food & Drug Administration (“FDA”), Erica Jefferson (“Jefferson”), Michael Murray (“Murray”), Brad Kimberly (“Kimberly”), U. S. Dept of State (“State”), Leah Bray (“Bray”), Alexis Frisbie (“Frisbie”), Daniel Kimmage (“Kimmage”), U. S. Dept of Treasury (“Treasury”), Wally Adeyemo (“Adeyemo”), U. S. Election Assistance Commission (“EAC”), Steven Frid (“Frid”), and Kristen Muthig (“Muthig”).

The primary agencies involved are the White House, CDC, the FBI, the National Institute of Allergy and Infectious Diseases (NIAID), the Cybersecurity and Infrastructure Security Agency (CISA), and the State Department through the Global Engagement Center (GEC), the National Science Foundation’s Election Integrity Partnership (EIP), and Stanford University’s Virality Project. The EIP, GEC, and Virality Project and their involvement in curbing impure thoughts by the lumpenproletariat had never registered with me before.

The Issues

In this case, Plaintiffs allege that Defendants suppressed conservative-leaning free speech, such as: (1) suppressing the Hunter Biden laptop story prior to the 2020 Presidential election; (2) suppressing speech about the lab-leak theory of COVID-19’s origin; (3) suppressing speech about the efficiency of masks and COVID-19 lockdowns; (4) suppressing speech about the efficiency of COVID-19 vaccines; (5) suppressing speech about election integrity in the 2020 presidential election; (6) suppressing speech about the security of voting by mail; (7) suppressing parody content about Defendants; (8) suppressing negative posts about the economy; and (9) suppressing negative posts about President Biden.

Most of these allegations are well known to those following our government’s branching out into throttling free speech. I have to admit I was not aware of the last three classes of suppression of speech. While I understand, though in no way sympathize with, the impulse to inveigle Americans to take part in a large-scale clinical trial of an untested vaccine and not to resist the stupid social contact rules created during 2020, the only reason for suppressing parodies of federal officials and negative economic news is totalitarianism.

Key Finding

Judge Doughty demolished the government’s claim that this was a harmless, voluntary collaboration with social media companies. On page 98 of the opinion, the judge lays out a litany of what can only be described as orders from the federal government to social media companies. Here is White House “Digital Director” (sort of a creepy title given Biden’s fingering and sniffing fetishes) Rob Flaherty to Facebook, “I want an answer on what happened here, and I want it today.” There were insinuations that unless the social media companies got with the program…fast… Section 230 was in jeopardy, and the Justice Department’s Anti-Trust Division might decide that more scrutiny of Big Tech was needed.

These actions are just a few examples of the unrelenting pressure the Defendants exerted against social-media companies. This Court finds the above examples demonstrate that Plaintiffs can likely prove that White House Defendants engaged in coercion to induce social-media companies to suppress free speech.

With respect to 47 U.S.C. § 230, Defendants argue that there can be no coercion for threatening to revoke and/or amend Section 230 because the call to amend it has been bipartisan. However, Defendants combined their threats to amend Section 230 with the power to do so by holding a majority in both the House of Representatives and the Senate, and in holding the Presidency. They also combined their threats to amend Section 230 with emails, meetings, press conferences, and intense pressure by the White House, as well as the Surgeon General Defendants. Regardless, the fact that the threats to amend Section 230 were bipartisan makes it even more likely that Defendants had the power to amend Section 230. All that is required is that the government’s words or actions “could reasonably be interpreted as an implied threat.” Supp. 3d at 114. With the Supreme Court recently making clear that Section 230 shields social- media platforms from legal responsibility for what their users post, Gonzalez v. Google, 143 S. Ct. 1191 (2023), Section 230 is even more valuable to these social-media platforms. These actions could reasonably be interpreted as an implied threat by the Defendants, amounting to coercion.

As many of us have futilely argued with the “muh private companies” Conservatives, once the federal government gets involved in shaping online speech, you are dealing with federal action against the First Amendment, not with a commercial entity refusing to carry your speech.

The judge goes on to state:

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.”

And he sums it up very neatly.

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.

Why It Is Important

By far and away, the greatest service Judge Doughty performed for the nation was laying out why, even with the best intentions, the federal government cannot control what Americans say.

The principal function of free speech under the United States’ system of government is to invite dispute; it may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Texas v. Johnson, 109 S. Ct. 2533, 2542–43 (1989). Freedom of speech and press is the indispensable condition of nearly every other form of freedom. Curtis Pub. Co. v. Butts, 87 S. Ct. 1975, 1986 (1967).

The following quotes reveal the Founding Fathers’ thoughts on freedom of speech:

For if men are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away, and dumb and silent we may be led, like sheep, to the slaughter.

George Washington, March 15, 1783.

Whoever would overthrow the liberty of a nation must begin by subduing the free acts of speech.

Benjamin Franklin, Letters of Silence Dogwood.

Reason and free inquiry are the only effectual agents against error.

Thomas Jefferson.

The question does not concern whether speech is conservative, moderate, liberal, progressive, or somewhere in between. What matters is that Americans, despite their views, will not be censored or suppressed by the Government. Other than well-known exceptions to the Free Speech Clause, all political views and content are protected free speech.

Here, though, the judge gets to the heart of the issue.

The problem with labeling certain discussions about COVID-19 treatment as “health misinformation” was that the Surgeon General Defendants suppressed alternative views to those promoted by the government. One of the purposes of free speech is to allow discussion about various topics so the public may make informed decisions. Health information was suppressed, and the government’s view of the proper treatment for COVID-19 became labeled as “the truth.” Differing views about whether COVID-19 vaccines worked, whether taking the COVID-19 vaccine was safe, whether mask mandates were necessary, whether schools and businesses should have been closed, whether vaccine mandates were necessary, and a host of other topics were suppressed. Without a free debate about these issues, each person is unable to decide for himself or herself the proper decision regarding their health. Each United States citizen has the right to decide for himself or herself what is true and what is false. The Government and/or the OSG does not have the right to determine the truth.

Each United States citizen has the right to decide for himself or herself what is true and what is false.

If there is one thing that we’ve learned from the COVID experience, it is that our public health bureaucracy is wildly incompetent and seemingly unacquainted with American society or history. I wrote a lot on COVID in 2020, particularly about the stupidity of wearing masks, and there is nothing I wrote that was more inaccurate than anything the government was saying. In fact, much of it was much more accurate because I passed eighth-grade biology.

Once the government is allowed to create an Overton Window containing authorized questions and comments, we’ve ceased to exist as a republic.

Where to Next?

The ball is in the government’s court at this point. Will they appeal to the Fifth Circuit or drop the issue? I can’t see the agencies involved in this grotesque assault of the First Amendment saying, “Oh, well, win some, lose some.” This virtually guarantees that the case ends up before the Supreme Court and based on the majority opinion in the student loan decision (BREAKING: SCOTUS Rules Against Biden Administration on Student Loan Forgiveness), the government taking it upon itself to interfere with the Constitution because they had good thoughts is not a strong legal argument.