This Fourth of July, while fireworks illuminated the night sky above the Washington Monument in celebration of the cherished freedoms guaranteed to us as Americans, the judicial system bequeathed to us by the Founding Fathers was considering novel threats to those very freedoms. Judge Terry Doughty issued a preliminary injunction to block the Biden Administration from communicating with social media companies about removing or suppressing specific user posts that “contain protected free speech.” On Wednesday, the Biden administration notified the court that it plans to appeal the ruling.
The ruling prevents the Biden administration from “meeting with social media companies,” “specifically flagging content or posts on social-media platforms,” “forwarding [flagged content or posts] to social-media companies,” “emailing, calling, sending letters, texting, or engaging in any communication of any kind with social-media companies,” “threatening, pressuring, or coercing social-media companies in any manner” or “requesting content reports” in order to “remove, delete, suppress, or reduce content containing protected speech.” The ruling included exemptions for national security, law enforcement, and criminal voter suppression. The ruling is far from bulletproof and does not rely on the strongest precedent the. Nonetheless, this case carries important implications for the future of free speech online, as government jawboning is the greatest modern threat to free speech.
At this point, there can be little doubt the administration has used the pretext of COVID and “election interference” to suppress political opposition on social media. That there has not been a more dramatic reaction to the revelations in the Twitter Files is somewhat unnerving. Additionally, the administration has sent IRS agents on unannounced visits to the homes of disfavored individuals, most notably investigative journalist who reported the Twitter Files, Matt Taibbi. Ironically, the visit occurred while he was testifying about Biden’s attempts to subtly censor opposition.
Since Biden’s inauguration, the administration has deployed jawboning in unprecedented ways to spread their preferred, partisan messaging on divisive political matters. The House Judiciary Subcommittee on the Weaponization of the Federal Government found as recently as last week that a “little-known Homeland Security sub-agency” considered establishing a “rapid response team” to localities so election officials could dispel “mis-, dis- and mal-information related threats.” In other words, an American Ministry of Truth. Unfortunately, this rapid response team represents only the latest attempt by the administration to establish an online thought police. In May 2021, the Biden Administration stood up the eerily-named Disinformation Governance Board, which they were forced to shut down only a few months later after public outcry over the suspicious motivations of the agency.
With all of this in mind, it is difficult to conclude that the Biden administration’s motives are pure or that social media companies are not under pressure from the bureaucrats that regulate them to censor any posts that defy Democratic Party messaging. And when that censorship effort leads to brazen government-driven pressure campaigns against businesses, such as the FBI sending multiple follow-up emails to Twitter employees pushing them to delete specific posts, the First Amendment has been violated. Biden’s agencies are engaged in a full-court press on censorship. To protect our constitutional right to free speech, we must restrict communications between government agents and social media companies. As the ruling allows, legitimate law enforcement actions should be excepted, but targeting accounts for merely dissenting from the government’s narrative on the origins of COVID, what Hunter Biden has been getting up to around the world, and just how hysterical one should be about climate change is indefensible.
Disturbingly, most legacy media organizations have criticized this ruling as an “activist judicial opinion.” While it is true that a court ruling is not the best way to rectify this problem and Congress should pass strong legislation to this effect, the censorship regime is on-going, and Judge Doughty has legitimate grounds to protect the free speech rights of American citizens. Furthermore, arguments that this decision will endanger lives or inhibit law enforcement are dubious at best. As we’ve mentioned, the ruling carves out legitimate law enforcement and national security activities that involve working with social media companies. For example, the ruling allows for the executive to contact or notify social media companies of national security threats, “criminal efforts to suppress voting,” and “foreign attempts to influence elections,” along with other limited use cases. However, they can only approach platforms for the purpose of “deleting, removing, suppressing or reducing” such posts if the posts “are not protected free speech by the Free Speech Clause in the First Amendment to the United States Constitution.”
This exception is sound. If a post falls outside the broad category of protected free speech under the First Amendment, the Biden administration has every right to request that social media companies remove that uniquely dangerous or illegal post from their platforms in order to avoid its dissemination. Advocating violence against a specific individual or the violent overthrow of the government, for example, is not protected. The only weakness to the exception is that it might be overbroad – “national security” was the pretext for all COVID-related censorship under both the Trump and Biden administrations.
Overall, this ruling is a win for free speech, but it does not negate the need for more legislation in this arena. For example, Congress may need to impose accountability measures and limits on the executive branch’s use of their notification powers to indirectly jawbone companies. Even if the Biden administration cannot directly request companies to take down disfavored speech, that will not stop them from using their powers and the bully pulpit from making that message abundantly clear.
On May 5, 2021, White House Press Secretary Jen Psaki linked President Biden’s position that “there’s more that needs to be done to ensure that…misinformation, disinformation, damaging and sometimes life-threatening information, is not going out to the American public” to his support for “better privacy protections and a robust antitrust program.” Privacy protections are designed to keep users safe online. A robust antitrust program ensures that economic competition serves the welfare of consumers. Neither of these goals have any direct link to protecting the public against “dangerous” speech. The subtext, however, was clear: if companies do not erase the speech that the government deems to be misinformation from their platforms, the government will suffocate them with regulations or break them up. Currently, the Biden administration can continue making these veiled threats to drive their invidious agenda of censorship. Congress must stop these practices before they are used to further undermine the integrity of the First Amendment. To this end, the House of Representatives has already acted by passing the Protecting Speech from Government Interference Act. The Senate should take up this bill with all due haste, as it prohibits contact between government censors and social media companies and institutes a robust reporting regime that applies Hatch Act penalties to enforce the prohibition. An injunction, at the end of the day, is a temporary measure. Free speech deserves a stronger champion.