The Feds Get Their Knuckles Rapped on Censorship
A lesson in First Amendment rights
Bill of Rights
On the 247th anniversary of America’s Independence Day, Judge Terry A. Doughty of the US District Court of the Western District of Louisiana (Monroe Division) issued a major preliminary injunction against the US government in the Covid censorship lawsuit brought by the attorneys general of Missouri and Louisiana (and others). The government was enjoined and restrained from “meeting with social-media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms,” and related actions cited in the ruling posted here.
There is more to the story than a single federal judge’s ruling on the Fourth of July. Let us examine the topic.
THE JUDGE’S INJUNCTION
The symbology of Judge Doughty’s ruling on Independence Day cannot by understated. The federal agencies and individuals listed in the injunction cited an extra-constitutional power to fight misinformation and disinformation as rationale for coercing private social media companies to censure the free speech rights guaranteed under the First Amendment. The feds’ censorship actions were similar to King George III’s diktats resulting in “taxation without representation” and other arbitrary actions taken against American colonists that precipitated the drafting of the Declaration of Independence by Thomas Jefferson and its signing by 56 American patriots on July 4, 1776. The censorship actions by the federal government in 2021-2023 were the actions of a central government that is disconnected from the citizenry and from foundational documents enshrined in the US Constitution that constrain the powers of the central government and executive branch from acting arbitrarily.
A particularly poignant and direct statement in the judge’s Missouri et al vs. Biden et al ruling was directed against government efforts aimed at “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech” (emphasis added). This is a clear endorsement of the rights granted to all Americans under the First Amendment that have been sustained, endorsed, and defined by several judicial rulings over the years, as noted here.
While not the final decision in the case, the injunction of course provides insight into the thinking of the presiding judge, which bodes well for the plaintiffs and all other advocates of free speech and First Amendment Rights in the US. The judge made this statement in issuing his ruling, according to the New York Post: “During … 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.’” Needless to say, an “Orwellian Ministry of Truth” is a pointed barb at the censorship actions of the federal government and a tough hill for the government to climb in their future attempts to persuade the judge.
THE LEGISLATIVE BRANCH WEIGHS IN
While the headlines have been captured by Judge Doughty’s ruling – with apoplectic commentary in The Washington Post, CNN, and other media allies of the administrative state – much less attention has been paid to the interim report released by the House Judiciary Committee and the Select Subcommittee on the Weaponization of the Federal Government on 26 June that details how the Cybersecurity and Infrastructure Security Agency (CISA) expanded its original mission to protect pipelines and other critical infrastructure in the US from cyberattacks to surveil and censor Americans' speech on social media.
Here are a few key points from the report that dovetail with Judge Doughty’s preliminary injunction:
Established in 2018, CISA has “metastasized into the nerve center of the federal government’s domestic surveillance and censorship operations on social media.” [This is the typical mission creep that infects all federal agencies, but in this instance reflects the hyper-weaponization of the Dept of Homeland Security by the Biden administration.]
CISA is “working with federal partners to mature a whole-of-government approach” to curbing alleged misinformation and disinformation. [This amounts to the feds working in concert to violate the First Amendment rights of Americans.]
CISA moved its censorship operation to a CISA-funded non-profit after CISA and the Biden Administration were sued in federal court. [This effort to camouflage direct government involvement in censorship is a virtual admission that its censorship activities are unconstitutional.]
Labeling speech “misinformation” does not strip it of First Amendment protection. That is so even if the speech is untrue, as “[s]ome false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation,” as determined in United States. v. Alvarez, 567 U.S. 709, 718 in 2012. [And the ultimate determiner of truth and falsehood resides with the individual, not the government.]
In refusing to carve out a First Amendment exception for “false” speech, the Framers of our Constitution recognized the significant danger in making the government the ultimate arbiter of truth. [The Framers always sided with individuals and states over the central government, as the US Constitution was expressly written to limit federal powers by specifically stating the specific powers of the government, with all unspecified powers left to “the People.”]
The government may not “induce, encourage, or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” [This is exactly what the plaintiffs allege in “Missouri et al vs. Biden et al”]
Any law or administrative policy that impedes the ability of users to speak freely on privately owned social media platforms violates the First Amendment. [A slam dunk!]
As the report discussed, CISA has clearly facilitated the censorship of Americans directly and through third-party intermediaries – social media companies and others. These are direct violations of the First Amendment.
CONCLUDING THOUGHTS
The creeping authoritarianism of the federal government manifested in the weaponizing of federal agencies against American citizens has been dealt a temporary body blow by Judge Doughty’s preliminary injunction against various elements of the administrative state. The evidence presented indicates that federal agencies violated the US Constitution by suborning private individuals and entities to do what the feds could not in suppressing free speech.
There is a two-pronged attack on the federal government’s constitutional overreach via the lawsuit in progress and the investigation of CISA and potential restorative actions by the House Judiciary Committee.
These are great indications that our constitutional Republic has not yet been consigned to the dustbin of history by the authoritarian left.
The end.