UPDATE July 11, 2023: Judge Terry Doughty in the U.S. District Court for the Western District of Louisiana on Monday rejected the Biden administration’s motion for a stay of his historic July 4 preliminary injunction preventing the administration from pressuring Big Tech to censor Americans.
Two days after Doughty issued the injunction, the Biden administration filed a motion begging for relief, arguing that “they face irreparable harm with each day the injunction remains in effect.” The administration claimed that “the injunction’s broad scope and ambiguous terms may be read to prevent the [administration] from engaging in a vast range of lawful and responsible conduct.”
Doughty ruled, however, that the preliminary injunction is already narrowly-tailored. It “only prohibits what [the administration’s agencies] have no right to do—urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of any content containing protected free speech on social-media platforms.”
He denied the motion for a stay because the federal government’s arguments against the injunction are already addressed in the injunction itself, which explicitly allows government agencies to speak on social media, to contact Big Tech companies for criminal investigations, and to otherwise lawfully engage with them.
The federal government is still likely to appeal this decision to the 5th U.S. Circuit Court of Appeals.
ORIGINAL July 5, 2023:
On the Fourth of July, a federal judge condemned the Biden administration’s collusion with Big Tech companies to suppress Americans’ free speech as “similar to an Orwellian ‘Ministry of Truth’” and issued a historic order temporarily blocking the federal government from pressuring tech companies to stifle speech.
“It is fitting that the judge granted a first-of-its-kind injunction on the Fourth of July because that day paved the way for our country to adopt the First Amendment,” Missouri Attorney General Andrew Bailey, a Republican, told The Daily Signal in a statement Wednesday. “We had to fight the Revolutionary War in part because King George tried to stamp out political dissent. Now, the Biden administration is trying to censor speech he disagrees with. Fortunately, and thanks to the brave Founders on the Fourth of July, we now have the First Amendment to push back against the Biden administration’s censorship regime.”
“It could not be more perfect timing,” Louisiana Solicitor General Liz Murrill, a Republican, told The Daily Signal in a phone interview Wednesday. “I can’t ever recall such a sprawling government enterprise to censor American speech being unraveled in this manner.”
Bailey and Murrill are leading the case Missouri v. Biden, and they celebrated Judge Terry Doughty’s ruling in U.S. District Court for the Western District of Louisiana on Tuesday.
“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,’” Doughty wrote. His ruling included a preliminary injunction, barring federal officials from colluding with Big Tech companies to suppress free speech.
Gene Hamilton, vice president of America First Legal, which represents two plaintiffs in the case against the Biden administration, told The Daily Signal he did not consider it a “coincidence” that Doughty issued the order on July Fourth.
“It’s a monumental decision for the American people—a great day for all Americans,” Hamilton said in a phone interview Wednesday. “It was a great, great Fourth of July.”
“It was only appropriate for this decision to be rendered on Independence Day,” he added. “It’s a reaffirmation of our enduring principles on which our country was founded.”
“The Biden administration has made combating ‘mis-,’ ‘dis-,’ and ‘malinformation’ a high priority,” Hamilton added. “They appear to view it as a systemic threat to the existence of democracy when nothing could be further from the truth. The solution to ‘mis-’ and ‘disinformation’ and false information is simply the truth and more information, and letting people draw their own conclusions.”
The lawyer also said he had never heard of another judge issuing an injunction to prevent the federal government from directing Big Tech to suppress speech online.
Doughty’s ruling notes that the plaintiffs in the case—Missouri and Louisiana, represented by Bailey and Murrill; doctors who spoke out against the COVID-19 mandates, such as Martin Kulldorff, Jayanta Bhattacharya, and Aaron Kheriaty; Gateway Pundit founder Jim Hoft; and anti-lockdown advocate and Health Freedom Louisiana Co-Director Jill Hines—allege that the Biden administration “suppressed conservative-leaning free speech” on the Hunter Biden laptop story ahead of the 2020 presidential election; on COVID-19 issues, including its origin, masks, lockdowns, and vaccines; on election integrity in the 2020 presidential election; on the security of voting by mail; on the economy; and on President Joe Biden himself.
Doughty’s injunction names various federal agencies—including the Department of Health and Human Services, the National Institute of Allergy and Infectious Diseases (the agency Dr. Anthony Fauci formerly directed), the Centers for Disease Control and Prevention, the FBI, the Department of Justice, and the State Department—and officials, including HHS Secretary Xavier Becerra, Surgeon General Vivek Murthy, and White House press secretary Karine Jean-Pierre.
It forbids those people and agencies 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”; from flagging posts for removal or suppression; from encouraging censorship; and from contacting Big Tech companies via email, phone, or letters for such purposes.
It also specifically bars collaboration with third-party organizations aiming at urging social media companies to suppress forms of speech. It also bars the Biden administration from notifying Big Tech firms to “be on the lookout” for posts containing protected free speech.
The injunction does not restrict government agencies from all collaboration with Big Tech companies, however. It does not prohibit agencies from flagging posts involving criminal activity, or from notifying them of national security threats, malicious cyber activity, or criminal efforts to suppress voting or influence elections. It also expressly allows the administration to post “permissible public government speech” online.
Hamilton, the America First Legal attorney whose firm represents Hoft and Hines, argued that the injunction’s carve-outs for specific government interaction with Big Tech firms would return the relationship to the status quo before the Biden administration.
“There’s no First Amendment right to engage in criminal conduct,” he noted. “It’s still totally fine for the government to point out to a social media company, ‘It turns out you have some child porn from this user,’ or that there’s a drug trafficker using your platform to communicate.”
“Those are natural functions of government,” Hamilton explained. “Most folks would understand this is the role that the government used to play with social media companies online” before the Biden administration weaponized it.
The judge’s order does not represent a complete win for the defendants, however. It denies plaintiffs a “class determination,” which would have included far more people in the lawsuit.
“It was unfortunate that he didn’t certify a class,” Murrill, the solicitor general of Louisiana, told The Daily Signal. “I think that part of the ruling is disappointing.”
Both Hamilton and Murrill predicted that the Biden administration will file a motion to “stay” the injunction, likely followed by an appeal to the 5th U.S. Circuit Court of Appeals.
Murrill also condemned the censorship “enterprise” the Biden administration set up. She likened it to the government’s targeted silencing of people loosely associated with the Communist Party under Sen. Joe McCarthy, R-Wis., in the 1950s.
“Here, you basically see a similar enterprise being set up, targeting predominantly conservative speech, but the enterprise doesn’t know political boundaries,” she warned. “Once the structure’s in place, the structure can be weaponized by anybody in power.”
“It turns the Constitution on its head,” Murrill declared. “It flagrantly violates the First Amendment rights of everyone in this country.” She further noted that when Americans challenge the Biden administration on this, “their answer is not to pull back on violating people’s rights; it’s to defend the enterprise. It’s to double down on speech as dangerous.”
The solicitor general cited Jen Easterly, the director of the Cybersecurity and Infrastructure Security Agency, who called it “really, really dangerous if people get to pick their own facts.”
“So, in her view, government needs to pick those facts for us,” Murrill said. “It ought to shock everyone’s conscience that they’re so willing to unapologetically violate our constitutional rights and then turn around and tell us it’s good for us, that they know better.”
She emphasized that the federal government circumvented “that pesky First Amendment” by making Big Tech companies “agents of the government.”
The White House did not respond to The Daily Signal’s request for comment by publication time.
Bhattacharya, the doctor who opposed COVID-19 lockdowns and led the Great Barrington Declaration, found himself on a Twitter Trends blacklist for his medical guidance on combating the pandemic. As evidence of government collusion with Twitter came out in the Twitter Files, Bhattacharya wrote, “I learned in a very concrete and painful way the effects of Washington and Silicon Valley working together to marginalize unpopular ideas and people to create an illusion of consensus.”
In January, as part of this lawsuit, Bailey, the Missouri attorney general, unearthed documents in which Facebook told the White House that it suppressed “often-true content” that might discourage Americans from taking COVID-19 vaccines.
On the 2020 election, Doughty wrote that Easterly’s Cybersecurity and Infrastructure Security Agency and the third-party Election Integrity Partnership are “completely intertwined.” The Election Integrity Partnership reported “misinformation” to social media platforms, helping the federal government pressure Big Tech to silence speech.
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