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In a landmark ruling Tuesday, a federal judge temporarily barred several Biden administration officials and federal agencies from communicating with social media platforms.
In his 155-page ruling, Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana Monroe Division said there is “substantial evidence” the government violated the First Amendment by engaging in a large-scale censorship campaign targeting content that questioned or countered establishment narratives on COVID-19.
Doughty said the “evidence produced thus far depicts an almost dystopian scenario.”
“If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history. In their attempts to suppress alleged disinformation, the Federal Government, and particularly the Defendants named here, are alleged to have blatantly ignored the First Amendment’s right to free speech. …
“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 granted the injunction as part of a lawsuit filed in May 2022 by the attorneys general of Missouri and Louisiana along with several medical experts and journalists who claimed social media platforms censored their views, which ran counter to the official government narrative.
The lawsuit alleged the Biden administration and federal agencies collaborated with and “significantly encourage[d] Big Tech companies to suppress such speech” by pressuring them to engage in a “censorship-by-proxy scheme.”
Children’s Health Defense (CHD) and its chairman on leave, Robert F. Kennedy Jr., are plaintiffs in a similar case — a class action lawsuit filed in March. The lawsuit, which alleges a “systematic, concerted campaign” of censorship by the Biden administration and federal government, is pending before the same court.
In Tuesday’s ruling (page 17), Judge Doughty referenced Kennedy mentioning the Biden administration’s efforts to remove tweets and other social media content Kennedy posted during the pandemic, and Kennedy’s inclusion in the so-called “Disinformation Dozen” by the Center for Countering Digital Hate and the Virality Project.
Federal judge orders President Biden to stop censoring his critics including me. The decision mentions me on page 17. Happy Independence Day Everyone!https://t.co/nEE40XSjpC
— Robert F. Kennedy Jr (@RobertKennedyJr) July 4, 2023
Commenting on Tuesday’s ruling, Kennedy told The Defender:
“This is one of the most important First Amendment cases in our nation’s history. Missouri v. Biden concerns every American regardless of party affiliation, political ideology, personal beliefs or religion.
“Freedom of speech has been the central foundation stone of our democracy since our nation’s birth. An American president has no right to wield White House power to silence his critics. These actions were anathema to our core American values and a disappointment to all those around the globe who see America as the world’s exemplary democracy.”
Louisiana Attorney General Jeff Landry called the ruling “historic” and said it prevents the Biden administration from “censoring the core political speech of ordinary Americans” on social media.
In a statement shared with The Defender, Landry said:
“The evidence in our case is shocking and offensive, with senior federal officials deciding that they could dictate what Americans can and cannot say on Facebook, Twitter, YouTube, and other platforms about COVID-19, elections, criticism of the government, and more.
“Today’s historic ruling is a big step in the continued fight to prohibit our government from unconstitutional censorship. We look forward to continuing to litigate the case and will vigorously defend the injunction on appeal.”
The injunction names several Biden administration officials and federal agencies, prohibiting them from having any discussions with social media platforms with the purpose of “encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
The ruling does not prohibit the Biden administration and federal agencies from communicating with social media companies regarding criminal activities and potential cyber crimes, national security threats, voter suppression efforts, threats to public safety or other content not protected by free speech.
Agencies named include the U.S. Department of Health and Human Services (HHS), the National Institute of Allergy and Infectious Diseases, the Centers for Disease Control and Prevention, the Department of Justice (DOJ), the U.S. Department of Homeland Security (DHS), the U.S. Department of State and the Cybersecurity and Infrastructure Security Agency.
Administration officials named in the suit include Surgeon General Vivek Murthy, HHS Director Xavier Becerra, DHS Secretary Alejandro Mayorkas, White House Press Secretary Karine Jean-Pierre and all employees of the DOJ and FBI.
Doughty specifically listed Facebook/Meta, Twitter, YouTube/Google, WhatsApp, Instagram, WeChat and TikTok in his ruling, which includes a carve-out allowing the government to communicate with these platforms in relation to posts containing criminal activity or national security threats.
Ruling gains wide applause
In a Twitter post following the ruling, Sen. Eric Schmitt (R-Mo.), who was Missouri’s attorney general when the lawsuit was filed in 2022, said, “Today’s court win is a huge win for the First Amendment and a blow to censorship.”
Missouri Attorney General Andrew Bailey tweeted: “The Court has granted our motion to BLOCK top officials in the federal government from violating the First Amendment rights of millions of Americans.”
Happy birthday America. You get your First Amendment back!!!🇺🇸
— Attorney General Andrew Bailey (@AGAndrewBailey) July 4, 2023
In remarks shared with The Defender, several legal, public health and media experts applauded Doughty’s ruling.
Dr. Aaron Kheriaty, a psychiatrist and director of the Bioethics and American Democracy Program at the Ethics and Public Policy Center who is one of the plaintiffs in the case, told The Defender:
“The United States Constitution is something of a miracle. But unless we defend it, it’s just a piece of paper.
“This case is an important part of that effort, and it’s no accident that the judge released the ruling on the Fourth of July. It’s extremely rare for court rulings to be released on federal holidays. Yesterday’s injunction was an important step on a long road to the Supreme Court … Yesterday’s ruling marks the beginning of the end of the censorship leviathan.”
Responding to Doughty’s statement that “Viewpoint discrimination is an especially egregious form of content discrimination” that goes “beyond party lines,” Kheriaty added:
“Contrary to some of the media framing, This is not a partisan issue. The judge granted our injunction, because what the government has been doing clearly violates the highest law of the land, namely, the United States Constitution.
“It’s not a left/right issue. It’s a legal/illegal issue. The government’s behavior has been criminal. Full stop.”
Kim Mack Rosenberg, acting general counsel for CHD, described Doughty’s ruling as “an important step to restore the fundamental right of every American to not only speak freely but to listen to and analyze a variety of viewpoints.”
“As an American and on behalf of CHD, I am incredibly humbled that Judge Terry Doughty issued his judgment supporting free speech on Independence Day. Free speech is a cornerstone of our Bill of Rights and Judge Doughty has spoken out strongly and bravely in favor of preventing infringement on those rights in this age of social media.
“Truly and sadly, Americans have been deprived of not only their right to speak out about controversial issues — especially in the past three years — but also of the crucially important right to hear and assess various viewpoints on issues essential to our freedoms.”
W. Scott McCollough, an Austin-based internet and telecommunications lawyer, said Tuesday’s ruling was “a shining light.” McCollough said the ruling “recognizes freedom” and that “the government can’t do what it was doing with these social media companies,” which he said have “effectively become government agents.”
Mark Crispin Miller, Ph.D., professor of media studies at New York University, called the decision “good news,” adding, “Under the First Amendment, the government may not collude with corporations — including ‘social media’ companies — to limit the free speech of citizens. To put it more bluntly, such collusion is, quite literally, fascistic.”
Dr. Meryl Nass, a member of CHD’s scientific advisory committee, said that although this case is not yet completed, its ramifications are “tremendously important.”
Nass said revelations coming from this case and from the “Twitter files” expose “the extraordinary, multibillion-dollar-per-year censorship apparatus installed within DHS and outsourced to academic centers, nonprofits and for-profit companies.”
Similarly, independent journalist Paul D. Thacker, who released several installments of the “Twitter files,” told The Defender the ruling also has implications for the collusion of academic institutions with the federal government and social media platforms under the guise of combating “misinformation” and “disinformation.”
“I think what we don’t realize yet is how critical some parts of academia have become to the censorship industry,” Thacker said. “Academia has been harnessed to help censor Americans. I think that’s really being overlooked.”
Technology expert Michael Rectenwald, Ph.D., author of “Google Archipelago: The Digital Gulag and the Simulation of Freedom” and a former New York University liberal studies professor, told The Defender:
“These social media firms have never been strictly private, free-market enterprises. No one can credibly say, ‘but they are private companies; they can censor whatever and whoever they want’ … [when they] have been operated like ventriloquist dummies by the Biden regime.
“As I pointed out over four years ago in ‘Google Archipelago,’ these Big Digital goliaths are state apparatuses and have been since their inception. They are funded by the state, staffed by former state agents, and do the state’s bidding …
“The collusion between the government and these corporations amounts to fascism.”
In an article published in The Gateway Pundit, Jim Hoft, the site’s founder and editor-in-chief, called the ruling an “Independence Day victory,” and said that the federal government has, until now, “been focused on obfuscating and stonewalling evidence on the one hand, and engaging in numerous tactics to extricate itself from the lawsuit.”
“Now that the government lost its main effort to crush us, the real war begins,” Hoft wrote. “Having lost this crucial battle, the Government will be compelled to engage in full, ‘general’ discovery,” a process in which he said the plaintiffs will “conduct a wide-ranging investigation into the Government’s fascist conspiracy with Big Tech.”
A ‘hit’ against ‘White House effort to curb online health misinfo’
No official response has come from the Biden administration or the Big Tech platforms named in the lawsuit as of this writing.
An unnamed White House official told The Associated Press on condition of anonymity that the DOJ “will evaluate its options in this case,“ adding that “This administration has promoted responsible actions to protect public health, safety, and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections.”
“Our consistent view remains that social media platforms have a critical responsibility to take account of the effects their platforms are having on the American people, but make independent choices about the information they present,” the official stated.
Along similar lines, KFF Health News described the ruling as a “hit” against the “White House effort to curb online health misinfo.”
In a tweet, Landry said he expects the federal government to appeal, but that he and Bailey “will aggressively defend” the case.
“We’re not done yet. We’re just getting started,” Landry wrote, adding that the case may eventually be heard before the U.S. Supreme Court.
Judge: Plaintiffs ‘likely to succeed on the merits’
The lawsuit was filed May 5, 2022. New Civil Liberties Alliance, a nonprofit group representing critics of COVID-19 vaccines and restrictions including Drs. Jay Bhattacharya, Martin Kulldorff, Kheriaty and Jill Hines, joined the suit in August 2022, as did Hoft.
The complaint alleges the Biden administration colluded with platforms such as Twitter, Meta, YouTube, Instagram and LinkedIn to “suppress disfavored speakers, viewpoints and content” on topics such as COVID-19, election integrity, and the Hunter Biden laptop scandal, to prevent the spread of “misinformation” and “disinformation.”
Dr. Anthony Fauci and several Biden administration officials provided sworn depositions as part of the ongoing lawsuit.
According to CNN, “Though Doughty hasn’t yet ruled on the merits of the two states’ claims, his order … represents their most significant victory yet in the ongoing lawsuit.”
However, in the memorandum accompanying his ruling, Doughty wrote the plaintiffs are “likely to succeed on the merits in establishing that the Government has used its power to silence the opposition,” adding:
“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.”
Doughty rejected arguments by Biden administration lawyers, who, according to the AP, argued the lawsuit aims to “suppress the speech of federal government officials under the guise of protecting the speech rights of others.”
Government lawyers also claimed the injunction “would significantly hinder” the government’s ability to “provide accurate information to the public on matters of grave public concern such as health care and election integrity.”
Doughty previously refused to dismiss the lawsuit. In a March 20 ruling, he found the plaintiffs’ claims were plausible and worthy of further litigation, allowing the plaintiffs to collect evidence, including emails sent between the White House and social media companies.
“This censorship was encouraged — perhaps even mandated — by the Biden Administration and several key governmental departments,” Doughty wrote in March.
At present, no date appears to have been set for a final ruling regarding the injunction.
In November 2022, CHD and other organizations and individuals moved to intervene in the suit on behalf of the public interest and their respective organizations: CHD, Mercola.com, The Truth About Vaccines and The Truth About Cancer.
Kennedy Dr. Joseph Mercola and Charlene and Ty Bollinger were among the 12 individuals singled out by the Center for Countering Digital Hate as belonging to “The Disinformation Dozen” due to content they shared online regarding vaccines.
They are seeking open public access to critical sworn depositions and documents from the Missouri v. Biden case, already produced on behalf of plaintiffs, for use in other litigation, such as CHD’s March 2023 lawsuit against the Biden administration.
McCollough told The Defender the lawsuit is one of several cases before the courts with significant implications for the future of free speech in the U.S.
These cases include two pending U.S. Supreme Court cases involving Section 230 — which gives internet providers legal protections for hosting, moderating and removing most user content, two cases involving state laws restricting social media censorship, and the ongoing Missouri v. Biden and CHD lawsuits against the federal government.
McCollough said the Supreme Court’s June 30 decision in 303 Creative LLC v. Elenis, which found that the First Amendment prohibited the State of Colorado from compelling a website creator to create a website with messages that violate her values, is “very much connected” to the other ongoing cases.
As a result of the 303 decision and the social media cases which are pending, courts “will finally figure out” what the role of the social media platforms is in regulating speech and working on behalf of the government, he said.
McCollough said the outcome of these cases will “determine where this country goes, whether we will indeed succumb to this global set of societies, all under the thumb of a group of global elites who control information, the economy and every aspect of our lives.”