Judge’s order blocking Biden-Big Tech censorship spurs free-speech debate

A federal judge’s momentous Fourth of July order barring the federal government from colluding with Big Tech to suppress speech triggered an object lesson in how one person’s free expression is another person’s misinformation.
 
Conservatives hailed the temporary injunction granted by U.S. District Judge Terry A. Doughty as a victory for the First Amendment and a blow against state-directed censorship. Critics warned the ruling could chill government interactions with tech firms and spur the spread of false narratives.
 
Applauding the holiday ruling in Missouri v. Biden were Missouri Attorney General Andrew Bailey and Louisiana Attorney General Jeff Landry, who brought the legal challenge filed in May 2022 in U.S. District Court for the Western District of Louisiana.
 
“This injunction is a huge win in our court battle against the largest First Amendment violation in American history,” Mr. Bailey said in a statement on Wednesday.
 
The Justice Department said Wednesday it would appeal the decision by Judge Doughty, who ordered the White House and multiple federal agencies, including the FBI, the Justice Department and Centers for Disease Control and Prevention, to cease working with platforms to suppress content pending the outcome of the First Amendment lawsuit.

The judge, a Trump appointee, didn’t pull his punches, saying if the allegations made by the attorneys general of Louisiana and Missouri are true, “the present case arguably involves the most massive attack against free speech in United States’ history.”
 
Examples of alleged censorship cited in the order include opposition views on the pandemic shutdowns and mask orders; the COVID-19 lab-leak theory; vaccine mandates; 2020 election integrity; President Biden’s policies, and the validity of reports about Hunter Biden’s laptop.
 
“It is quite telling that each example or category of suppressed speech was conservative in nature,” said Judge Doughty in the 155-page order. “This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech. American citizens have the right to engage in free debate about the significant issues affecting the country.”
 
He said the evidence presented in the case “depicts an almost dystopian scenario,” particularly during the pandemic, when “the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’”
 
The judge also found that the plaintiffs “are likely to succeed on the merits in establishing that the Government has used its power to silence the opposition.”
 
White House Press Secretary Karine Jean-Pierre said Wednesday that the Justice Department is reviewing the injunction, which names nine federal agencies and more than 30 officials and staffers, among them Ms. Jean-Pierre herself.
 
She also pushed back against the ruling, saying the White House disagrees with the judge and that “we’re going to continue to promote responsible actions … to make sure that we protect public health, to make sure that there is safety and security.”
 
Others named in the order include Homeland Security Department Secretary Alejandro Majorkas and Health and Human Services Secretary Xavier Becerra.
 
“Big win for FREE SPEECH. Big loss for the censorship industrial complex,” said House Judiciary Committee Chairman Jim Jordan, Ohio Republican.
 
Those disagreeing with the judge’s decision included law professors Leah Litman and Laurence H. Tribe, who accused the judge of curtailing the government’s freedom to speak in the name of protecting free speech.
 
“Invoking the First Amendment, a single district court judge effectively issued a prior restraint on large swaths of speech, cutting short an essential dialogue between the government and social media companies about online speech and potentially lethal misinformation,” said the professors on the Just Security blog.
 
Sen. Eric Schmitt, Missouri Republican who helped prepare the case as the state’s former attorney general, quipped that “King George believed the Declaration of Independence was ‘misinformation.’”
 
Tulane history professor Walter Isaacson predicted on MSNBC that “the decision will be refined somewhat, because government has to have the right to have its own free speech, to push back when they see things on social media they think are dangerous.”
 
Others took issue with the idea of protecting the government’s use of free speech to censor the speech of others.
 
“This concept of the ‘government’s own free speech’ is one of the worst things the courts have cooked up yet – an utter distortion of the First Amendment,” tweeted First Amendment lawyer Ron Coleman.
 
The media reaction largely split along conservative and liberal lines. The New York Times warned that the ruling “could curtail efforts to fight disinformation,” a theme sounded by other left-tilting outlets.
 
“This is a truly astonishing ruling that will compromise the health, safety, and yes, liberty of some so others can spread false, harmful information in the name of free speech,” said Lisa Rubin, MSNBC legal analyst, on Twitter.

The Washington Post worried that the “Trump-appointed judge’s move could upend years of efforts to enhance coordination between the government and social media companies.”
 
Judge Doughty was also accused of judicial activism in engaging in what critics called an effort to micromanage interactions between the federal government and tech companies.
 
“Here’s what really is astonishing to me: This is a conservative ideology that clearly comes through in this decision,” said CNN legal analyst Elie Honig. “We saw some of the quotes questioning vaccines, questioning masks – conservative talking points – but the ruling itself is the opposite of judicial conservatism. This is one of the most aggressive, far-reaching rulings you’ll ever see.”
 
Praising the decision were Stanford professor Jay Bhattacharya, Harvard professor Martin Kulldorff, and author Alex Berenson, prominent lockdown skeptics whose views challenging the pandemic response were muzzled on social media. Mr. Bhattacharya and Mr. Kulldorff were plaintiffs in the case.
 
“Huge news in the Missouri vs. Biden case! A federal judge has told the federal government to stop using social media companies to censor ideas it doesn’t like,” Mr. Bhattacharya tweeted. “The Biden Administration’s war on free speech just took a huge hit.”
 
Vivek Ramaswamy, a candidate for the 2024 Republican presidential nomination, said the ruling shows the federal government cannot “deputize private actors to do through the back door what it can’t do under the First Amendment.”
 
“[I]f it’s state action in disguise, the Constitution still applies,” tweeted Mr. Ramaswamy. “When we first made this legal argument in Jan 2021, we were derided as conspiracy theorists. Now the courts are on our side. That’s what I call progress.”