Judge Orders Biden Officials to Limit Contact With Social-Media Companies

From a Wall Street Journal story by Jacob Gershman headlined “Judge Orders Biden Officials to Limit Contact With Social-Media Companies”:

A federal judge issued a broad preliminary injunction limiting the federal government from communicating with social-media companies about online content, ruling that Biden administration officials’ policing of social-media posts likely violated the First Amendment.

In a 155-page ruling issued Tuesday, U.S. District Judge Terry Doughty of Louisiana barred White House officials and multiple federal agencies from contacting social-media companies with the purpose of suppressing political views and other speech normally protected from government censorship.

The judge’s injunction came in a lawsuit led by the Republican attorneys general of Missouri and Louisiana who alleged that the Biden administration fostered a sprawling “federal censorship enterprise” in its effort to stamp out what it viewed as rampant disinformation circulating on social media.

The government, the lawsuit claimed, pressured social-media platforms to scrub away disfavored views about Covid-19 health policies, the origins of the pandemic, the Hunter Biden laptop story, election security and other divisive topics.

A spokesman for the Justice Department declined to comment on the ruling. In a brief previously filed with the court, the department denied the plaintiffs’ allegations and said that the federal government took necessary and responsible actions to deal with a pandemic and foreign attempts at election interference.

The case is among the most potentially consequential First Amendment battles pending in the courts, testing the limits on government scrutiny of social-media content on Twitter, Facebook, YouTube and other major platforms.

Never before has a federal judge set such sweeping limits on how the federal government may communicate with online platforms, according to lawyers involved in the case.

Some legal scholars have been skeptical that the government can be held responsible for content-moderation decisions ultimately made by private companies or that courts could intervene without chilling legitimate government speech about controversial matters of public interest.

The Justice Department is likely to appeal the injunction.

The judge’s Independence Day order is likely to intensify conservative criticisms about internet censorship and the debate over the government’s role in encouraging platforms to remove content that it considers to be misinformation, malicious content or harmful to public health.

“[T]he evidence produced thus far depicts an almost dystopian scenario,” wrote Doughty, an appointee of former President Donald Trump, in his ruling. “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.’”

The judge said the plaintiffs “have presented substantial evidence in support of their claims that they were the victims of a far-reaching and widespread censorship campaign” that he said almost exclusively targeted conservative views.

Missouri v. Biden, as the case is called, is among dozens of so-called censorship-by-proxy lawsuits challenging account suspensions, content removals and other suppression of social-media posts on First Amendment grounds.

The plaintiffs have argued that White House and other government officials bullied social-media companies into suppressing views disliked by the administration—including criticism of mask mandates and objections to Covid-19 vaccination for children—with veiled threats of new regulatory liabilities and antitrust enforcement.

Other courts have rejected similar claims, including in a lawsuit Trump brought against Twitter when it banned him after the Jan. 6, 2021, attack on the Capitol. Twitter’s new owner, Elon Musk, reinstated Trump, but after a federal court threw out Trump’s lawsuit due to in part an absence of evidence that Twitter had banned him at the government’s behest.

Courts have thrown out other lawsuits by censored medical activists, independent journalists and conservative commentators for failing to show that the social-media companies were doing the government’s bidding.

The Missouri v. Biden lawsuit has cast a wider net than other cases, with the states asserting an interest in protecting the speech rights of their citizens.

Doughty also permitted the plaintiffs at an unusually early stage in the case to gather additional evidence, such as email communications between White House officials and social-media companies, and to depose high-ranking government officials including Dr. Anthony Fauci, former director of the National Institute of Allergy and Infectious Diseases.

The judge referred to numerous email exchanges between White House officials and platform executives. In one email to Google employees from April 2021, the White House’s then-director of digital strategy, Rob Flaherty, charged that YouTube was “funneling” people into vaccine hesitancy. “This is a concern that is shared at the highest (and I mean highest) levels of the WH,” he wrote.

The Missouri v. Biden lawsuit alleges the Federal Bureau of Investigation, the State Department’s Global Engagement Center and the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency colluded with social-media platforms “in hundreds of meetings about misinformation” and systematically flagged “huge quantities of First Amendment-protected speech to platforms for censorship.”

Other plaintiffs in the suit include epidemiologists who are authors of the Great Barrington Declaration, an October 2020 open letter critical of Covid-19 government lockdown policies and school closures. They allege that Fauci helped lead a campaign to discredit the declaration and suppress it on social media.

“What a way to celebrate Independence Day,” Missouri Attorney General Andrew Bailey tweeted in response to Tuesday’s ruling. In an earlier interview, Bailey described the case as the “most important First Amendment lawsuit in a generation.”

The Justice Department, representing the government defendants, filed a brief nearly 300 pages long denying the allegations, including that any of the content moderation decisions at issue were the result of government pressure.

“The record in this case shows that the Federal Government promoted necessary and responsible actions to protect public health, safety, and security when confronted by a deadly pandemic and hostile foreign assaults on critical election infrastructure,” the department said.

The department also warned that the proposed injunction sought by the plaintiffs “would significantly hinder the Federal Government’s ability to combat foreign malign influence campaigns, prosecute crimes, protect the national security, and provide accurate information to the public on matters of grave public concern such as healthcare and election integrity.”

Doughty wrote that his order isn’t a blanket ban on government communication with social media. He said agencies could inform platforms about postings involving criminal activity, national security and public-safety threats or content intending to mislead voters about voting requirements and procedures.

Nothing in his order, he wrote, prevents federal agencies from ”exercising permissible public government speech promoting government policies or views on matters of public concern.”

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