Free Speech Limits in the Balance as DOJ Pursues Appeal of Big Tech Censorship Case

A keyboard is placed in front of a displayed Facebook logo in an illustration taken on Feb. 21, 2023. Dado Ruvic/Illustration/Reuters

The Biden administration on Thursday filed a motion to stay a preliminary injunction in which various government agencies were prohibited from continuing their meeting or contacting social media companies in regard to the removal of content.

“The Government faces irreparable harm with each day the injunction remains in effect,” the defendants state. They assert the injunction was so broad as to prevent the agencies from responsible and lawful actions, requesting a stay while the defendants sought to appeal so that the government agencies could continue instructing social media platforms.

Case files revealed an extensive cross-agency effort to influence Big Tech companies, and massive influence such as a 70 percent watch rate reduction on certain topics, and the defendant’s filings make clear the Biden administration’s intention to continue such an operation.

On July 4, U.S. District Court Judge Terry Doughty ruled that several government agencies, including the Department of Justice (DOJ), Centers for Disease Control and Prevention, the State Department, the Department of Homeland Security (DHS), and other White House and federal agencies had made a “massive effort ... to suppress speech based on its content.”

Being a preliminary injunction, the decision isn’t final. The plaintiffs, which include the states of Missouri and Louisiana as well as several private individuals, want to pursue a class action lawsuit and will proceed with merits discovery and depositions.

“What we have to do now is root out the entirety of this censorship enterprise,” said Missouri Attorney General Andrew Bailey on American Thought Leaders. “COVID was really just the Trojan horse to get the enemy behind the walls, but we know for a fact that this censorship has spread.”

20,000 Pages of Discovery

The context for this case is the massive amounts of information about COVID-19 that began circulation with the onset of the pandemic.

Posts ranging from calls to open public schools to discussions on the science of natural immunity to posts making fun of public officials were targeted for removal and retaliation by government officials. Within the 20,000 pages of documents are several colorful exchanges between companies like Facebook and Twitter and government officials.

These messages revealed what power the federal employees wielded in this arena, often responding to apologies and deference on the part of the tech companies with even more demands (pdf).  When Facebook assured Rob Flaherty, former Deputy Assistant to the President and Director of Digital Strategy, that it had implemented measures to remove certain claims about COVID-19 and vaccines, Flaherty demanded the inner workings and statistics of these algorithms and policies and emailed the following day accusing Facebook of causing “political violence” by letting groups continue to circulate some COVID-19 related information.

The effort to pull down posts and deplatform users was constant.

A February 2021 exchange between Twitter and the White House detailed how Twitter had been so “bombarded” with requests from federal agents that it wanted to work out a more streamlined process to receive them. Mr. Flaherty had suggested regular, bi-weekly meetings with YouTube to cooperate even after the platform had “reduced watch time by 70% on borderline content, which is impressive” (pdf).

On June 26, a week before the Biden administration was ordered to stop contact with social media companies, Congress released a report (pdf) detailing collusion between government agencies and Big Tech to censor Americans and how they covered it up.

The House Judiciary Committee and the Select Subcommittee on the Weaponization of the Federal Government pointed at the Cybersecurity and Infrastructure Security Agency (CISA) within the DHS as a main facilitator of such censorship, and suggested the agency knew its work was unconstitutional because it had moved some operations to non-profits it funded and internal emails about the agency’s “pretty obvious vulnerabilities.”

In the July 4 preliminary injunction, Mr. Doughty wrote that the agencies and officials named in the suit are prohibited from meeting with or urging, encouraging, pressuring, inducing in any manner the companies to remove, delete, suppress, or reduce content containing protected speech, nor flag content on platforms for these purposes.

It also stated that the injunction did not prohibit interactions with social media companies regarding postings of criminal activities, national security threats, or criminal efforts to affect elections.

‘Responsibility’

The DOJ’s notice of appeal states its intention to continue the fight in the 5th U.S. Circuit Court of Appeals in New Orleans.

“Our view remains that social media platforms have a critical responsibility to take action or to take account of the effects of their platforms are having to the American people but make independent choices about the information they present,” White House Press Secretary Karine Jean-Pierre said Wednesday. “We’re going to continue to be responsible in that way.”

Similar cases have been brought against the government in Texas and Florida.

Russel Weaver, Professor of Law and Distinguished University Scholar at the University of Lousiville, wrote a handbook on free speech and changing technology nearly a decade ago, which is in the process of being updated to its third edition. He recently authored two papers on the topic of disinformation and free speech that have been submitted for journal publication.

Disinformation is real, and it is everywhere, Mr. Weaver says. The problem extends far beyond social media because politicians will lie, the media will spin facts, and everyday people can parrot a misleading line they believe is fact.

“Do we really trust the government to define disinformation?” he said in a phone call with The Epoch Times. Getting the government out of social media management would ultimately be a good thing, because administrations change, agendas change, and even if something is done out of what you believe is goodwill today, it may be of malicious motive tomorrow.

“Free speech will deal with itself,” said Mr. Weaver, who says he disagrees with the elitist view that suggests the average person is stupid and must be protected from information. “People are not stupid.”

Professor Steven Collis, director of the Bech-Loughlin First Amendment Center, said the government certainly has a right to counter what it deems disinformation, but not through censorship.

“The government has speech rights as well. It can certainly use its own speech to combat misinformation and to get its message out. Its actions become problematic when it uses its power to censor speech by threatening punishment of social media companies if they don’t comply with its wishes. Under the First Amendment, the government may not do indirectly through threats to social media companies what it may not do directly,” he said in an email to The Epoch Times.