A Louisiana federal judge’s temporary injunction against the federal government’s extensive censorship operation is one of the most consequential decisions in First Amendment jurisprudence in 200 years, according to Aaron Siri, managing partner at Siri & Glimstad.
Doughty ordered key players and departments prominent during COVID and the 2020 election, such as the National Institute of Allergy and Infectious Diseases, the Department of Health and Human Services, the Centers for Disease Control and Prevention (CDC), and the Federal Bureau of Investigation (FBI), to cease “threatening, pressuring, or coercing” social media companies to “remove, delete, suppress, or reduce posted content of postings containing protected free speech.”
“If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history,” Doughty writes. “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.”
Mr. Siri called the ruling a testament to the three branches of government and their effectiveness when they are each working as they should.
Since March 2020, Gorsuch said, America underwent one of “the greatest intrusions on civil liberties in the peacetime history of this country,” an intrusion carried out by lockdowns and mandates, all in the name of public health.
“While executive officials issued new emergency decrees at a furious pace, state legislatures and Congress—the bodies normally responsible for adopting our laws—too often fell silent,” Justice Gorsuch said. “Courts bound to protect our liberties addressed a few—but hardly all—of the intrusions upon them. In some cases, like this one, courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking-by-litigation.”
Having a robust judicial branch is critical to protecting the rights of the people and restraining the executive branch from engaging in overreach, Mr. Siri said.
“Under the basic rights of free speech assembly, for the most part, judges in the country did not protect those rights,” Mr. Siri said.
‘Opposition To Ruling: Radical Conspiracy Theory’
Michael Waldman, a former speechwriter for the Clinton administration and president of the Brennan Center for Justice, criticized the ruling, calling it “radical” and rooted in “the conspiracy theory idea that somehow the government has been censoring social media and keeping conservative voices off.”Despite both Mr. Mitchell and Ms. Waldman claiming that the injunction prohibits any communication between social media companies and the federal government in relation to national security, the ruling, in fact, does allow for each entity to correspond about those potential threats.
Mr. Waldman stated that the ruling leaves government entities in a state of not knowing what is allowed and having to cancel meetings with social media companies.
Mr. Siri, who also discussed the canceled meetings between the executive branch and social media companies, asked, “Why would you have to cancel them if they don’t violate order?”
The executive branch, or defendants, requested a stay that Judge Doughty denied, Mr. Siri said.
“Basically, they went back to the judge and said, ‘Please let us continue violating the First Amendment,’” Mr. Siri said.
Overreach: The Greatest Harm
Among the arguments the defendants made was that the “alleged suppression of social-media content occurred in response to the COVID-19 pandemic and attacks on the election infrastructure” are in the past.However, what was found in the discovery, Judge Doughty writes, shows a continuing effort to censor that could carry on into the future.
“Although the COVID-19 pandemic is no longer an emergency, it is not imaginary or speculative to believe that in the event of any other real or perceived emergency event, the Defendants would once again use their power over social-media companies to suppress alternative views,” Judge Doughty writes. “And it is certainly not imaginary or speculative to predict that Defendants could use their power over millions of people to suppress alternative views or moderate content they do not agree with in the upcoming 2024 national election.”
In response to the defendants’ claim of “irreparable harm” if they aren’t permitted to restrict free speech, Mr. Siri said, “They always say that.”
“Rare is the case where the government when it says it wants to do something and a judge says you can’t that their response isn’t, ‘Well, you’re going to cause irreparable harm,’” Mr. Siri said.
However, if one observes history, Mr. Siri said, it’s been the overreach of government that has caused the most destruction.
“The greatest harm has always been when those in power can’t persuade you on the merits, when they can’t get you to do what they want based on simple logic and reason alone, they engage in censorship, bullying, mandates,” Mr. Siri said. “And that’s basically what the government wants. Now, since they weren’t able to convince the public through basic influence, they want to censor.”
The American experiment itself rejects the idea that a central authority—whether it be the executive branch, king, or dictator—should be allowed to decide for an individual what is right for that person, Mr. Siri said.
Globally, countries that are the most repressed are the ones where central authority is not allowing individuals to make their own decisions, Mr. Siri stated.
Though taking away the rights of the people might appear to offer a temporary solution to an issue, those powers “are rarely returned,” Mr. Siri said.
“That’s why they’re enshrined in the Bill of Rights and the Constitution, never to be violated, especially in times of fear,” Mr. Siri said.
‘The Repressive Terror of Regimes’
In response to the observation that there are factions of the population and those in leadership roles who believe walking back some civil liberties is a good idea, Mr. Siri shared quotes by Founding Fathers Doughty included in the ruling.Among those quotes was one by Benjamin Franklin from “Letters of Silence Dogwood,” in which he states, “Whoever would overthrow the liberty of a nation must begin by subduing the free acts of speech.”
A quote shared from former President Harry Truman found in the ruling states, “Once a government is committed to the principle of silencing the voice of opposition, it has only one place to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.”
According to Mr. Siri, social media has become the new public square, and by attempting to squash that speech, the federal government took steps toward “the repressive terror of regimes we’ve seen of old.”
‘Fundamentally Important’
One of the significant aspects of the lawsuit is its novel angle of the state government suing the federal government, he said.Mr. Siri said Siri & Glimstad had brought several censorship cases against social media companies, arguing that these companies wouldn’t be censoring if not coerced by the federal government because they make money off their users and wouldn’t want to enact policies that would alienate them.
“And what the court said in almost every one of these cases was you need to bring allegations, some proof that not only the federal government try and say that this type of information should be censored, you have to show that the government specifically asked the social media companies to censor your client,” Mr. Siri said. “Where are you going to get that proof without discovery?”
When Louisiana Attorney General Jeff Landry and former Missouri Attorney General now Sen. Eric Schmitt filed the complaint against the federal government last year, it put the case “on a different posture,” Mr. Siri said.
They had the footing to make arguments and bring claims that a private firm couldn’t, Mr. Siri said, which is why the case is “fundamentally important” because it’s the state government standing up to the federal government.
‘Vast Censorship Enterprise’
Much of the damning evidence found in the lawsuit were the emails of White House staff members demanding that content be removed.For example, Rob Flaherty, the former deputy assistant to the president and director of digital strategy, sent several aggressive emails to Twitter and Facebook staff demanding that they remove posts that questioned election integrity, the COVID narrative, and vaccine safety.
Flaherty accused Facebook of being the platform where what he called the “insurrection,” or the Jan. 6 rally, was planned, and where vaccine hesitancy was being spread, and he called for the removal of conservative voices like Tucker Carlson.
“Not to sound like a broken record, but how much content is being demoted, and how effective are you at mitigating reach and how quickly?” Mr. Flaherty asked Facebook staff.
What Schmitt called censorship, President Joe Biden called “new methods of communication” that were operated “with unparalleled creativity” and “innovative spirit” in a statement on his departure.
‘We’ve Become Soft’
For Mr. Siri, the fundamental rights of Americans are of no value if they are only enforced during easy times, and at their most valuable in the hard times.“We’ve become soft,” Mr. Siri said. “When those rights were written in 1791, they were written for the hard times—of those hard times—a state of living we probably can’t even imagine right now.”
American freedom allows for one to wear a mask, get multiple jabs, and live in the basement in fear, or not, he said.
“But nobody, no government, this government in particular in America, should make anybody have to give up pretty much their entire way of living if they don’t want to,” he said.
