Missouri and Louisiana have set out to prove the Biden administration has been illegally censoring conservative speech.
On Thursday, they’re going to court to put a stop to it.
A three-judge panel of the U.S. 5th Circuit Court of Appeals in New Orleans will hear arguments from the two states and the U.S. Department of Justice as to whether an injunction should stand that prevents Biden administration collusion with Big Tech social media companies.
U.S. District Court Judge Terry Doughty issued the injunction July 4. When the DOJ appealed, a three-judge panel at the 5th Circuit paused his injunction on July 14. On Thursday a different three-judge panel will hear arguments over whether the injunction should go back into effect until the case plays out in the months or years to come.
That means the decision on the injunction could have a profound impact on how free and robust our online political debate is during the 2024 election cycle.
Missouri Attorney General Andrew Bailey is confident the injunction will prevail and the Biden administration will be prohibited from interfering in otherwise lawful online commentary.
“What the (injunction) merely says is that the Biden administration is prohibited from coordinating with Big Tech social media platforms to target political speech protected by the First Amendment,” Bailey told The Heartlander Tuesday.
“So, really, all the court order says is that the federal government is enjoined from violating the constitutional rights of Americans. And so, that’s why we feel there’s a high likelihood of success at the hearing on Thursday – because the court merely aligned its order with what the Constitution prohibits anyway.”
The injunction being debated Thursday blocks a number of government agencies and officials from “encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
The Biden administration complains that the 155-page injunction is overbroad and vague. Bailey has a simple answer for that.
“What they’re saying there is that they don’t understand the United States Constitution. If the court merely said don’t violate the Constitution and the Department of Justice is saying, ‘Well, we don’t know (exactly) how that limits us,’ then they don’t understand constitutional law and they shouldn’t be attorneys.”
The Biden administration also claims there’s a “grave” danger to the public in not allowing the government to police what it deems “misinformation.”
But Bailey notes Judge Doughty found the Department of Justice “utterly failed to adduce a single piece of evidence” showing such harm, and that no lawful activity is prohibited by his injunction.
Bailey adds that evidence so far in the case has established that the speech being censored is protected by the First Amendment; that much of what the administration called “misinformation” turned out to be true; and that “the government exclusively targeted speech that was in opposition to Joe Biden, so it’s (illegal) viewpoint discrimination.”
Moreover, Bailey says, the administration has threatened Big Tech with antitrust action and the stripping away of the companies’ legal protections under Section 230 of the Communications Decency Act. He says the evidence includes “emails from March, April and May of 2021 from the White House Communications Office to Big Tech social media, specifically targeting speech and demanding increased censorship.”
Evidence also shows that Biden administration demands for censorship exceeded internal policies at Facebook.
“That clearly establishes the coercion and the collusion,” Bailey told The Heartlander, adding that “the federal government is not allowed to do through an intermediary what it would be prohibited from doing directly.”
How important is the injunction, especially with the 2024 president election looming?
Ominously, Bailey says, when Judge Doughty asked DOJ lawyers at a May hearing if it would violate the First Amendment for the government to censor those who question the legitimacy of an election, they responded, “It depends.”
“In other words,” Bailey says, “the Department of Justice equivocates as to whether or not speech related to an election is political speech. Clearly that is protected political speech. We have a right to discuss the integrity of our election process and our candidates and any political ideas free of government censorship.”
Whether we actually do have that right going forward depends largely on the outcome of Thursday’s hearing.
In an interview with The Heartlander just after the judge’s July 4 injunction order, Bailey argued Missouri and its co-plaintiffs in the case are “erecting a wall of separation between tech and state to protect Americans’ rights to free speech on Big Tech social media platforms.” He said the court’s injunction, which is now at risk, was “the first brick of that wall.”
Bailey maintains he and his Missouri v. Biden co-plaintiffs have “uncovered the worst First Amendment violations in this nation’s history.”
Judge Doughty seems to agree, writing in his July 4 injunction decree, “If the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history.”
“During the COVID-19 pandemic,” the judge wrote, “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 reference is to George Orwell’s dystopian novel 1984, in which an overarching “Big Brother” government sought to control thought and speech.
“The evidence in our case is shocking and offensive,” Louisiana Attorney General Jeff Landry wrote in a statement after the injunction, “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.”