Missouri’s historic injunction against Biden administration censorship of online conservative speech, upheld by an appeals court Friday, sets the rules of engagement for the 2024 election decidedly in favor of free speech.
That’s the assessment of an exultant Missouri Attorney General Andrew Bailey, whose office worked with the AG in Louisiana to first secure the injunction July 4, then successfully defend it before the U.S. 5th Circuit Court of Appeals. The injunction bars the White House and Department of Justice from communicating with Big Tech social media platforms about content moderation until the states’ lawsuit against the administration is adjudicated.
The ruling most importantly protects online speech in advance of the 2024 presidential election.
The appeals court’s unanimous 3-0 decision is more muted, and represents a narrower injunction against the administration, than the trial court’s July 4 order. But the appeals court nonetheless was stunning in its conclusion that the courts have “rarely been faced with a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life.”
“It is a landmark decision,” Bailey told The Heartlander in an exclusive interview Monday, calling the Biden’s censorship regime “the worst First Amendment violations in this nation’s history.”
The appeals court agrees, he says.
“If you put that in historical context, go back to this nation’s founding,” Bailey said. “In 1798 under just our second president, John Adams, the Federalists enacted the Alien and Sedition Act to imprison anyone who questioned the federal government’s foreign policy. And yet, the 5th Circuit Court of Appeal says that this case is worse than that.
“This is the bulwark in the defense of our right to discuss elections free, fairly and openly.”
But while the appeals court’s Friday ruling did make headlines, it hasn’t garnered nearly the attention it should, Bailey argues.
“The mainstream media have put their heads in the sand like ostriches. For people who so benefit from the First Amendment right to freedom of the press and freedom of speech, they are eerily silent on the import of this case.
“There’s this attitude that, ‘Well, when there’s a national emergency that justifies censorship in violation of the First Amendment.’ That is consistent with the arguments that the Department of Justice made in court when we were arguing in favor of the preliminary injunction. That’s also consistent with what the governor of New Mexico (Michelle Lujan Grisham) has said most recently in issuing an executive order to curtail firearm ownership.
“But the problem is, during times of national crisis is when we must remain most vigilant in our protection of our constitutional rights. A national emergency can’t justify a violation of rights, because the national emergencies will never end. They’ll just conjure up some new emergency to justify it.”
The “lamestream” media have spun a false narrative, Bailey says, that the Biden administration merely suggested content censorship online.
“The court rejected that completely and said that there was always an unspoken ‘or else’ — that there were both expressed threats and implicit threats through the use of the inherent authority of the office of the White House and the law enforcement authority of the FBI.
“Moreover, let’s get specific. The court found that Big Tech changed its terms-of-service policies at the demand of the White House. They changed their algorithms to satisfy the federal officials’ demand. That’s where the rubber hits the road.”
The appeals court’s injunction, unlike the trial court’s, leaves out any prohibitions against social media communications from the National Institute of Allergy and Infectious Diseases, the State Department, and the Cybersecurity and Infrastructure Security Agency (CISA). Bailey said CISA is “the most notable agency” left out of the injunction. He said his office is reviewing the implications of that as the lawsuit now proceeds in full.
What if former President Donald Trump had been accused of such censorship?
“I think that’s the problem, is the hypocrisy of the left, that they think that they have the right to censor disinformation, misinformation or mal-information,” Bailey says. “I reject that notion. What is and isn’t true is up for free, fair and open debate amongst the people. We get to determine what we believe in and what we don’t.
“I would also point out that the court identified that all the speech censored in this case, in fact, was truthful speech.
“But it’s much worse than that, because what the government has done is censor one viewpoint. Anyone in opposition to Joe Biden and his failed policies is the subject of government censorship. So, this is viewpoint discrimination.
“This was not a one-off ‘Hey, they deleted a tweet or took down a post or shadow-banned someone.’ It was an orchestrated campaign.
“The first brick in the wall of separation between tech and state has been laid. And we’re going to keep fighting to build that wall. We got a preliminary injunction based on preliminary discovery. Now we get to the merits of the case. Now we do real discovery into the merits of the claims.
“And so, it’s not over. And our ability to obtain relief against additional federal agencies remains on the table.”