Speaking of the First Amendment: Did Missouri v. Biden Really End in a Victory for the First Amendment?

​The recent consent decree signed by the parties that settled Missouri v. Biden has been hailed by civil libertarians as a “major blow against social media censorship,” signaling that “Free Speech Wins Big in Court.”
 
Kenin Spivak in RealClearPolitics says, “not so fast.”
 
Missouri v. Biden (formerly Murthy v. Missouri) combined lawsuits filed by the attorneys general of Louisiana and Missouri with claims of several leading health care professionals. After a serpentine trip through the courts, including a remand from the Supreme Court to lower courts, the case has ended with that consent decree. Along the way, an egregious pattern of secret government censorship was exposed.
 
Spivak reports that the case revealed that 80 senior Biden officials and at least 11 federal agencies, including the White House, pressured social media companies into censoring conservative speech. Spivak writes:
 
“Underscoring the left’s strange and newly formed view that the First Amendment somehow does not protect ‘misinformation,’ ‘disinformation,’ or ‘malinformation’ (truthful information that nonetheless undermines the approved policy agenda), in 2021, CISA (Cybersecurity and Infrastructure Security Agency) director Jen Easterly claimed that social media speech is a form of ‘infrastructure’ that fell within her agency’s purview, and that Americans should not be allowed to make their own decisions about what is true.”
 
Spivak lists censorship targets that included YouTube’s suspension of The Hill newspaper for posts that included Donald Trump’s speech at the CPAC conference, Sen. Ted Cruz, actor James Woods, The New York Post, the Babylon Bee satirical site, and many more.
 
These facts landed hard in court. On July 4, 2023, federal judge Terry A. Doughty issued a preliminary injunction that blocked numerous federal agencies from communicating with social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.” These included government requests to social media companies to delete posts that were critical of President Biden, gasoline prices, climate change, and social issues.
 
The judge likened the government’s actions to George Orwell’s Ministry of Truth from 1984.
 
One would hope that, in the face of such a massive violation of the First Amendment, the consent decree would arrive like the famous Apple MacIntosh TV ad in 1984, in which an athletic woman hurls a sledgehammer into Big Brother’s screen. Judging from Spivak’s account, the consent decree was more like a hurled paperclip.
 
The consent decree, Spivak writes, is “powerful-sounding pap” in which, for ten years, the Surgeon General, CDC, and CISA will refrain from threatening Facebook, Instagram, X, LinkedIn, or YouTube “with some form of punishment (i.e., an adverse legal, regulatory, or economic government sanction)” to remove or deemphasize protected speech.
 
Not included were other bad actors, including the Department of Homeland Security, the Justice Department, the State Department, and the FBI. The decree does not cover other social media companies or those that may arise in the next decade. It includes vague and easily exploited exceptions for “criminal activity” and “national security” that may leave the named plaintiffs vulnerable.
 
We would add that refraining from threatening is a weak standard – one that fails to account for the reality that in such “jawboning” explicit threats are often unnecessary when government officials issue demands to heavily regulated industries.
 
“The First Amendment and Americans have lost an opportunity that may not recur for a strong permanent injunction that would have been nearly impossible to amend, modify, or avoid,” Spivak writes. “Instead, we got press releases.”
 
Read his full piece here.

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