Censorship on trial
The Missouri v Biden lawsuit
Missouri v. Biden has been described as one of the most consequential lawsuits of its time.
Filed by the Attorneys General of Missouri and Louisiana on May 5, 2022, the lawsuit accuses the Biden administration of exerting undue pressure on social media companies in efforts to mitigate disinformation.
Among the plaintiffs are professors who were censored on social media such as psychiatrist Aaron Kheriaty, and epidemiologists Martin Kulldorff and Jay Bhattacharya, cosignatories of the Great Barrington Declaration.
The Court granted their motion for discovery on July 12, 2022, clearing the way for Missouri and Louisiana to gather documents and depose witnesses from the Biden administration under oath, including top-ranking officials such as Anthony Fauci and FBI Special Agent Elvis Chan.
By March 6, 2023, the Attorneys General filed a motion for a preliminary injunction, citing over 1,400 instances where top officials in the Biden administration colluded with, and coerced, social media companies to violate Americans’ right to free speech.
That motion was granted on July 4, 2023 by Federal District Court Judge Terry Doughty, effectively blocking a broad range of federal government officials from communicating with social media companies over content it believed to be misinformation.
“Today’s court order is a huge win for the right to freely speak without government censorship,” said Attorney General Andrew Bailey at the time.
The Biden administration quickly appealed the decision, claiming that channels with social media companies should stay open so that the federal government could help protect the public from threats to election security, covid-19 misinformation, and other dangers.
However, last Friday a three-judge panel in the Fifth Circuit Court of Appeals upheld the preliminary injunction, agreeing that the Biden administration “ran afoul of the First Amendment.”
The 74-page ruling sided with many of the arguments put forward by the plaintiffs. The judges wrote that the White House, acting in concert with the Surgeon General’s office, coerced social media platforms “by way of intimidating messages and threats of adverse consequences.”
They also acknowledged that social media platforms “responded with cooperation—they invited the officials to meetings, roundups, and policy discussions. And, more importantly, they complied with the officials’ requests, including making changes to their policies. The FBI and CDC were also implicated in coercing the platforms to moderate content.
The judges agreed that the fear of the plaintiffs’ self-censorship, was “far from hypothetical.”
"We agree that the Plaintiffs have shown that they are likely to suffer an irreparable injury. Deprivation of First Amendment rights, even for a short period, is sufficient to establish irreparable injury,” the judges wrote.
Notably however, the appeals court pared back the original scope of the preliminary injunction, removing some agencies from the order such as the National Institute of Allergy and Infectious Diseases (NIAID), because it was not apparent its officials ever communicated with the social-media platforms.
“Public statements by Director Anthony Fauci and other NIAID officials promoted the government’s scientific and policy views and attempted to discredit opposing ones—quintessential examples of government speech that do not run afoul of the First Amendment,” they wrote.
Further, they ruled that the Cybersecurity and Infrastructure Security Agency (CISA - a Department of Homeland Security) had likely not violated the First Amendment in creating an elaborate system for “flagging” content for platforms to censor.
The Biden administration now has 10 days from the date of the decision to appeal to the US Supreme Court.
Jenin Younes is Litigation Counsel for the New Civil Liberties Alliance, an organisation representing individual plaintiffs in the case.
“I think it’s the most important free speech case of our time,” said Younes.
“We've never had the government telling private companies to suppress people's speech, certainly not to this degree. Thousands, if not millions of people, have been impacted by this,” she added.
Younes said the First Amendment's most fundamental promise is that the government cannot suppress speech based on viewpoint, even if they believe they are protecting people.
“Censorship skewed the policy debate. The public was given the impression that there was a consensus on issues like lockdowns, mask mandates and vaccine safety, when there really wasn't,” said Younes.
“Social media has become the modern public square. This is where debates about policy take place. If one side is shut down because it opposes the government, then free speech is dead,” she added.
Professor Martin Kulldorff, one of the plaintiffs in the case, agreed.
“During the pandemic, a lot of scientists had to self-censor, some people were afraid to speak up at all,” said Kulldorff. “Censoring people meant that school closures and other lockdown measures and mandates stayed longer than they otherwise should have.”
Kulldorff said not only did the Biden administration egregiously censor “true content” online, but the censorship also led to many more deaths.
“If you look at Sweden for example, it was one major country that did not lock down and now they have the lowest excess mortality in Europe for the 3yrs [2020 - 2022],” said Kulldorff.
“If more countries had followed the example of Sweden much sooner, people's lives would have been saved. When the government says things that are not true, and you don’t let people object, it leads to higher mortality. Censorship actually killed people,” said Kulldorff.
Younes added, “Professors such as Kulldorff and Bhattacharya from Harvard and Stanford, are at the top of their field and they were silenced because the White House found it a threat to the policies they wanted to promote. You couldn't find a clearer illustration of why we have the First Amendment.”
If the Biden administration does not appeal, the case will progress to the trial phase, with plaintiffs hoping this landmark case will set a precedent that pushes back on government censorship and overreach.
Plaintiff Aaron Kheriaty talks with Jan Jekielek (The Epoch Times) on X (Twitter), about the Fifth Circuit Court of Appeals decision.
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