Court stops government-backed censorship by Big Tech.

On July 4, 11 federal agencies and dozens of their officials were legally blocked from further interaction with more than 20 social media companies about the censoring of information deemed by the government as misinformation.

Communication about criminal activity, national security threats, attempted foreign influence, cyberattacks, illegal campaign contributions, and voter suppression are exempt from the ban.

The preliminary injunction and temporary restraining order were issued by Judge Terry Doughty, a Trump appointee, in the U.S. District Court of Western Louisiana.

Greatest Attack Ever on Free Speech in America

In an accompanying 155-page memorandum, Judge Doughty framed the importance of his action.

“If the allegations made by the Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history,” he wrote.

In his decision, Judge Doughty agreed with the plaintiffs that the harm is ongoing and likely to continue into the 2024 election and beyond.

Judge Doughty said the alleged actions of the federal government “blatantly ignored the First Amendment rights to free speech.”

Beyond Party Lines

He also said that though the “censorship alleged in this case almost exclusively targeted conservative speech, the issues raised herein go beyond party lines.”

Some of the conservative free speech that was shown to be suppressed included the integrity of the 2020 presidential election; the security of mail-in voting; the Hunter Biden laptop story prior to the 2020 election; the lab-leak theory about the origins of the COVID-19 virus; the effectiveness of masks, lockdowns, and vaccines; criticism of President Joe Biden; parody posts poking fun at administration officials; and negative comments about the economy, according to the complaint.

The judgment was handed down in a case called State of Missouri, et al., versus Joseph R. Biden Jr. et al., in which the states of Missouri and Louisiana and a group of individuals sued the executive branch of the federal government for violating their First Amendment right to speak and listen.

The Biggest Suppressors

The court order specifically enjoined the Executive Office of the President, the Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), the Cybersecurity and Infrastructure Security Agency (CISA), the Department of Homeland Security (DHS), the National Institute of Allergy and Infectious Diseases (NIAID), the Centers for Disease Control and Prevention (CDC), Surgeon General Vivek H. Murthy, and other agencies along with their employees.

The defendants were ordered to refrain from either “coercing” or “significantly encouraging” the nation’s leading social media platforms to censor protected speech.

The plaintiffs in the case presented the court with documents that allegedly show that in 2019, the FBI investigated and flagged 929,000 political speech tweets by American citizens as “domestic disinformation” and sent them on to social media companies for evaluation and possible censoring.

Judge Doughty’s memorandum cites the testimony of FBI Special Agent Elvis Chan who said that in 2019 Twitter took down 422 accounts over 929,000 tweets.

“All political speech is protected speech,” Judge Doughty noted of the U.S. Constitution.

The social media companies involved in the government-directed censoring included Facebook/Meta, Twitter, YouTube/Google, Instagram, TikTok, Linkedin, and others.

None of the social media firms were named as defendants in the case or were parties to the injunction.

Strong-Arm Tactics

According to the memorandum, the plaintiffs allege that the defendants used public pressure campaigns, regular private meetings, and other forms of communication to “collude with and/or coerce” social media platforms to suppress the government’s disfavored speakers, viewpoints, and content.

The plaintiffs also argue that government officials used as leverage possible increased anti-trust scrutiny, additional regulations, and changes to Section 230 of the Decency in Communications Act to prompt social media companies to increase efforts to meet the censorship demands.

Section 230 grants social media platforms immunity from civil liability in suits brought against posters over the content of their postings.

Convincing Evidence

In the first 80 pages of the memorandum, the judge reviewed a portion of the voluminous evidence provided by the plaintiffs that convinced him to issue the injunction.

Much of the evidence goes back to the days of the COVID-19 pandemic, the 2020 presidential election, and the 2022 midterms.

Judge Doughty cited scores of specific proofs in the form of depositions, emails, letters, documents, and public statements by government officials that contained their exact words and those of the social media companies with whom they communicated.

An example of the evidence that convinced the court to issue the injunction reveals that, from May 28 to July 10, 2021, a senior Meta executive reportedly copied former Whitehouse senior COVID-19 advisor Andrew Slavitt on his emails to Surgeon General Murthy alerting them that Meta was engaging in censorship of COVID-19 misinformation according to the “White House’s requests” and indicated that “expanded penalties” for individual Facebook accounts that share the deemed misinformation were in the works.

Meta also stated, “We think there is considerably more we can do in partnership with you and your team to drive behavior.”

Another example of the close cooperation between social media firms and the White House highlighted by Judge Doughty’s memorandum was the reading in pertinent part, “On February 7, 2021, Twitter sent Flaherty a ‘Twitter’s Partner Support Portal’ for expedited review of flagging for censorship … Twitter also stated that it had been ‘recently bombarded’ with censorship requests from the White House and would prefer to have a streamlined process.”

Rob Flaherty is the White House’s former deputy assistant to the president and director of digital strategy.

Following Up on Requests

Mr. Flaherty is documented as having followed up frequently with social media platforms on how they were meeting the White House’s requests.

The following is an example of Facebook’s response to similar oversight and pressure.

“We obviously have work to do to gain your trust … We are working to get you useful information that’s on the level. That’s my job and I take it seriously—I’ll continue to do it to the best of my ability, and I’ll expect you to hold me accountable.”

Referring to the White House’s dissatisfaction with Facebook, Judge Doughty’s memorandum continues, “Slavitt … added more pressure by stating, ‘internally, we have been considering our options on what to do about it.’”

According to documents cited in the memorandum, in June 2022, the White House asked social media platforms to do more to censor so-called misinformation “regarding climate change, gender discussions, abortion, and economic policy.”

Upset about social media companies allowing what the Biden administration considered misinformation and disinformation about climate change to spread, White House National Climate Advisor Gina McCarthy “explicitly tied these censorship demands with threats of adverse legislation regarding the Communications Decency Act,” according to the evidence.

Also in June 2022, Biden’s White House formed a task force to stamp out so-called general misinformation and disinformation about women and LGBT individuals who are public and political figures, government officials, civic leaders, activists, and journalists.

In a memo discussing the creation of the task force and its relationship with social media platforms, threats of adverse legal consequences were again made if the tech firms did not censor aggressively enough.

Judge Doughty’s memorandum also listed some of the techniques employed by social media platforms to censor protected speech. They included changing algorithms to avoid amplifying the misinformation; the early detection of misinformation “super-spreaders;” building “frictions” to reduce the sharing of misinformation; search diversions; suspensions; and permanent de-platforming.

Role of CISA

CISA meets regularly with social media platforms, according to the plaintiffs.

CISA has a unit called the “Mis Dis and Malinformation Team” (MDM). Prior to the Biden administration taking office, the team was the Countering Foreign Influence Task Force.

During 2020, what is now MDM