SCOTUS Versus Free Speech

In a 6 to 3 ruling on the Murthy v. Missouri case, the Supreme Court ruled against me and my fellow co-plaintiffs, in effect rendering the US First Amendment a dead letter in the social media age. At stake in the case was the status of a preliminary injunction issued by lower federal courts ordering the Biden Administration to stop coercing social media companies to censor and shadowban people and ideas that the government does not like. 

On July 4^th of last year, federal Judge Terry Doughty issued the preliminary injunction under consideration in our case, ruling that – given the evidentiary record already considered – we are likely to win on the merits of the case we brought before the court. He described the Biden Administration’s censorship campaign as “Orwellian,” violating the First Amendment root and branch. 

The facts of the case are simple to understand, voluminously documented, and shocking, and they explain why the lower courts – including a unanimous three-judge panel of the Federal 5^th Circuit Court of Appeals – issued the preliminary injunction to stop the Biden Administration from censoring in the first place. The injunction that reached the Supreme Court was narrowly constructed, specifically exempting national security-related communications between the government and social media companies, as well as communications regarding criminal activity on social media platforms such as child porn. The government was still permitted to tell social media companies about such speech. 

The evidence revealed in the discovery of our case showed that employees of a dozen federal government agencies and the Biden White House directly pressured social media companies to censor viewpoints contrary to the official narratives they had pushed on the American people. Emails from the White House to Facebook show government officials threatening to use regulatory power to harm social media companies that did not comply with censorship demands.

Depositions of high–ranking career staff and political employees and unearthed emails between the government and social media companies like Facebook and Twitter/X revealed the government’s tactics to suppress speech. The Surgeon General’s office, the FBI, the CDC, the State Department, the Department of Homeland Security, and the White House were all closely involved. 

Government agencies funded universities and NGOs to support enterprises with Orwellian names like “Virality Project” and “Center for Countering Digital Hate” to create a target list for the Administration’s censorship efforts. With government backing, these entities – linked sometimes to prominent universities like Stanford and the University of Washington – work with corporate teams in social media companies’ “trust and safety” divisions to censor offending speech. 

The problem is that the government and these entities are bad at identifying misinformation, and they have a predilection for censoring people and ideas that are critical of government policy, whether those criticisms are true or false. 

For instance, according to court documents found during discovery, the Biden administration insisted on censoring and deboosting content that accurately pointed out the rapidly waning efficacy of the Covid vaccine against infections, which they used to justify executive orders imposing vaccine mandates.

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The Biden White House pressured Facebook to censor vaccine discussions, such as groups of vaccine-injured patients, that did not violate Facebook’s community standards. In response to harsh communications from Biden Covid advisor Andy Slavitt in 2021, Facebook limited the reach of these groups and censored them.

Ironically, even the White House itself was caught by its censorship demands. At the Biden administration’s behest, Facebook implemented algorithms to suppress posts their computers deemed “anti-vax.” In April 2021, when the CDC issued a “pause” on the distribution of the Johnson & Johnson Covid vaccine because it had identified an elevated level of strokes in women, the Facebook algorithms tagged the White House account as an anti-vax account. The Administration angrily ordered Facebook to stop censoring its speech. 

The censorship campaign harmed the health of Americans by preventing accurate speech by me and others from reaching the attention of the American people. Children were kept out of schools for years, churches, mosques, and synagogues were closed, businesses shuttered, and unvaccinated people lost their jobs and faced social discrimination because of misinformation put forward by the government. Had the government permitted a fair debate on the science of Covid, they would have lost on the merits. The continuing crisis of high excess mortality and many other harms caused by blinkered Covid policies might have been avoided.

The Supreme Court’s reasoning in denying the preliminary injunction against the Biden Administration is that the plaintiffs in the case, which included the states of Missouri and Louisiana, me, and several other targets of government censorship, have not established “standing” to sue the government on First Amendment grounds. The ruling, in effect, requires a chain of emails from a particular government bureaucrat to a social media company demanding that a social media company censor speech.

Since this censorship activity takes place in the dark recesses of government bureaucracies, outside of the capacity of regular citizens to observe, it sets a standard that is impossible to meet absent extraordinary circumstances. In my and my colleague Martin Kulldorff’s case, at least, the Supreme Court ignored evidence we uncovered of a high government official, Francis Collins (the former head of the National Institute on Health), directing Tony Fauci to conduct a “devastating takedown” of our ideas on how to better manage the pandemic (in brief, implementing focused protection of vulnerable elderly people and not closing schools or imposing harmful lockdowns).

The ruling also ignores the nature of the government censorship activities, which focuses more on censoring ideas and narrative themes than on censoring particular people. The government, directly and through its university and NGO proxies, coerces social media companies to implement automated algorithms to suppress and shadowban ideas that the government does not like, whether true or not. By requiring such a standard for “standing” in First Amendment cases, the Supreme Court has effectively greenlit sophisticated government censorship operations that moot the First Amendment.

The case now goes back down to the lower courts for more discovery and probing of the government censorship operation. While I anticipate we will win there, the case may come back up to the Supreme Court in due course. More importantly, though, our loss in the Supreme Court points to the need for Congress and voters to act to protect American free speech rights now that it is clear that the Supreme Court will not do so. 

Congress should pass a law prohibiting the executive branch and associated federal bureaucracies from censoring Americans via direct and indirect pressure on social media, and it should cut funding to university and NGO operations that the government uses to launder its social censorship schemes. Voters should demand of every candidate for office, including the presidency, where they stand on the modern censorship operation and vote accordingly. 

In a sense, by exposing and publicizing the government’s censorship operation, which cannot survive in the sunlight, we have already won despite the disappointing result in the Supreme Court.

Republished from the author’s Substack