Missouri v. Biden: The Crossroads Between Misinformation and Free Speech
Judge Terry Doughty’s Fourth of July issuance of a preliminary injunction in the case Missouri v. Biden has drawn powerful reactions, earning the federal judge a slew of both fans and critics. I recommend my colleague John Vecchione’s discussion of the case and Judge Doughty’s ruling, which found that the plaintiffs are likely to succeed on their First Amendment claims that the government has worked to ensure the censorship of particular viewpoints (including jokes) on social media. This post examines the decision in more detail, looks at its aftermath so far, and delineates the primary arguments for and against Doughty’s enjoinment of what some have described as an unconstitutional censorship enterprise driven by the federal government.
In his memorandum ruling, Judge Doughty describes how the evidence produced in the case thus far “depicts an almost dystopian scenario,” in which the federal government “seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’” While some have celebrated the ruling as a victory for the First Amendment in what has been described as potentially “one of the most important free-speech cases in the nation’s history,” others have lamented the ruling’s restriction on the government’s “efforts to harden U.S. democracy against threats of misinformation” through its communications with social media companies. Indeed, according to the government in its motion to stay the preliminary injunction—filed on July 6 and denied on July 10—the “injunction’s sweeping substantive scope will chill a wide range of lawful government conduct relating to Defendants’ law enforcement responsibilities, obligations to protect the national security, and prerogative to speak on matters of public concern.” Whether one feels inclined to celebrate or to lament Judge Doughty’s order appears to hinge on how one views two primary points of contention: (1) Is the speech at issue in this case really worthy of protection under the First Amendment, or is it harmful “mis-, dis-, or malinformation” that should be censored? And (2) has the federal government, in fact, coerced, colluded with, and pressured social media companies to censor certain speech, or has it merely communicated informally with the platforms, which have then freely and independently censored particular subject matters, individuals, and viewpoints?
On point (1), critics of the preliminary injunction contend that the speech being censored in this case poses a threat to public health, safety, and well-being and therefore does not fall within the First Amendment’s ambit. According to the defendants in their opposition to the plaintiffs’ motion for a preliminary injunction, the government has not violated the First Amendment. Rather, it has only done what the Constitution entitles it to do: “to encourage specific private behavior,” including in this case, “reducing the spread of misinformation that undermines election security or the nation’s efforts to protect the public from the spread of a deadly disease.” According to Nina Jankowicz (formerly the executive director of the Department of Homeland Security’s Disinformation Governance Board before it was dissolved in May 2022), the preliminary injunction “could unleash false information in critical areas of public life,” and “election denialism and anti-vaccine propaganda could be the beneficiaries.” Rather than being motivated by the First Amendment, critics contend that the preliminary injunction is the politically-driven culmination of an “orchestrated rightwing campaign” in favor of conservative speech—at the expense of our nation’s well-being.
On point (2), opponents of Judge Doughty’s ruling argue that none of the federal government’s conduct has amounted to unconstitutional pressure, coercion, or significant encouragement resulting in the social media companies’ execution of censorship measures that they would not have otherwise performed. As argued in the defendants’ opposition to the motion for preliminary injunction, the government did nothing more than use its bully pulpit and other means of lawful communication “to promote public health and safety,” which is “precisely what government officials are supposed to do.” And the social media companies, which are “large, independent corporations,” have always decided for themselves what speech would or would not be carried on their platforms. And, as Leah Litman and Laurence Tribe assert, the Constitution does not prevent the government from “merely asking” social media companies to remove certain content. If that were the case, Litman and Tribe contend, the government would be unable to follow through on “myriad legitimate and indeed compelling reasons” to ask social media platforms to remove content, including to counter the efforts of foreign governments “trying to make certain content go viral in order to reduce voter turnout, inflame divisions, or make the country less safe.”
The above points raise questions and concerns that one would expect in a lawsuit of this nature, and that are crucial to address. But these concerns are largely already addressed in Judge Doughty’s ruling, as well as in much of the briefing filed in this case, which details the voluminous preliminary discovery produced thus far in this case. (Admittedly, reading through it all might require a certain degree of stamina and motivation, as the judge’s ruling alone is 155 pages long. But it’s worth the read!)
On point (1), Judge Doughty explains that the censored speech at issue in the case does not fall within the “well-defined and narrowly limited classes of speech” that are not protected by the First Amendment (such as fraud, incitement, speech related to child pornography, or speech used to commit a crime). In response to the government’s argument that the censorship was justified to safeguard national security and public safety, Judge Doughty points to the following examples of specific content and viewpoints that have been censored at the behest of the government that the plaintiffs raised in their briefing:
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parody account on Twitter about Hunter Biden’s daughter;
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“Vaccine-skeptical” content that, according to Facebook, did not violate its policies;
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Vaccine humor posts that might discourage vaccination;
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“Misinformation” regarding climate change, gender discussions, abortion, and economic policy.
According to Judge Doughty, there is no question that speech like the above constitutes “protected free speech” (as opposed to one of the “well-defined and narrowly limited” exceptions not protected by the First Amendment). And, as the plaintiffs point out in their response to the government’s motion to stay the injunction, it is unclear (and the government cites no specific examples of) what “grave harm” will occur if the government is prevented from engaging in acts to suppress speech such as the above. By its very terms, the injunction allows the government to continue engaging in a full range of permissible speech and conduct, including “(1) informing social-media companies of postings involving criminal activity or criminal conspiracies” and “(2) contacting and/or notifying social-media companies of national security threats, extortion, or other threats posted on its platform.”
On point (2), Judge Doughty points to many specific examples showing that the federal government has crossed the line between “merely asking” and coercing/pressuring/inducing social media companies to suppress speech that they otherwise would allow. These include:
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White House Digital Director’s email to Twitter: “Hey folks, wanted to flag the below tweet and am wondering if we can get moving on the process of having it removed. ASAP.”
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Threats of adverse consequences to social media companies—including reform of immunity under Section 230 of the Communications Decency Act, antitrust scrutiny/enforcement, and increased regulations—for those companies’ refusal to increase censorship.
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A senior White House official’s email to Facebook accusing it of insufficient censorship measures: “You only did this, however after an election that you helped increase skepticism in and an insurrection which was plotted, in large part, on your platform.”
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A senior White House official’s email to Facebook after the White House’s Instagram account was inadvertently censored: “Are you guys f***ing serious? I want an answer on what happened here and I want it today.”
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The Cybersecurity and Infrastructure Security Agency’s (CISA) expansion of the word “infrastructure” in its terminology to include “cognitive” infrastructure, so as to create authority to monitor and suppress protected free speech posted on social media.
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The State Department and CISA’s partnerships with private organizations, such as the Stanford Internet Observatory, which were designed to “get around” the First Amendment questions that might arise if a government agency were to monitor and flag speech for censorship on social media.
There is ample evidence that the government’s conduct has extended well beyond public statements and informal suggestions. The evidence produced by the plaintiffs shows that the government defendants relied on numerous and periodic “meetings, emails, phone calls, follow-up meetings,” bolstered by the power of the government, to pressure social media companies through threats of adverse consequences, such as Section 230 reform. Even content and viewpoints on the platforms that did not violate the social media companies’ policies—and that, in some cases, were acknowledged by the defendants to be true—were ultimately suppressed at the government’s behest.
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Although there has already been much action in this case, it is only the beginning. On July 10, the government filed in the Fifth Circuit an emergency motion for a stay of Judge Doughty’s preliminary injunction pending appeal, and on July 14, the Fifth Circuit entered a temporary administrative stay on the preliminary injunction, expediting the appeal to the next available date for oral argument. Whatever the ultimate outcome of this case, I recommend that readers keep their eyes peeled, as the fate of free speech and misinformation hangs in the balance.
July 18, 2023
Originally Published in The Federalist Society