In a federal lawsuit, discovery reveals a multi-agency effort to censor and suppress voices that disagree with administration policies.
In a federal lawsuit, discovery reveals a multi-agency effort to censor and suppress voices that disagree with administration policies.
T he bedrock of American democracy, the First Amendment, prohibits Congress from making laws “abridging the freedom of speech.” The Supreme Court has repeatedly applied this prohibition to executive actions, as well.
The Biden administration’s campaign to censor, demonetize, and suppress dissenting voices on social media is much broader than previously known, as demonstrated by an amended complaint filed last month in federal district court in the case of Missouri v. Biden. The complaint, by the Louisiana and Missouri attorneys general along with the New Civil Liberties Alliance on behalf of leading health-care professionals, provides strong evidence of the administration’s vigorous campaign to coerce and collude with social-media companies in suppressing and deplatforming criticism of the administration as well as views with which it disagrees on subjects such as Covid, elections, the Hunter Biden laptop, and climate change, among others.
The evidence shows that at least 80 senior officials have participated in a concerted federal enterprise involving at least eleven federal agencies, including the White House, Department of Health and Human Services (HHS), Department of Homeland Security (DHS), Centers for Disease Control and Prevention (CDC), Office of the Surgeon General, Census Bureau, and FBI. The manifestly unconstitutional public–private partnership between the administration and Big Tech disregards Chief Justice Warren Burger’s warning that it is “axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.”
Responses to Freedom of Information Act (FOIA) requests and emails produced in discovery show that White House, DHS, and HHS officials flagged specific content and examples of content for censorship, including factually accurate dissenting views, under the guise of suppressing “domestic terrorism.”
To impede discovery, the White House asserted privilege. On September 6, federal district-court judge Terry A. Doughty rejected the government’s claims and ordered Karine Jean-Pierre, the White House press secretary, and Anthony Fauci, in his capacity as chief medical adviser, to comply with discovery requests on an expedited basis. Doughty also approved naming agencies identified by the evidence as having participated in the campaign as additional defendants.
The complaint seeks to enjoin the defendants from taking any steps to demand, urge, pressure, or otherwise induce any social-media platform to censor or restrict access to content.
Misinformation according to Whom?
Section 230 of the Communications Decency Act was intended to immunize common carriers, such as telephone carriers and Internet service providers, from liability for content over which they exercised no control. Social-media companies have convinced the courts that they should have the same protection, even as they engage in extensive content moderation and control.
Though both political parties have expressed frustration with social-media companies, their frustrations are diametrically different. Some conservatives complain that a company that mediates its content is not a common carrier and should not be protected by Section 230. Many progressives, on the other hand, complain that social-media companies aren’t doing enough to suppress speech that they view as “misinformation” — that is, speech with which they disagree — and have threatened to repeal Section 230 and break up tech companies that do not suppress such speech — that is, of conservatives, centrists, and libertarians.
Biden’s threats of government action have been among the most vociferous. In January 2020, then-candidate Biden told the New York Times editorial board that Section 230 should be “revoked” because social-media companies like Facebook did not do enough to censor false information in political ads criticizing him, and that Facebook CEO Mark Zuckerberg should be subject to civil liability and possibly criminal prosecution for not censoring the Trump campaign. In June and again in September 2020, the Biden campaign demanded that Facebook censor Trump and his supporters.
At a White House press briefing on July 15, 2021, White House press secretary Jen Psaki explained: “We are in regular touch with these social-media platforms . . . through members of our senior staff.” She made explicit the administration’s unconstitutional violation of free speech when she admitted, “We’re flagging problematic posts for Facebook that spread disinformation,” and added, “They certainly understand what our asks are.”
The following day, responding to a reporter’s question about Covid misinformation on social media, Biden said, “They’re killing people.” That same day, Psaki called for social-media companies to coordinate with one another to censor disfavored speakers, saying, “You shouldn’t be banned from one platform and not others.” Four days later, White House communications director Kate Bedingfield threatened to amend or repeal the liability protections of Section 230 if social-media companies did not increase censorship of disfavored speakers and views.
In May 2021, it was reported that DHS intended to “partner with private firms” to monitor citizens online and gather intelligence. In June, the National Security Council released its National Strategy for Countering Domestic Terrorism, which repeatedly claimed that “disinformation and misinformation” are important elements of “domestic terrorism” and identified its efforts to suppress such communications as part of its priority to “enhanc[e] faith in government.”
In November 2021, Jen Easterly, director of the Cybersecurity and Infrastructure Security Agency (CISA), an agency within DHS, announced that CISA was “beefing up its disinformation and misinformation team.” She claimed that social-media speech is a form of “infrastructure,” that policing online speech fell within her agency’s mission to protect “infrastructure,” and that Americans should not be allowed to “pick [their] own facts” and make their own decisions about what is true.”
CISA routinely expands the definitions of misinformation and disinformation to include “malinformation,” which it defines as information that is “based on fact, but used out of context to mislead, harm, or manipulate” — i.e., truthful information that the government believes is presented out of context to contradict left-wing political narratives.
During an August 2, 2021, appearance on MSNBC, DHS secretary Alejandro Mayorkas admitted there was a government-wide effort “across the federal enterprise” to police speech on social media. Nine months later, on April 27, 2022, DHS announced a Disinformation Governance Board to be headed by Nina Jankowicz, a controversial Democratic activist. The board was to monitor disinformation and work with social-media platforms to remove it. Just three weeks later, Jankowicz resigned, and the board was suspended. In August, DHS acknowledged that the board was redundant because DHS and other agencies already engaged in similar activities and had done so “for decades.”
On February 7, 2022, DHS issued a National Terrorism Advisory Bulletin that claimed that the “proliferation of false or misleading narratives, which sow discord or undermine public trust in U.S. government institutions,” constitutes a “domestic terror threat.” Then, on April 12, CISA announced that it was coordinating directly with social-media platforms to police “Mis-, Dis-, and Malinformation.” Premising its activities on unconstitutional motives, CISA stated: “False or misleading information can evoke a strong emotional reaction that leads people to share it without first looking into the facts for themselves, polluting healthy conversations about the issues and increasing societal divisions.”
At an Axios event on June 14, 2022, White House national climate adviser Gina McCarthy demanded that “tech companies have to stop allowing specific individuals over and over again to spread disinformation” — speech that contradicts federal officials’ preferred narratives on climate change — and threatened congressional action to “hold companies accountable.”
Two days later, the White House formed a task force to address “gendered disinformation.” The Task Force was charged with coordinating with technology experts and “industry stakeholders” to, among other things, suppress so-called “disinformation campaigns” against “public and political figures, government and civic leaders, activists, and journalists.”
On July 8, the president signed an executive order that directs HHS, the Department of Justice, and the Federal Trade Commission “to examine ways to . . . curb the spread of misinformation related to abortion.”
Facebook’s Zuckerberg last month told podcast host Joe Rogan that Facebook suppressed distribution of reports about Hunter Biden’s laptop in the lead-up to the 2020 election after the FBI warned Facebook to be on “high alert” for a sudden data dump that, the FBI explained, would be Russian misinformation.
Muzzling the Opposition
These actions have precipitated an unprecedented rise in censorship and suppression of free speech — including core political speech — on social-media platforms.
In 2020, social-media platforms began aggressively censoring speech that raised concerns about the security of voting by mail. The following year, social media began censoring perspectives on Covid-19 that varied from the CDC’s narrative.
Since then, the administration has achieved astonishing success in muzzling social-media criticism of President Biden. An April 2022 review by the Media Research Center found 646 examples of bans, deleted content, and other speech restrictions placed on those who criticized Biden on social media over the last two years, including the censorship of anyone who discussed the New York Post Hunter Biden laptop story, and users who blamed the current inflation crisis on Biden, or called out Biden’s touchy-feely behavior around women and girls. Among the censored posts were many that simply quoted Biden’s own words.
The list of censorship targets includes Donald Trump (in March, YouTube imposed a one-week suspension on the Hill for posts that included clips of his speech at the CPAC conference), Senator Ted Cruz (R., Texas), House minority leader Kevin McCarthy (R., Calif.), Donald Trump Jr., actor James Woods, Daily Wire host Candace Owens, Salem radio host Sebastian Gorka, syndicated radio host Dana Loesch, the New York Post, the Washington Free Beacon, the Federalist, and satire site the Babylon Bee.
Most recently, social-media platforms censored criticisms of the Biden administration’s stance on what constitutes a recession.
Violating Core First Amendment Protections
Based on its precedents, in Ashcroft v. ACLU (2002), the Court declared that, with few exceptions, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”
Labeling speech as “misinformation” does not strip it of protection. In United States v. Alvarez (2012), Justice Anthony Kennedy explained that in applying the First Amendment, the Court had rejected an ad hoc balancing of social costs and benefits, and noted:
Absent from those few categories where the law allows content-based regulation of speech is . . . false statements. . . . Some false statements are inevitable if there is to be an open and vigorous expression of views. . . . Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.
Kennedy further explained that the remedy for speech we do not like is to respond to it:
Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, . . . it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom. . . .
The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.
In Matal v. Tam (2016), eight justices agreed there also is no hate-speech exception to the First Amendment. Writing for four of those justices, Justice Kennedy observed:
A law found to discriminate based on viewpoint is an egregious form of content discrimination, which is presumptively unconstitutional. A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.
The result is no different when government compels or colludes with a private enterprise to do its bidding. In his concurring opinion in Biden v. Knight First Amendment Institute at Columbia University (2021), Justice Clarence Thomas wrote that a private enterprise violates the First Amendment “if the government coerces or induces it to take action” the government itself would not be permitted to do, such as censor expression of a lawful viewpoint. Justice Thomas pointedly added: “The government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly.”
In 1783, George Washington warned that if “the Freedom of Speech may be taken away,” then “dumb and silent we may be led, like sheep, to the Slaughter.” Joe Biden is right about one thing: Our democracy is in peril. He just has the wrong villain.