America’s tradition of robust debate is under threat.
America’s tradition of robust debate is under threat.
S teamrolling settled law and core protections, the Biden administration is suppressing free speech and intimidating conservatives, populists, and religiously observant Americans in an effort to silence them. Its wide-ranging attack includes coercing and partnering with social-media companies, attempting to criminalize political speech, allocating government resources to control speech, and targeting concerned parents and faithful Catholics.
Adopted on December 15, 1791, along with nine other amendments composing the Bill of Rights, the First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Though many of the rights enumerated in the Bill of Rights had their origins in British law, their enshrinement in the United States Constitution and their interpretation by the Supreme Court has created transcendent values that establish America as the guardian of individual rights.
Supreme Court decisions have consistently rejected limits on political speech. In West Virginia State Board of Education v. Barnette (1943), the Court held that protecting political speech is part of the “fixed star in our constitutional constellation.” The free-speech clause protects false political speech (United States v. Alvarez, 2012) and even advocating the commission of a crime, or the use of violence, to advance political goals, excluding a direct incitement to imminent lawless action that is likely to succeed (Brandenburg v. Ohio, 1969). In Ashcroft v. ACLU (2002), the Court confirmed “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”
There are no exceptions for hate speech, false statements, or so-called misinformation (typically, factually correct speech lacking the context preferred by progressives). As Justice Anthony Kennedy explained, the remedy for speech we do not like is to respond to it. Supreme Court decisions have reliably prohibited federal or state action to limit, compel, condition, punish, or exclude political speech, except in the limited circumstances of inciting imminent lawless action, obscenity, defamation, criminal conduct, fighting words, child pornography, and fraud. The bar to clear these thresholds is appropriately high.
The separate right to petition includes all levels of federal and state government. In Borough of Duryea v. Guarnieri (2011), the Supreme Court explained that “speech and petition are integral to the democratic process. . . . The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives, whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as to the whole realm of ideas and human affairs.”
Filed last year, Missouri v. Biden (see here and here) revealed widespread suppression of free speech. Under pressure from the administration, social-media companies blocked and demonetized views objected to by the administration on topics such as the origins of Covid, vaccine side effects, the Hunter Biden laptop, the economy, climate change, and election integrity, along with expressions of humor and parody. Notably, the government did not contest the relevant evidence in the record for the preliminary injunction, only its significance.
On Independence Day, federal district court judge Terry A. Doughty issued a preliminary injunction blocking the White House and numerous federal agencies from communicating with social-media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
In an appeal to the Fifth Circuit Court of Appeals, the government doubled down, speciously arguing that because it has a right to promote its views, it must also have the right to suppress dissent, provided only that it does not pair its demands with a “specific” threat of sanctions for noncompliance. The government denied that its threats amounted to coercion, despite clear evidence that the administration repeatedly threatened recalcitrant platforms that it would enforce antitrust law, rescind Section 230 of the Communications Decency Act (which insulates internet companies from liability for third-party content), and withdraw its cooperation. Further, President Biden publicly accused social-media companies that were inadequately suppressing dissenting views of “killing people,” and administration officials directed invective-laced demands and criticisms in emails sent to social-media companies that did not promptly fall into line.
On Friday, the Fifth Circuit issued its ruling. It agreed with Judge Doughty that the White House, CDC, surgeon general, and FBI had engaged in activities that coerced social-media companies into suppressing a broad range of protected political speech, and that those defendants should be preliminarily enjoined from directly or indirectly doing so. The Fifth Circuit focused, and in certain respects strengthened, Judge Doughty’s injunction against those defendants, but held that three other federal agencies had not engaged in coercive behavior, and vacated the injunction as to those agencies.
The Department of Justice has taken the lead in the effort to intimidate conservatives into silence. Jack Smith’s federal indictment of Donald Trump on four felony counts alleges overt acts. Overwhelmingly, however, the special counsel seeks to criminalize Trump’s intemperate speech and his right to obtain candid legal advice. Though the indictment alleges that Trump agreed to work with co-conspirators to “injure, oppress, threaten, and intimidate one or more persons,” the 45-page document provides no examples. As National Review’s editors argued, “Jack Smith is endeavoring to criminalize protected political speech and flimsy legal theories — when the Supreme Court has repeatedly admonished prosecutors to refrain from creative theories to stretch penal laws to reach misconduct that Congress has not made illegal.”
The indictment of the former president stands in stark contrast with the way matters involving Democrats have been handled: Hillary Clinton and her lawyers at Perkins Coie were given a pass for their falsified Trump-Russia Steele dossier, and no action has been taken regarding her repeated false assertion that she lost the presidential election to Trump because of fraud, or against Democrats who objected to the certification of Republican electors in 2001, 2005, and 2018. No other former president or vice president has been indicted since Aaron Burr was indicted (and acquitted) in 1807.
Though the DOJ refuses to provide a comprehensive report on its enforcement activity using the Freedom of Access to Clinic Entrances (FACE) Act, it has announced numerous prosecutions against individuals for actions outside abortion centers, including sending a team of 20 agents brandishing long guns to arrest Mark Houck for shoving an abortion-clinic worker who had just accosted his son; a jury acquitted Houck after one hour of deliberations. By contrast, Senator Ted Cruz advises that despite the firebombing and vandalizing of 88 crisis-pregnancy centers since the Dobbs decision, as of last month the DOJ had prosecuted only one pro-choice offender under the FACE Act.
In 2021, the White House colluded with the National School Boards Association in the writing of a letter sent by the NSBA to President Biden seeking federal assistance to stop what it described as “threats and acts of violence” against public-school personnel and students. Five days later, for the apparent purpose of intimidating parents who disagreed with the administration into silence, Attorney General Merrick Garland issued a directive to the FBI and U.S. attorneys to address the purported threats, even though these threats, if true, were matters for local police.
Garland later testified that the Department of Justice and FBI did not implement the directive. However, a May 11, 2022, letter from two Republican House members, Jim Jordan and Mike Johnson, cited evidence that the FBI had labeled “dozens of investigations into parents with a threat tag created by the FBI’s Counterterrorism Division to assess and track investigations related to school boards,” including investigations “in almost every region of the country and relating to all types of educational settings.” The FBI later acknowledged it had opened at least 25 investigations, though there were no prosecutions.
Earlier this year, Jordan and Johnson sought information from FBI director Christopher Wray about an FBI memorandum that linked traditional Catholics who oppose immigration and abortion to extremists. The FBI withdrew the memorandum, and in July, Wray testified to the House Judiciary Committee that it had originated solely in the Richmond Field Office. The committee determined that, in fact, multiple field offices had participated in the memorandum’s development. The committee also discovered that the FBI had infiltrated Catholic parishes and local diocesan leadership to recruit confidential sources.
Other assaults on free speech are more subtle. The Department of Education, for example, which oversees annual grants exceeding $75 billion, requires that recipients conform to diversity, equity, and inclusion dogma and excludes those who do not.
In Police Department of Chicago v. Mosley (1972), the Supreme Court explained that government may not regulate speech “because of its message, its ideas, its subject matter, or its content.” Even facially content-neutral laws are impermissible if the purpose is a disagreement with the message to be conveyed (Ward v. Rock Against Racism, 1989). Further, government may not compel political speech. Though I am not aware of a case addressing the recent effort by progressives in government and academia to require or coerce the substitution of often tortured progressive terminology for well-understood language, thereby altering the meaning of neutral terms to convey a preferred political meaning, the principles underlying well-settled doctrine would impose strict scrutiny to ensure the new terminology does not, in fact, have a purpose or effect of changing the message.
Nonetheless, since taking office, the Biden administration has engaged in an aggressive rhetorical overhaul that it admits is intended to change the message. Among numerous examples, the administration directed the Department of Homeland Security to stop using the terms “alien” and “illegal alien,” and the CDC issued “inclusive communication principles” for uses in areas ranging from public health to television scripts. Among its recommendations are to cease using “inmate,” “handicapped,” “alcoholic,” “uninsured,” “homeless,” “poor,” “male,” “female,” “stakeholder,” and “insane.” For many organizations and institutions, CDC recommendations carry the weight of legal mandates.
With the full power of the federal government, the Biden administration is seeking to stifle the American tradition of robust debate. As litigation and House investigations demonstrate, it has had far more success than most Americans realize. This country was founded by those who understood the importance of individual freedom and the rights to criticize and petition government. They fought a revolution to pursue those ideals. It is incumbent on Americans today to defend and preserve that legacy.