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A Declaration of Independence From Government Censorship
The preliminary injunction in the Missouri v. Biden suit highlights the dangers of government censorship of "misinformation" on more than just COVID-19.
It happened to be the 247th anniversary of the adoption of the Declaration of Independence when U.S. District Judge Terry Doughty handed down a preliminary injunction in Missouri v. Biden, a suit brought by the attorneys general of Missouri and Louisiana, among other plaintiffs, arguing that the Biden administration’s attempts to coerce social media companies into suppressing purported misinformation violate the First Amendment.
And while the Biden administration’s objectionable actions as enumerated in the ruling do not approach the list of horribles the authors of the Declaration cited against King George, Judge Doughty’s 162 pages detailing government abuse of free speech are scathing nonetheless.
That’s true regardless of the fact that just days later, a 5th U.S. Circuit Court of Appeals three-judge panel put the injunction on hold at the request of the Biden Justice Department.
While media coverage has focused on the attempted suppression of COVID “misinformation,” Doughty calls out a number of other incidents of the administration pushing social media companies to censor speech on various controversial topics, including climate change, gender identity, and economic policy.
Plaintiffs have shown that not only have the Defendants shown willingness to coerce and/or to give significant encouragement to social-media platforms to suppress free speech with regard to the COVID-19 pandemic and national elections, they have also shown a willingness to do it with regard to other issues, such as gas prices, parody speech, calling the President a liar, climate change, gender, and abortion.
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At an Axios event entitled “A Conversation on Battling Misinformation,” held on June 14, 2022, the White House National Climate Advisor Gina McCarthy (“McCarthy”) blamed social-media companies for allowing misinformation and disinformation about climate change to spread and explicitly tied these censorship demands with threats of adverse legislation regarding the Communications Decency Act.
On June 16, 2022, the White House announced a new task force to target “general misinformation” and disinformation campaigns targeted at women and LBGTQI individuals who are public and political figures, government and civic leaders, activists, and journalists. The June 16, 2022, Memorandum discussed the creation of a task force to reel in “online harassment and abuse” and to develop programs targeting such disinformation campaigns. The Memorandum also called for the Task Force to confer with technology experts and again threatened social-media platforms with adverse legal consequences if the platforms did not censor aggressively enough.
On July 8, 2022, President Biden signed an Executive Order on protecting access to abortion. Section 4(b)(iv) of the order required the Attorney General, the Secretary of HHS, and the Chair of the Federal Trade Commission to address deceptive or fraudulent practices relating to reproductive healthcare services, including those online, and to protect access to accurate information.
On August 11, 2022, Flaherty emailed Twitter to dispute a note added by Twitter to one of President Biden’s tweets about gas prices. [citations excluded]
The plaintiffs provide additional details of the administration’s meddling in their motion’s Proposed Findings of Fact. For instance, on the June 16 Memorandum creating the “misinformation” task force mentioned above, the plaintiffs note the following:
The Memorandum again threatens social-media platforms with adverse legal consequences if they do not censor aggressively enough to suit federal officials: “the Task Force shall … submit periodic recommendations to the President on policies, regulatory actions, and legislation on technology sector accountability to address systemic harms to people affected by online harassment and abuse.”
Relatedly, on May 27, 2022, HHS Assistant Secretary Rachel Levine demanded that social-media platforms censor “misinformation” about “gender-affirming care.” In a public address to health officials, Levine “spoke about the need for government to ‘address health information directly’ and specified that includes encouraging Big Tech to combat health misinformation ‘beyond COVID-19.’” Levine stated: “So I’d like to just talk briefly about another area of substantial misinformation that is directly impacting health equity in our nation, and that is the health equity of sexual and gender minorities. There is substantial misinformation about gender-affirming care for transgender and gender diverse individuals… The positive value of gender-affirming care for youth and adults is not in scientific or medical dispute … And we need to use our clinicians’ voice to collectively advocate for our tech companies to create a healthier, cleaner information environment.” [citations excluded]
HHS Assistant Secretary Levine’s assertion that “[t]he positive value of gender-affirming care for youth and adults is not in scientific or medical dispute” is a risible statement that serves as a perfect example of why the government cannot and must not serve as the arbiter of truth and misinformation. No less than the newspaper of record has been reporting for some time now that the medical community is “deeply divided” over the gender therapy issue, particularly where minors are involved.
Levine’s confidence notwithstanding, the assistant secretary provides no evidence to support the case that there is “substantial misinformation that is directly impacting health equity in our nation.” But as Reason Senior Editor Jacob Sullum points out, “even "verifiable misinformation" is protected by the First Amendment, which means the government has no business trying to suppress it.” Sullum notes elsewhere that even some non-governmental, self-proclaimed arbiters of misinformation have embraced a disturbing level of comfort with the government flexing its censorship muscles:
"Most misinformation or disinformation that violates social platforms' policies is flagged by researchers, nonprofits, or people and software at the platforms themselves," the [New York] Times notes. But "academics and anti-disinformation organizations often complained that platforms were unresponsive to their concerns." The paper reinforces that point with a quote from Viktorya Vilk, director for digital safety and free expression (!) at PEN America: "Platforms are very good at ignoring civil society organizations and our requests for help or requests for information or escalation of individual cases. They are less comfortable ignoring the government." [emphasis added]
While plenty of bad actors inhabit the public square, the founders recognized the greatest danger to liberty was an authoritarian government trying to control the speech of its citizens. This is why the First Amendment lacks an exception clause. The New York Times’s Bret Stephens recalls the words of Justice William Brennan in a 1963 Supreme Court ruling involving similar circumstances.
“People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around,” noted Justice William Brennan, a fierce liberal, in his opinion. “It would be naïve to credit the state’s assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the laws against obscenity.”
Stephens goes on to warn that government censorship cuts both ways and unless both left and right are willing to take lumps when the “other side” appears to be racking up victories, sooner or later it will be republican values themselves that end up on the mat.
Still, the order is a triumph for civil liberties. It also ought to be considered a victory for liberals, insofar as liberals have historically been suspicious of Big Tech and the big national-security state — cooperating, as alleged in this case — to suppress the speech of people whose views they deem dangerous.
But in one of the stranger inversions of recent politics, it’s mostly conservatives who are cheering — and liberals who are decrying — the ruling.
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Critics of last week’s ruling may claim that, at the height of the pandemic, with thousands of Americans dying of Covid every day, the government had an urgent interest in curtailing what it saw as misinformation. Similar claims were made about communists at the height of the Cold War and antiwar activists during World War I. Yet the actions of government and powerful media companies against them shock us to this day.
Responsible people across the ideological spectrum, and anyone with a passing familiarity with the relevant history, should take heed.