UW First Amendment Expert Says Message Behind Judge Order On Social Media Is Biden Administration Can't Be Trusted

A Louisiana federal district court judge has temporarily blocked federal agencies from colluding with or coercing social media platforms to suppress protected speech. 

U.S. District Court Judge Terry Doughty filed his preliminary injunction order Tuesday, along with a 155-page memorandum explaining his decision and the numerous censorship efforts the federal government is accused of taking against social media users.  

The attorneys general of Missouri and Louisiana, along with individual plaintiffs, are pursuing the lawsuit against the federal government, including President Joe Biden and some of his staffers, the FBI, the Department of Justice, the National Institutes of Allergy and Infectious Diseases, the Department of Health and Human Services and several other federal agents. 

“If the allegations made by the Plaintiffs are true,” reads Doughty’s order, “the present case arguably involves the most massive attack against free speech in United States’ history.” 

No Thanks, Wyoming 

Wyoming was never invited into the lawsuit, Michael Pearlman, spokesman for Wyoming Gov. Mark Gordon, told Cowboy State Daily on Wednesday.  

Pearlman said Gordon’s office would have no further comment on the case.   

George Mocsary, a First Amendment expert and University of Wyoming law professor, said he had no idea why Wyoming wasn’t invited into the lawsuit.  

Wyoming’s exclusion probably had nothing to do with forum shopping, Mocsary added, noting that even if Wyoming had joined the case, the plaintiffs still could have chosen to file it in the U.S. District Court of Western Louisiana, as they did.  

Doughty is a Trump-appointed judge who struck down vaccine mandates for federally employed preschool workers and a federal masking mandate for the preschoolers in November 2022. He called the administrative mandates “tyranny” at the time.  

Sweeping Injunction 

But Mocsary noted the breadth of Doughty’s order, saying it sends a clear message.  

“By issuing such a broad order, the court is effectively saying that the executive branch can’t be trusted, based on its past actions, to make any ‘suggestions’ to social media platforms,” said Mocsary. “It’s shown that it can’t be trusted not to cross the line into improper coercion.” 

Some of the plaintiffs are doctors who co-authored The Great Barrington Declaration, a document in which doctors questioned COVID-19 lockdowns. Others are conservative news or commentary outlets, COVID-19 vaccine skeptics and human rights advocates.  

They claim White House top staffers pressured social media sites like Facebook and Twitter throughout 2021 and 2022, starting three days after Biden took office. The White House applied “pressure,” and has an inherent ability to threaten social media platforms with adverse policy changes, the plaintiffs allege.  

Coercion Vs. Collusion 

Government agencies can work with social media platforms, but they can’t coerce them to suppress speech under the First Amendment.  

While influencing platforms to go beyond their own policies is constitutionally “problematic,” said Mocsary, it’s only coercion that constitutes a certain violation.  

The White House threatened to change Section 230, which protects social media platforms from being held liable for content on their sites, the lawsuit alleges.  

While the plaintiffs claim that the threat of losing Section 230’s legal protections shows the government’s coercion, Mocsary said it could be tough to prove that.  

“The claim that the feds can repeal Section 230 at any time is a stretch, because Congress has to do that,” he said. “The executive branch can’t do that unilaterally.”  

‘Dystopian Scenario’ 

The alleged speech suppressions revolved around COVID-19 lockdown and vaccine narratives, and the integrity of the 2020 presidential election.  

“The evidence produced thus far depicts an almost dystopian scenario,’” wrote Doughty in his memorandum. “During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’”  

The “Ministry of Truth” is a governmental institution in George Orwell’s dystopian novel “1984,” wherein government agents constantly rewrite the approved public narratives and destroy unfavorable information.  

This bleak assertion in part led Doughty to issue the injunction blocking the following agencies from suppressing protected speech until this case is decided:  

• The Department of Health and Human Services 
• The National Institute of Allergy and Infectious Diseases 
• Surgeon General Vivek H. Murthy 
• Centers for Disease Control And Prevention 
• U.S. Census Bureau 
• FBI 
• U.S. Department of Justice 
• Karine Jean Pierre, White House spokeswoman 
• Numerous other White House staffers 
• Cybersecurity and Infrastructure Security Agency 
• U.S. Department of Homeland Security 
• U.S. Department of State 
• Numerous agents of these organizations 

But You’re Still Allowed To Do This 

But Doughty included carveouts of things the agencies are still allowed to do.

They still can tell social media companies about criminal activity, criminal election interference, national security or public safety threats, illegal campaign contributions or cyberattacks on election infrastructure.  

The agencies also can work against posts that are not protected free speech, and can post their own content, Doughty ruled.  

Clair McFarland can be reached at clair@cowboystatedaily.com.