Judge: White House dictated anti-conservative bias on social media

A federal judge in Louisiana on Tuesday put a stop for now to Biden administration attempts to strong-arm social media companies to remove posts it said spread “misinformation” about what are hot-button issues for some conservatives. That includes demands that the companies remove posts about vaccines, lockdowns, masking, election integrity, and President Biden—tactics the judge said could be redeployed to influence the 2024 elections improperly.

In a 155-page opinion issued on Independence Day, U.S. Chief District Judge Terry Doughty blasted administration officials for coercing Twitter, Facebook, Google and other Silicon Valley internet companies to take down and suppress the free speech of conservative individuals. In an accompanying preliminary injunction order, Doughty barred an array of governmental agencies and officials—from the White House to the State Department to the FBI—from meeting with and contacting social media companies to pressure them into censoring protected speech.

“What is really telling is that virtually all of the free speech suppressed was ‘conservative’ free speech,” Doughty concluded. “Using the 2016 election and the COVID-19 pandemic, the Government apparently engaged in a massive effort to suppress disfavored conservative speech.”

Tuesday’s ruling turns on whether government efforts to influence the companies’ moderation of posts “significantly encouraged” or “coerced” them into suppressing protected free speech. If so, the companies’ censorship, which would generally not be subject to a constitutional free speech guarantee, would be deemed governmental action restricted by the First Amendment.

The Biden administration wasted no time in countering the ruling, filing an appeal Wednesday to the 5th U.S. Circuit Court of Appeals. Late Thursday, it asked the judge to stay his ruling by July 10 to allow the appeals court an opportunity to rule, calling the ruling vague and overbroad in its sweep.

The ruling has already had an effect: U.S. State Department meetings with Facebook over election preparations and hacking threats were canceled Wednesday, The Washington Post reported.

The lawsuit was filed by Republican attorneys general in Louisiana and Missouri, as well as several individuals censored by the platforms. Dr. Jayanta Bhattacharya and Dr. Martin Kulldorff, infectious disease epidemiologists, co-authored The Great Barrington Declaration, a 2020 statement that expressed concern about the damaging physical and mental health effects of COVID-19 lockdowns.

Administration officials contended in a court filing the injunction will hinder the government’s ability to “provide accurate information to the public on matters of grave public concern,” to combat foreign influence campaigns and threats to national security, and to prosecute crimes. But the judge rejected the argument by government attorneys that administration officials’ requests to social media companies were only suggestions or recommendations. Doughty pointed to multiple emails from governmental officials to company representatives that sounded less like suggestions than demands.

“Cannot stress the degree to which this needs to be resolved immediately,” read one email referenced in the ruling. “Please remove this account immediately.” In another to company officials, White House digital strategist Rob Flaherty told Facebook, “I want an answer on what happened here and I want it today.” White House officials repeatedly threatened to rescind Section 230 of the Communications Decency Act, which protects internet companies from legal liability for third-party content. The removal of Section 230 could significantly affect the companies’ ability to operate.

Some legal scholars have criticized the breadth of the order. A leading free speech organization, the Philadelphia-based Foundation for Individual Rights of Expression, announced its support for the ruling. In a statement issued late Thursday, FIRE Director of Public Advocacy Aaron Terr said the ruling properly restrained the government from intruding into platforms’ editorial decisions, though he added that some “troubling” exceptions were made.

The injunction doesn’t cut off all contact between the Biden administration and the companies, allowing the government to continue to inform platforms about posts involving criminal activity, national security threats, threats to public safety and security, and other serious matters. It also allows the government to communicate with social-media companies about “deleting, removing, suppressing, or reducing posts on social-media platforms that are not protected free speech by the Free Speech Clause in the First Amendment to the United States Constitution.”

The exceptions concern Terr. In an interview with WORLD, he pointed to a long history of the government using alleged threats to national security as justification for free speech violations, such as when it used national security laws during World War I to prosecute war protesters.

“When these requests and demands come from … even the highest levels of the federal government, like the White House, there’s a sort of a weight behind those communications that is going to make any normal person or company feel intense pressure to comply,”said Terr. Although largely interpreted as a slap against the Biden administration, he said that some of the communications referenced in the order happened during the Trump administration.

Though it would be best for the government to leave the companies alone, said Terr, he admitted this was unlikely. He did have a suggestion: “One thing that FIRE has been beating the drum about is legislation that would require the government to disclose those communications … so that the public can have confidence that the government isn’t overstepping its authority.”

Regardless of the lawsuit’s ultimate outcome, Doughty’s blockbuster ruling may act as a warning against governmental overreach.

“The evidence produced thus far depicts an almost dystopian scenario,” the 64-year-old judge concluded. “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.’”