We have all heard the refrain, “but it’s a private company” when social media firms limit the information allowed on their sites. And while this may be true in the abstract, there are many real-life reasons this excuse falls flat: for one thing, these firms have created a monopolized public forum, so the First Amendment should apply. Also, many large media firms have colluded to tell “the socials” what information is allowed, creating likely antitrust violations. A new 150-page ruling issued on the Fourth of July by a Louisiana Federal District Court has raised a third issue: when do government communications with media firms, aimed at getting them to limit speech, cross the line and implicate the First Amendment? In this case of Missouri v. Biden, the judge believed that this line has been crossed. Based on the ruling, issues such as the origins of, and treatment for, COVID-19 can now be freely discussed without government interference.

Even Joking Speech Under Fire

After reviewing extensive contacts from a variety of federal authorities with social media firms, Judge Terry A. Doughty stated that, “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.” Doughty noted that on June 14 of 2022, White House National Climate Advisor Gina McCarthy spoke at an event at the online news outlet Axios titled, “A Conversation on Battling Disinformation.” McCarthy said, “We have to get together; we have to get better at communicating, and frankly, the tech companies have to stop allowing specific individuals over and over to spread disinformation.”

Multiple Federal Agencies Ordered to Stop Communicating with Social Media

In ordering officials to stop communicating with social media firms, Doughty states that Missouri and other plaintiffs have shown a likelihood of success justifying a preliminary injunction until the case is over. This applies to White House officials, the Surgeon General’s office, the Center for Disease Control, the Federal Bureau of Investigation, NIAID, and other agencies and their agents. Recognizing that government action is necessary for a First Amendment claim, Doughty states that, “The Free Speech Clause prohibits only governmental abridgment of speech. It does not prohibit private abridgment of speech.” With some exceptions, “The First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals.” Especially egregious is suppressing speech based on viewpoint, known as “content-based discrimination.”

Disagreeable Ideas Protected

“If there is a bedrock principal underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” states Judge Doughty, citing Supreme Court decisions. In this case it is shown that federal actors gave “significant encouragement” to the degree that that information suppression should be, “deemed to be that of the government.” Also, elements of coercion are also present. “Additionally, when the government has so involved itself in the private party’s conduct, it cannot claim the conduct occurred as a result of private choice, even if the private party would have acted independently.”

Conservative Views Targeted

Judge Doughty also said that “Government, through the White House and numerous federal agencies, pressured and encouraged social-media companies to suppress free speech. Defendants used meetings and communications with social-media companies to pressure those companies to take down, reduce, and suppress the free speech of American citizens.” And it appears that, “unrelenting pressure” by government officials “had the intended result of suppressing millions of protected free speech postings by American citizens.” The judge was especially concerned that all of the speech censored was “conservative”: “Using the 2016 election and the COVID-19 pandemic, the Government apparently engaged in a massive effort to suppress disfavored conservative speech.”

Free Speech Wins

One of the main points of free speech is that the government does not get to decide what is true or not. When it comes to issues such as the use of ivermectin or the safety and efficacy of the COVID-19 vaccines, there are major disagreements between different doctors and experts. These disputes were unfairly resolved by the government in favor of “official truth.” Now, with this court opinion, free speech is making a comeback that will help all Americans gain access to a variety of views of physicians and other experts, even if they disagree with the “official” facts.

Finally, on July 10, Judge Doughty denied a government motion to put the preliminary injunction on hold, so the order stopping government officials from communicating with social media firms still stands!