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Missouri v. Biden: A victory for free speech

July 9, 2023

On July 4th, when every government office was closed for the Independence Day holiday, a federal judge in Louisiana released an order that might be the most significant victory for freedom of speech in the lifetime of anyone alive today.

The case is Missouri v. Biden, in which the states of Missouri and Louisiana joined with five individuals — psychiatrist and university professor Dr. Aaron Kheriaty, Harvard and Stanford epidemiologists and professors of medicine Dr. Martin Kulldorf and Dr. Jay Bhattacharya, Gateway Pundit owner and St. Louis resident Jim Hoft, and co-director of Health Freedom Louisiana Jill Hines — to sue the Biden administration for allegedly colluding with and coercing social-media platforms “to suppress disfavored speakers, viewpoints and content.” This, the plaintiffs argued, constitutes government action to violate their First Amendment right to freedom of speech.

The plaintiffs presented evidence that the government suppressed constitutionally protected free speech on nine different topics: the Hunter Biden laptop, the lab-leak theory of COVID-19’s origin, the efficiency of masks and lockdowns, the efficiency of COVID-19 vaccines, election integrity in the 2020 presidential election, the security of voting by mail, parody content about government agencies and officials, negative posts about the economy, and negative posts about President Biden.

“If the allegations made by Plaintiffs are true,” U.S. District Judge Terry A. Doughty wrote, “the present case arguably involves the most massive attack against free speech in United States’ history.”

Judge Doughty ordered a preliminary injunction to immediately stop the government from contacting and muscling social media companies as described in detail by the judge in a 155-page memo.

For example, on January 23, 2021, three days after President Biden took office, the Digital Director for the COVID-19 Response team, Clarke Humphrey, emailed Twitter and asked for the removal of a tweet from Robert F. Kennedy, Jr., that was critical of the COVID-19 vaccine. Humphrey asked if “we can keep an eye out for tweets that fall in this same genre” and if Twitter could “get moving” on removing it “ASAP.”

The next month, the White House objected to a parody account relating to Hunter Biden’s daughter, Finnegan. “Please remove this account immediately,” White House Deputy Assistant to the President Rob Flaherty wrote in a stern email. Twitter suspended the account 45 minutes later.

Flaherty leaned on Facebook to remove what he called “Misinfo Themes,” which included “claims about the side effects of vaccines.” Although Facebook said “vaccine-skeptical” content did not violate its policy, the company reduced the distribution of the content and prevented recommendations for Groups, Pages and Instagram accounts where that content was shared. Flaherty continued to hound the company, demanding “actions and changes.”

The government was trying to censor truthful information, not just rumors or falsehoods — though rumors and falsehoods are protected free speech as well. The Biden White House pressured Facebook to suppress “true but shocking claims or personal anecdotes” and discussions of vaccines “in terms of personal or civil liberties.” This is what they termed “misinformation.”

On April 21, 2021, Biden administration officials met with Twitter and demanded to know why journalist Alex Berenson had not been “kicked off” the platform. Berenson had developed a large following during the pandemic by posting and analyzing official government data from around the globe, but the White House characterized his work as “disinfo that radiated out to the persuadable public.” Berenson was “kicked off” Twitter a few months later. (He sued Twitter, reached a settlement that included more discovery, and is suing the Biden administration.)

The strong-arming wasn’t reserved just for COVID topics. “The White House also asked social media companies to censor misinformation regarding climate change, gender discussions, abortion, and economic policy,” the judge wrote.

These examples of censorship directed by the White House are just a few of the incidents described in the judge’s lengthy memo. A chilling sense of the scope of what allegedly has been taking place can be drawn from the 7-page order granting the preliminary injunction.

The list of U.S. government agencies and officials now “enjoined and restrained” from engaging in censorship activities fills nearly three pages.

It includes the Department of Health and Human Services and the National Institute of Allergy and Infectious Diseases, HHS Secretary Xavier Becerra and NIAID Acting Director Dr. Hugh Auchincloss (who succeeded Dr. Anthony Fauci after serving as his longtime deputy), the CDC and the surgeon general.

It also includes the FBI, the Department of Justice, a long list of White House aides including Press Secretary Karine Jean-Pierre and National Climate Advisor Ali Zaidi, the Cybersecurity and Infrastructure Security Agency (CISA), the Department of Homeland Security and the State Department, along with specific officials and employees.

Next, there’s a page and a half of specific activities that these agencies and officials are now prohibited from doing.

They’re barred from “any manner” of “urging, encouraging, pressuring or inducing” social media companies to engage in the “removal, deletion, suppression or reduction of content containing protected free speech.” This means no flagging, no forwarding, no leaning on the companies to “change their guidelines,” no meetings, no calling, no emailing, no letters, no texts, and no “threatening, pressuring or coercing.”

Also, no “following up” or “requesting content reports” about “actions taken to remove, delete, suppress or reduce content containing protected free speech,” and no “notifying social media companies to ‘Be on The Lookout’ (‘BOLO’) for postings containing protected free speech.”

In addition, no “collaborating, coordinating, partnering, switchboarding and/or jointly working with” outside groups or projects to censor or suppress protected free speech.

The Biden administration has already filed a notice of appeal, which seems like an on-the-record confession that they are doing all of this and have no intention of stopping.

Judge Doughty’s order still allows the government to communicate with social media companies about illegal activity, cyber-attacks, national security threats and foreign efforts to influence elections. “Other than well-known exceptions to the Free Speech Clause,” he wrote, “all political views and content are protected free speech.”

It’s protected by people like Judge Terry Doughty, who chose the Fourth of July for some real fireworks.

Write [email protected] and follow her on Twitter @Susan_Shelley

Orange County Register

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