Defenders of free speech received some (hopefully) good news recently when the Supreme Court agreed to hear an appeal of Murthy v. Missouri. This is the lawsuit claiming federal officials—including President Biden—violated the First Amendment by pressuring social media companies to censor news and opinions that contradict the Administration’s political and policy goals. As Federal Judge Terry A Doughty wrote regarding the preliminary injunction he (appropriately) issued on the Fourth of July forbidding government officials from contacting social media companies: “…if the allegations made by the plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States history.”
This may seem like hyperbole. But considering how many Americans use social media to share information and opinions—and the number of government officials involved in efforts to censor “unapproved” posts—Judge Doughty’s statement does not seem so unreasonable. Judge Doughty’s injunction was upheld by the Fifth Circuit Court, although the number of government officials covered by the injunction was lowered. Unfortunately, the Supreme Court stayed the injunction over the objections of Justice Samuel Alito, who was joined by Neil Gorsuch and Clarence Thomas. Justice Alito wrote that staying the injunction “… allows the defendants to persist in committing the type of First Amendment violations that the lower courts identified."
It should be easy for all justices to side with the plaintiffs. Government officials, including the big guy, clearly acted with intent to silence American citizens. These actions went beyond using the bully pulpit to encourage social media companies to remove or otherwise restrict American citizens from posting “unapproved news and views.” Surgeon General Vivek Murthy suggested dealing with COVID-19 “misinformation” via “appropriate legal and regulatory” measures. In other words, if social media companies do not comply with our censorship “requests”, we will force them to do so and maybe impose other sanctions on them.
The emails between government officials and social media company employees show the government employees did not view themselves as merely encouraging social media companies to remove certain posts. The tone of the emails clearly indicates that the government was issuing orders it expected the companies to obey. For example, Facebook posts caused Deputy Assistant to the President Rob Flaherty to get in touch with his inner Shelia Jackson Lee and send this email to the company: “Are you guys fucking serious? I want an answer on what happened here and I want it today.” Facebook was also told by White House COVID Advisor Andrew Slavitt that the Administration was “considering their options” on how to deal with Facebook’s refusal to try to “solve the problem” of free speech regarding COVID. Flaherty also took the war against fake news to a new level when he told Twitter to take down a Biden grandchildren parody site. The site may have been in poor taste, but it is hard to see how it threatens public health, national security, or any of the other reasons government officials give for suppressing speech.
If the Court creates a right for federal officials to censor Americans, Congress must use its authority to protect the people’s First Amendment rights. Fortunately, Senator Rand Paul and Representative Jim Jordan have teamed up to introduce the Free Speech Protection Act. This act makes it illegal for any federal employee or employee of a federal agency to interfere in any way with the First Amendment rights of any American citizen. Anyone who violates this law faces penalties including a fine of $10,000, a suspension, a demotion, termination, and a lifetime ban from federal employment.
The bill also requires federal agencies to report any contact they have with social media companies and forbids companies that work to censor American citizens from receiving federal grants. Even if the Court rules that the Biden Administration violated the First Amendment, Congress should still pass this bill to put teeth behind the Court’s decision.
The First Amendment is intended to protect the people’s ability to express controversial opinions and share facts without fear of being silenced by the government. The Biden Administration’s pressuring social media to censor American citizens violates the First Amendment just as much as if the President ordered federal agencies to hack Facebook and Twitter and remove certain posts. Congress and the Supreme Court have a duty to protect the First Amendment. The Court can do this by siding with the plaintiffs in Murthy v. Missouri, and Congress can by passing the Free Speech Protection Act.
