A recent federal court ruling has many people questioning whether the First Amendment, and its protection of our bedrock freedom of speech, has been extinguished in our country. I want to help clarify the status of this epic, high-profile case that is currently trending in the media… Missouri v. Biden, which I mentioned briefly in my Substack last week.
As you likely know, this case was brought last year by the state attorneys general in Missouri and Louisiana together with some private individuals (a couple of whom are colleagues of mine, and one of which—Dr. Aaron Kheriaty—joins me as a Fellow at Brownstone Institute), challenging the Biden administration’s blatant obstruction of our First Amendment right to freedom of speech.
The plaintiffs argue that the federal government colluded with Big Tech companies such as Facebook, Twitter, etc., during the pandemic to silence those who were questioning the government agenda, their protocols, their data, and so on with regards to the pandemic. Of course, the government argues they were working with the social media giants to moderate content in order to stop “misinformation,” whatever that is. You know, to keep you safe. And healthy.
But a federal judge in Louisiana, Terry A. Doughty, wasn’t having it. So when the plaintiffs requested that the court issue a preliminary injunction to stop the federal government’s illegal collusion with the social media companies, Judge Doughty granted the motion!
Let me provide a bit more color, and explain where the case stands now.
On July 4th, when federal courts are closed for our Independence Day, Judge Doughty issued his decision granting the preliminary injunction that banned the federal government including the Biden administration, the Department of Health and Human Services, the FBI and multiple other government agencies and administration officials as named in his 155-page decision, from working with social media companies to suppress free speech that is protected by our First Amendment. Doughty wrote that the defendants:
“ARE HEREBY ENJOINED AND RESTRAINED from taking the following actions as to social-media companies:
“(1) meeting with social-media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms;
“(2) specifically flagging content or posts on social-media platforms and/or forwarding such to social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech;
“(3) urging, encouraging, pressuring, or inducing in any manner social-media companies to change their guidelines for removing, deleting, suppressing, or reducing content containing protected free speech;
“(4) emailing, calling, sending letters, texting, or engaging in any communication of any kind with social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech;
“(5) collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group for the purpose of urging, encouraging, pressuring, or inducing in any manner removal, deletion, suppression, or reduction of content posted with social-media companies containing protected free speech;
“(6) threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech;
“(7) taking any action such as urging, encouraging, pressuring, or inducing in any manner social-media companies to remove, delete, suppress, or reduce posted content protected by the Free Speech Clause of the First Amendment to the United States Constitution;
“(8) following up with social-media companies to determine whether the social-media companies removed, deleted, suppressed, or reduced previous social-media postings containing protected free speech;
“(9) requesting content reports from social-media companies detailing actions taken to remove, delete, suppress, or reduce content containing protected free speech; and
“(10) notifying social-media companies to Be on The Lookout (‘BOLO’) for postings containing protected free speech.”
So what Doughty did here was to temporarily stop the feds from these collusive actions, while the case continued winding its way through the court system. It was not a final decision on the case. However, in order to issue that temporary halt of illegal government actions, Doughty had to consider the merits of the case to some extent. Were plaintiffs likely to prevail at trial in the end? He was clear in his opinion about the answer to that question when he wrote,
“If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history.”
That is a very powerful statement indeed.
He also wrote,
“Although this case is still relatively young, and at this stage the Court is only examining it in terms of Plaintiffs’ likelihood of success on the merits, the evidence produced thus far depicts an almost dystopian scenario. 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.’”
Doughty was sure to note that this was not a partisan issue, but instead an American issue. He quoted some of our Founding Fathers with regards to the immense import of free speech:
“The principal function of free speech under the United States’ system of government is to invite dispute; it may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Texas v. Johnson, 109 S. Ct. 2533, 2542–43 (1989). Freedom of speech and press is the indispensable condition of nearly every other form of freedom. Curtis Pub. Co. v. Butts, 87 S. Ct. 1975, 1986 (1967).
“The following quotes reveal the Founding Fathers’ thoughts on freedom of speech:
“For if men are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away, and dumb and silent we may be led, like sheep, to the slaughter.
“George Washington, March 15, 1783.
“Whoever would overthrow the liberty of a nation must begin by subduing the free acts of speech.
“Benjamin Franklin, Letters of Silence Dogwood.
“Reason and free inquiry are the only effectual agents against error.
“The question does not concern whether speech is conservative, moderate, liberal, progressive, or somewhere in between. What matters is that Americans, despite their views, will not be censored or suppressed by the Government. Other than well-known exceptions to the Free Speech Clause, all political views and content are protected free speech.
“The issues presented to this Court are important and deeply intertwined in the daily lives of the citizens of this country.”
Of course, the Biden administration wasted no time and immediately petitioned the court for a stay on its order. This means Biden and crew asked the court to basically nullify the injunction so that they, the government, could continue to censor Americans via social media companies. Judge Doughty said a resounding NO to Biden’s request. On July 10, Doughty issued his decision denying the stay. He wrote in part,
“Although this Preliminary Injunction involves numerous agencies, it is not as broad as it appears. It only prohibits something the Defendants have no legal right to do — contacting social-media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner, the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.”
That very same day, July 10, the Biden administration appealed that denial to the Court of Appeals and asked for an emergency stay of the order. The 5th Circuit Court of Appeals granted the stay on July 14. So this means that the Biden administration and others can freely censor free speech on social media companies, again. At least for now.
Of note is the fact that the stay granted by the 5th Circuit was not issued based on the merits of the case. It was an administrative stay, which is somewhat common. It’s also not permanent, but is only in effect until oral arguments on the injunction can be heard by the appellate court, and that has been expedited so that oral arguments will take place sooner rather than later. So the plaintiffs have not “lost” the ability to get their injunction back, nor have they lost the case. It’s still working its way through the courts.
This case, like so many others including my quarantine lawsuit against New York’s governor, exemplifies the grave need to change the leadership at the top, at all levels of our government… federal, state, local. No matter where you live or what political party you belong to, we must all vote into office politicians and judges who understand and uphold our Constitution. It is the only way to preserve our rights and freedoms.
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.