A Free Speech Victory...

Sort of?

By Brownstone Institute

On Tuesday, attorneys announced a “Consent Decree,” which will put an end to the years-long litigation in Murthy v. Missouri (previously called Missouri v. Biden), which focused on government-induced social media censorship. While its proponents herald the settlement agreement as a victory for free speech, the details suggest that Leviathan has not lost this civilizational struggle. Its concessions are decorative, and the text implicitly suggests that the practices will largely continue.

The “victory” for free speech in this case is that the remaining defendants – the CDC, CISA, and the Surgeon General – agree not to “threaten Social-Media Companies with some form of punishment…unless they remove, delete, suppress, or reduce content” that contains “protected free speech.” That is akin to a civilian signing an agreement not to steal his neighbor’s car; it “prohibits” something that is already illegal under black-letter First Amendment law.

Free speech advocates, however, cannot even celebrate that as a “victory.” The agreement not to bludgeon social media companies into imposing state censorship only lasts “for a period of 10 years,” per the terms of the agreement. After that, the agreement implies that CISA can return to its practice of “switchboarding,” which dictated which posts should be banned from social media.

Further, the “restriction” only applies to three government agencies; the settlement does not apply to similar assaults from any other government group (including DHS, the CIA, the FBI, or the White House).

Moreover, the only people who can enforce the terms are the five remaining plaintiffs, as the agreement is “enforceable only by the Parties.” If government warhawks coerce platforms to ban critics of the Iran War, this “Decree” will have no effect.

The supposed triumphs lack substance. The government agencies agree that “modern technology does not alter the Government’s obligation to abide by the strictures of the First Amendment” and that “misinformation” labels do not render speech constitutionally unprotected. Excellent. But that is nothing more than a repetition of well-established law.

Unfortunately, this was the predictable endpoint of the litigation following the Supreme Court’s dereliction of duty in June 2024, when it concocted procedural excuses to evade the controversy of the indisputable evidence of the Biden White House’s censorship apparatus. The history of the Action reveals that the Supreme Court forfeited a generational opportunity to protect American free speech.

July 2023: The District Court Unravels the Censorship Hegemon

On July 4, 2023, District Court Judge Terry Doughty granted a preliminary injunction barring large swaths of the US government from colluding with social media companies to censor “content containing protected free speech.” He described the allegations, if true, as “arguably [] the most massive attack against free speech in United States’ history.”

The order included a 155-page memorandum recounting the Biden administration’s wide-ranging assaults on free expression. Provided it survives future digital purges, historians will one day look to it as a guide to the authoritarian madness that overtook the republic under the guise of “public health.” The vast conspiracy spanned nearly every federal entity, including the White House, the Department of Justice, the Centers for Disease Control and Prevention, and the Intelligence Community.

That was the high-water mark of this case’s victory for freedom.

The Regime Fights Back

The regime would not let an injunction usurp its power. Censorship had been integral to its governing strategy since 2020’s crackdown on Covid dissidents and the later election campaign, as Joe Biden anointed Antony Blinken Secretary of State in return for him arranging for the CIA to thwart the Hunter Biden laptop scandal. Once in office, the Biden administration had unprecedented censorship aspirations, including its hope to install a ‘Ministry of Truth’ in the Department of Homeland Security and its threats to strip social media companies’ liability protections if they failed to curb dissent.

When Judge Doughty issued the injunction, the next election was just a year away, and the control of information would be vital to that campaign; the President’s health was failing, his son’s legal battles continued, inflation was soaring, the Ukraine conflict was escalating, and more than ten million illegal immigrants had flooded into the nation. Freedom of speech represented an existential threat.

The Biden administration responded with familiar doublethink: denying that the censorship existed while arguing that it had to continue. Its lackeys like Harvard Law Professor Larry Tribe described the censorship allegations as a “thoroughly debunked conspiracy theory,” despite the litany of allegations detailing the government’s strong arm tactics. The Administration’s attorneys simultaneously argued that the censorship operations were imperative to respond to “covert Russian operatives,” as if that justified stripping Americans of their right to question mRNA vaccines. Most of all, they defended their role in the fight against “misinformation,” which became identifiable as anything inconvenient to the administration.

But the landscape had changed since Blinken had used intelligence assets to fix the 2020 election. Just nine months before Judge Doughty issued his injunction, Elon Musk purchased Twitter and turned it into X. While Blinken’s efforts had led Jack Dorsey’s team to ban the New York Post for reporting on the “laptop from hell,” Musk had partially restored the public forum for dissent.

After appeals and re-argument, the Fifth Circuit largely upheld Judge Doughty’s injunction in Fall 2023. The Biden administration again appealed, and the Supreme Court agreed to hear the issue in a hearing set for March 2024.

June 2024: The Supreme Court Again Caves to Political Pressure

State and corporate powers converged in opposition to the Murthy plaintiffs in the weeks leading up to the Supreme Court argument. Groups including Stanford University, the CATO Institute, and Letitia James submitted amici briefs supporting the security state’s right to suppress dissent. Supposed “free speech” organizations like the ACLU remained conspicuously silent.

In the buildup to the hearing, the White House increasingly demonstrated that it was unwilling to adhere to Constitutional constraints. In February 2024, President Biden boasted to his constituents that he disregarded the Supreme Court’s ruling on his vote-buying gambit of “student loan forgiveness.” “The Supreme Court blocked it,” he said. “But that didn’t stop me!”

This was no coincidence. The target audience was not Democratic voters or MSNBC viewers; it was the Chief Justice and like-minded establishment conservatives on the Court. Democrats had successfully run this same operation twelve years earlier when it induced John Roberts to flip his vote on Obamacare.

After three days of oral arguments in NFIB v. Sebelius, Roberts told his colleagues that he would provide the critical fifth vote ruling that the Affordable Care Act was unconstitutional. Then, the Obama administration launched a public pressure campaign specifically targeting Roberts. In the ensuing weeks, Roberts flipped his vote to uphold the law, with writers across the political spectrum acknowledging that the law was “saved by political considerations.”

As Biden reveled in threatening a constitutional crisis, the Court’s “institutionalists” (Barrett, Roberts, and Kavanaugh) prepared for appeasement. The result was devastating.

In June 2024, Justice Barrett, joined by Kavanaugh, Roberts, and the Court’s liberal bloc, overturned Judge Doughty’s injunction on supposed procedural grounds. The opinion ignored the 155-page memorandum of injuries and ruled that the plaintiffs lacked “standing.” But “standing” was a copout draped in legalese. As Justice Alito wrote in dissent, the plaintiffs’ standing was indisputable.

Most absurdly, the Court ruled that there was no “substantial risk of future injury” because it was merely “conjecture” that the plaintiffs could suffer future censorship. Effectively, the Court greenlit censorship for the forthcoming election cycle. If not for Musk’s purchase of Twitter, they may have succeeded in retaining power.

Now, we continue to examine the wreckage that the censorship regime induced. Inflation, learning loss, vaccine injuries, crises of confidence in our institutions, and our staggering national debt are just a few long-term symptoms of their malfeasance.

President Trump’s return to power partially revealed the censors’ misdeeds. Mark Zuckerberg admitted that Facebook faced “investigation by several agencies” when it refused to “remove Covid related content, even things that were facts, or memes and humor.”

On the first day of his second term, President Trump issued an Executive Order acknowledging that the “government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the government’s preferred narrative about significant matters of public debate.”

At this point, the defendants likely hoped the case was thereby made moot. The Consent Decree is a settlement to which both parties agree. The win for the plaintiffs is real.

Aaron Kheriaty wisely comments: “What we have done with Missouri v. Biden in regard to public opinion is more important than what we accomplished today in the legal court. Our case, along with the Twitter Files, put this issue on the map for the American people. With our 20,000 pages of documents obtained on discovery, we were able to highlight and report on the scope and workings of the government’s Censorship-Industrial Complex.”

The Decree is a win, but it comes nowhere near capturing the seriousness of the reality or the initial court judgment that led to the injunction. Free speech is still in danger, and the fight continues. We have taken a step in the right direction as a start.

---

---

---

Written and Republished with permission by Brownstone Institute.