[Editor’s note: Make sure to read Joseph Klein’s masterpiece contributions in Jamie Glazov’s new book: Barack Obama’s True Legacy: How He Transformed America.]
On Independence Day, a federal district court judge in Louisiana struck a blow for freedom of speech, which has been under attack by the unholy alliance of Big Government and Big Tech for years. The situation has worsened considerably during the Biden administration, which has had a habit of making “requests” to social media companies that they could not refuse.
Several states and individuals brought a lawsuit alleging collusion between various federal government agencies and large social media companies to censure content on social media platforms in violation of the First Amendment. U.S. District Court Judge Terry A. Doughty issued a preliminary injunction temporarily halting government communications with social media companies that could be viewed as attempts to pressure these companies to remove content from their platforms that the government deemed objectionable. Unless lifted by a higher court, the injunction will remain in effect pending a final disposition of the case by Judge Doughty.
The Department of Justice is appealing the decision. Law enforcement agencies expressed concern that they would be inhibited under Judge Doughty’s order from communicating with social media firms regarding potential security threats or criminal activities. But this objection is a red herring. The judge’s order carves out exceptions to the scope of the preliminary injunction that allow the Biden administration to communicate with social media companies about posts involving criminal matters, threats to national security and public safety, and foreign attempts to interfere with U.S. elections.
Judge Doughty’s order focused on government officials’ improper use of strong-arm tactics to get company executives on board to remove material from their platforms that was embarrassing to the Biden family or labeled by the government as “misinformation.” Judge Doughty also noted how law enforcement officials, including the FBI, misused their contacts with social media companies during the 2020 presidential campaign to induce the companies to censor information that the voters had a right to know.
For example, as described in Judge Doughty’s opinion, on February 6, 2021, Rob Flaherty, former Deputy Assistant to the President and Director of Digital Strategy, “requested Twitter to remove a parody account linked to Finnegan Biden, Hunter Biden’s daughter and President Biden’s granddaughter. The request stated, ‘Cannot stress the degree to which this needs to be resolved immediately,’ and ‘Please remove this account immediately.’ Twitter suspended the parody account within forty-five minutes of Flaherty’s request.”
Sorry Mr. Flaherty, but in America the president’s family is not off limits for parody.
Biden administration officials also pressured social media companies to remove content that these Orwellian “Ministers of Truth” claimed was “misinformation” regarding such controversial issues as the COVID-19 vaccine, the lockdown, the coronavirus’s origins, and climate change. The Biden administration both cajoled and threatened social media companies with legal consequences if they did not monitor and remove content that contradicted what the administration considered to be “accurate” information. All too often, the content the social media companies were asked to remove from their platforms turned out to be more scientifically correct than the propaganda the administration was pushing.
The Biden administration claims that it was only encouraging social media companies to be responsible moderators of the content appearing on their sites. The government was just making some helpful suggestions, the administration’s argument goes, but the private companies were always free to make their own business decisions whether to follow the suggestions.
The Biden administration’s pretense of innocence is disingenuous to say the least. Its high-level officials persistently badgered social media company executives to ensure that the companies were aggressively removing content that, for example, the administration believed was exacerbating vaccine hesitancy. The administration demanded regular meetings with company executives as well as detailed reports on actions they had taken to combat the alleged “misinformation,” all to make sure that the companies were meeting the government’s expectations.
Administration officials also delivered veiled threats of antitrust enforcement and possible removal of the legal protection from liability that Section 230 of the Communications Decency Act has granted to social media platforms for third parties’ posts on their sites.
The FBI has maintained its own tight grip on the social media companies. It held weekly meetings with these companies, together with the Office of the Director of National Intelligence and the Department of Homeland Security, regarding election security in the lead-up to the 2020 presidential election.
The then-Head of Site Integrity at Twitter declared in a statement that during these meetings “the federal law enforcement agencies communicated that they expected ‘hack-and-leak’ operations by state actors might occur during the period shortly before the 2020 presidential election, likely in October. I was told in these meetings that the intelligence community expected that individuals associated with political campaigns would be subject to hacking attacks and that material obtained through those hacking attacks would likely be disseminated over social-media platforms, including Twitter. These expectations of hack-and-leak operations were discussed through 2020. I also learned in these meetings that there were rumors that a hack-and-leak operation would involve Hunter Biden.”
The FBI and other federal law enforcement agencies staged a preemptive strike on the credibility of the New York Post story published on October 14, 2020, which revealed the laptop’s existence and disclosed some of its contents. Forewarned to view such a leak with suspicion, Twitter and other social media platforms censured the posting of the New York Post story on their platforms.
The FBI had possession of Hunter Biden’s laptop since 2019 and had reportedly authenticated its contents well before the New York Post story was published. Nevertheless, the FBI agents who communicated with Twitter and other social media companies, including the FBI’s Foreign Influence Task Force (FITF) Chief Laura Dehmlow, hid that fact from them and let the companies proceed to treat the laptop story as Russian disinformation.
“The FBI’s failure to alert social-media companies that the Hunter Biden laptop story was real, and not mere Russian disinformation, is particularly troubling,” Judge Doughty noted. “The FBI had the laptop in their possession since December 2019 and had warned social-media companies to look out for a ‘hack and dump’ operation by the Russians prior to the 2020 election. Even after Facebook specifically asked whether the Hunter Biden laptop story was Russian disinformation, Dehmlow of the FBI refused to comment, resulting in the social-media companies’ suppression of the story. As a result, millions of U.S. citizens did not hear the story prior to the November 3, 2020 election. Additionally, the FBI was included in Industry meetings and bilateral meetings, received and forwarded alleged misinformation to social-media companies, and actually mislead (sic) social-media companies in regard to the Hunter Biden laptop story.”
The federal government agencies were joined at the hip with social media companies to suppress the posting of information that the Biden administration did not want the public to see. Through aggressive jawboning, pressure tactics, veiled threats, and deception, the Biden administration enmeshed itself so heavily in the private social media companies’ actions and decision-making that it was exceedingly difficult to separate the two. The companies ended up serving in too many instances as virtual enforcers of the government’s code of acceptable speech on certain controversial issues, which crossed the line into First Amendment infringement territory.
“In evaluating ‘significant encouragement,’ a state may not induce, encourage, or promote private persons to accomplish what it is constitutionally forbidden to accomplish,” Judge Doughty wrote in his opinion. “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. … Further, oral, or written statements made by public officials could give rise to a valid First Amendment claim where the comments of a governmental official can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.”
In an op-ed article that left-leaning Harvard Law School Professor Laurence Tribe co-authored, this purported constitutional law expert demonstrated the Left’s complete perversion of the purpose of the Bill of Rights. The purpose is to protect the individual from government overreach, not the other way around. But Professor Tribe and his co-author concluded that Judge Doughty’s order protecting individuals’ exercise of their right to free speech on the Internet without governmental interference somehow infringed the government’s “rights.” The op-ed article claimed that Judge Doughty “effectively issued a prior restraint on large swaths of speech, cutting short an essential dialogue between the government and social media companies about online speech and potentially lethal misinformation.”
The government’s “essential dialogue,” as the compelling evidence cited by Judge Doughty demonstrates, was nothing more than government officials’ pressure on social media companies to censure content on their platforms that the government considered objectionable. The government enlisted social media companies to engage in a classic violation of the First Amendment.
We can only hope that Judge Doughty’s order survives on appeal, even if the case has to go all the way up to the Supreme Court.