Alas, federal District Judge Terry A. Doughty’s preliminary injunction against government censorship of us on social media has been put on hold.
So rules three members of the Fifth Circuit Court of Appeals. But this stay of the injunction in State of Missouri et al. v. Joseph R. Biden Jr. et al. is temporary. NBC News reported a couple of weeks ago that “a different panel drawn from the [same appellate] court, which has 17 active members, will hear arguments on a longer stay.” The matter could be resolved quickly though because the three judges “called for arguments in the case to be scheduled on an expedited basis.”
So for now, however, we’re back where we started. Judge Doughty had turned down the government’s first request that the injunction be put on hold, writing,
Defendants argue that the injunction should be stayed because it might interfere with the Government’s ability to continue working with social-media companies to censor Americans’ core political speech on the basis of viewpoint. In other words, the Government seeks a stay of the injunction so that it can continue violating the First Amendment.
You gotta love this guy!
In light of the stay, let’s look closely at Judge Doughty’s reasons for forbidding federal agencies and personnel from indirectly censoring the public’s constitutionally protected speech by pressuring social media to delete or suppress posts they dislike. He spelled out the grounds in great detail in his 155-page ruling.
Recall that the states of Missouri and Louisiana and several private individuals sued the Biden administration, claiming that it is doing what it may not do even indirectly, censoring constitutionally protected speech by putting all sorts of pressure on social-media companies. This was used to silence dissenters whether or not their posts contained true or false information. The posts and links were related to the COVID-19 pandemic, the Hunter Biden laptop, and other subjects. (For background, see my articles here and here.)
Under the First Amendment (and common-sense morality), of course, the government may not censor us directly. The Supreme Court has clearly said that the government also may not require private companies to do censoring for it. Any “request” from the government always carries the implicit threat of reprisal should the recipient of the request say no.
To begin with Doughty’s conclusion:
The Plaintiffs are likely to succeed on the merits in establishing that the Government has used its power to silence the opposition. Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; opposition to the lab-leak theory of COVID-19; opposition to the validity of the 2020 election; opposition to President Biden’s policies; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power. All were suppressed. It is quite telling that each example or category of suppressed speech was conservative in nature. This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech. American citizens have the right to engage in free debate about the significant issues affecting the country. 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. [Emphasis added.]
The Plaintiffs have presented substantial evidence in support of their claims that they were the victims of a far-reaching and widespread censorship campaign. This court finds that they are likely to succeed on the merits of their First Amendment free speech claim against the Defendants.
Note that he twice says the Plaintiffs are likely to succeed in their suit. That’s one of the criteria for a preliminary injunction while a case is still in progress. Should the plaintiffs lose, his injunction would be null and void. But given the subject – the First Amendment and free speech – Doughty is pretty sure they are not going to lose. He also was persuaded by the plaintiffs that if he did not stop the government right now, “irreparable harm” would ensue.
Doughty opened his opinion with this:
This case is about the Free Speech Clause in the First Amendment to the United States Constitution. The explosion of social-media platforms has resulted in unique free speech issues – this is especially true in light of the COVID-19 pandemic. If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history. In their attempts to suppress alleged disinformation, the Federal Government, and particularly the Defendants named here, are alleged to have blatantly ignored the First Amendment’s right to free speech. [Emphasis added.]
This is remarkable. Since Doughty thinks the plaintiffs are likely to prevail, he must also agree that the case “involves the most massive attack against free speech in United States’ history.”
If you wonder whether that’s an exaggeration, peruse the judge’s ruling. It details the offenses and justifies the application of his injunction to each of the named defendants. It’s breathtaking.
Sheldon Richman is the executive editor of The Libertarian Institute and a contributing editor at Antiwar.com. He is the former senior editor at the Cato Institute and Institute for Humane Studies; former editor of The Freeman, published by the Foundation for Economic Education; and former vice president at the Future of Freedom Foundation. His latest books are Coming to Palestine and What Social Animals Owe to Each Other.
