Free Speech Upsets Powers That Be

The Biden administration, along with mainstream politicians and journalists, are really upset that U.S. District Judge Terry A. Doughty has forbidden the executive branch of the central government from communicating with social-media platforms for the purpose of censoring or otherwise suppressing constitutionally protected speech. Judge Doughty’s action came in an important free-speech lawsuit filed against the government.

He wrote in an accompanying statement:

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.”

So-called respectable government officials, journalists, and pundits — the alleged adults in a room — consider the judge’s temporary injunction the worse thing that could possibly happen. The headline in the “progressive” publication The American Prospect screamed in panic: “Trump Judge Effectively Names Himself President.” (That “Trump judge,” by the way, was confirmed by the Senate 98-0.)

Imagine it: agents from the FBI, the Department of Homeland Security, and other government agencies may not even “suggest” to Facebook, Twitter, etc., that they ought to take down or hide posts that take issue with the government’s official line about … whatever. Of course, when government officials suggest something to a private party, the suggestion may be interpreted as being accompanied by the subtle threat to retaliate legally if the suggestion is ignored. Think of protection racketeer telling a shop owner, “You have a nice place here. It would be a shame if it burned down.” Get the picture?

As we know, the government has been doing stuff like this for years, whether the matter was related to the COVID-19 pandemic, the Hunter Biden laptop, the Russia-Ukraine war, Russia’s alleged collusive 2016 election tampering, and who knows what else. According to a congressional committee, the FBI apparently even collaborated with Ukrainian intelligence to censor Americans’ frowned-on discussion of the Ukraine war on social media.

The posts that government agencies wanted suppressed included not only statements that were perhaps provably wrong — incorrect speech per se is constitutionally protected, incidentally — but also accurate information that the government simply found inconvenient, like posts and links that might make people hesitate to get the COVID-19 vaccine, wear masks, accept totalitarian social lockdowns, or trust that the coronavirus came from a Chinese market rather than a U.S.-funded lab in Wuhan, China.

Let’s remember that much of the challenge to the government’s take on the pandemic and other matters — criticism belittled as “tin-foil” conspiracy-mongering — turned out to be true. Contrary to the government’s position, the search for the truth requires the freedom to openly disagree and debate. That search abhors centralization, coercion, and the exclusion of anyone but the politically anointed “experts.” The right to free speech is a practical necessity if we are to pursue our well-being. Any step toward the paternalistic centralization of research and control of communication is not only immoral (by whatever standard you like) but also inimical to health, wealth, and other aspects of a fully human way of life.

In other words, as the judge acknowledged, the central government has gone to extraordinary lengths to control what the public can read and say on social media. It’s as if free speech were not a pillar of liberal philosophy and tradition — liberal in the older and best sense of a presumption of individual liberty in all spheres. Further, it’s as if the first restriction on government power in the Bill of Rights was not the absolute prohibition on the infringement of free speech and press. It’s a well-established principle of American law that the government may not pressure private parties to do what it itself may not constitutionally do. Yet that’s exactly what happened — repeatedly. It’s a disgrace. How can the government be trusted? It never could be.

Since the Biden administration, urged on by the power elite and the insecure establishment media, does not like being told that it may not violate our freedom of speech, it asked Judge Doughty to suspend his temporary injunction while the Justice Department appeals it. Judge Doughty said no. So the action moved to the appellate court. The Washington Post said that “The Justice Department’s filing signaled that it could seek the intervention of the Supreme Court, saying that at a minimum, the 5th Circuit should put the order on pause for 10 days to give the nation’s highest court time to consider an application for a stay.”

I sense desperation. The judge must have done something right. Remember that the injunction, alas, does not bar all government contact with social-media companies: he listed exceptions for actual criminality and national security. Only interference with constitutionally protected expression was included. I don’t remind readers of these exceptions to comfort them — the government will likely abuse the exceptions. I remind readers only to show that the order contains those exceptions. So what is the government so worried about? It says that the judge’s order is hopelessly vague and doesn’t address every possible eventuality. The answer is easy: if the choice is between vagueness in restricting government power and violating individual liberty, I know which I prefer. This is supposed to be America, isn’t it? Rights precede government.

Good people have enough to be concerned about when it comes to social media restricting their expression. Yes, they are private companies, and it’s easy to think of people who are so obnoxious that one wouldn’t want to encounter them online.

On the other hand, no one has reason to be confident that Twitter, Facebook, YouTube (Google), etc., will use exercise that right judiciously. That you have a right to do something does not mean you should do it. Can does not imply ought. YouTube reportedly deleted Jordan Peterson’s interview with Robert F. Kennedy Jr. because it contains what it regards as — and well may be — misinformation about vaccines. Kennedy is challenging Joe Biden for the 2024 Democratic presidential nomination. One need not agree with Kennedy on vaccines (I’m inclined not to) to be uneasy about YouTube’s decision. We also can’t rule out that YouTube acted in anticipation of the government’s disapproval. Government casts a shadow over everything.

We mustn’t call on the government to manage social media through antitrust or regulation. We should favor real competition. But we should insist on a prohibition of government action, direct and indirect, to suppress speech on those platforms or anywhere else. Judge Doughty understands that. Let’s hope other judges do too.

Sheldon Richman is the executive editor of The Libertarian Institute and a contributing editor at 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 book is What Social Animals Owe to Each Other.