We’ve heard it a thousand times: “The First Amendment doesn’t apply to private social media platforms.” That statement, however, presumes the private company’s independence from government action. But what if the social media platform defers censorship decisions to the government itself? Can the government circumvent free speech protections by using a cut-out to censor citizen speech critical of its policies or preferred political candidates?
An explosive case filed in the Federal District Court of the Western District of Louisiana may shine a light on the federal government’s role in Big Tech censorship.
On July 12, U.S. District Judge Terry A. Doughty (appointed by President Trump in 2017) granted permission for plaintiffs to conduct discovery into whether federal agencies violated the First Amendment rights of Americans by allegedly directing social media platforms to censor disfavored viewpoints and content. These topics include, “Speech about the lab-leak theory of COVID-19’s origin, speech about the efficiency of masks and COVID-19 lockdowns, and speech about election integrity and security of voting by mail.” More importantly, these agencies stand accused of working with social media companies to suppress, “The Hunter Biden laptop story prior to the 2020 Presidential election.” If true, the government-directed censorship constitutes the most comprehensive interference in a domestic election in the history of the nation.
According to plaintiffs, the alleged government-sponsored tech censorship is ongoing. Plaintiffs filed a “Motion for Preliminary Injunction,” requesting an order prohibiting government defendants from, “taking steps to . . . encourage, pressure . . . any social-media company or platform to censor, suppress,” etc., “. . . any speaker, content, or viewpoint expressed on social media.” The attorneys general for the states of Missouri and Louisiana brought the lawsuit against various federal agencies on behalf of residents of each of these states.
The government opposed the lawsuit arguing that the states lacked standing to challenge government efforts to suppress speech on social media platforms. The court denied this challenge noting the states have standing because the laws and constitution of each state guarantee their residents free speech. The court noted that the lawsuit alleged injuries which, “are ‘imminent’ and allegedly ‘on-going,’ due to allegations of social media suspensions, removals of disfavored viewpoints, and censorship.” Federal agency suppression of citizen free speech, if proven, violates the laws and constitutions of those states.
The plaintiffs seek to force the federal government to reveal “the identities of federal officials who have or are communicating with social-media platforms about disinformation, misinformation . . . or any form of censorship or suppression of online speech,” in addition to “the nature and content of such federal officials’ communication with such social media platforms.” The plaintiffs have also asked for permission to “serve third-party subpoenas,” on selected social media platforms seeking, “similar information about the identity of federal officials who communicate with them, and the nature and content of these communications.”
Anticipating bad-faith objections and legal gymnastics to obstruct discovery, the plaintiffs further requested the court to rule on all objections. The court found, “the requests are reasonable,” and that, “Missouri and Louisiana have shown good cause for expedited,” discovery to aid in the resolution of the requested preliminary injunction. The court granted permission to the plaintiffs to serve the federal agencies with written discovery and third party subpoenas on “up to five major social-media platforms,” regarding the alleged coordination between the government and the platforms to censor and suppress speech. The judge then granted a mere 30 days for the federal agencies to respond.
What’s more, the court informed the federal agencies that it would promptly rule on any attempts to thwart the requests. The court even established a schedule for ruling on the preliminary injunction.
In October 2020, immediately after the release of the Hunter Biden laptop stories, the Daily Mail reported Facebook told Congress that it censored the information after the FBI told the platform that the information came from a “hack and leak” Russian disinformation campaign. The New York Post, which exclusively reported on much of the information, fiercely contested this claim—providing a detailed account of how a computer repair store owner legally obtained the laptop. Indeed, the Daily Mail published copies of a receipt bearing Hunter Biden’s signature which appeared to confirm the Post’s account of the origins of the story.
While the public has known about a letter signed by more than 50 former intelligence officials characterizing the laptop story as Russian disinformation, this is something different. A confirmation that current government officials helped censor the story would represent a significant development in the saga. As noted by the Epoch Times, the media coverup of the Hunter Biden laptop story likely impacted the election outcome. If, as the plaintiffs allege, the social media companies acted at the direction of federal agencies falsely disputing the authenticity of the laptop, such a scandal would raise serious questions about the fairness of the 2020 election.