Below is my column in the Messenger on the recent opinion finding that the Biden Administration is violating the First Amendment through a massive censorship operation. In response, many politicians and pundits are simply repeating the definition of censorship as its defense: we are banning views because they need to be banned. Every authoritarian government in history has justified censoring citizens because their views are harmful or false. Others are only focusing on the injunctive relief rather than the court’s finding that these states are substantially likely to prevail on the merits in showing that the government uses social media companies as surrogates for censorship.
Here is the column:
“The most massive attack against free speech in United States history.” Those words by Chief U.S. District Judge Terry A. Doughty are part of a 155-page opinion granting a temporary injunction, requested by Louisiana and Missouri, to prevent White House officials from meeting with tech companies about social media censorship.
The July 4 decision came six months after I testified before Congress that the Biden administration used social media companies for “censorship by surrogate.” Despite furious attacks by congressional Democrats in that and later hearings, a court has now found that the evidence overwhelmingly shows systematic violation of the First Amendment by the Biden administration. Judge Doughty found that the two states “are likely to succeed on the merits in establishing that the government has used its power to silence the opposition.”
The question is, when will the evidence of systemic censorship force Democrats in Congress to drop their unified opposition to any investigation of this unprecedented partnership of government, corporate and academic interests? That triumvirate arguably has created the most extensive censorship system we have ever seen.
According to Judge Doughty, the government used layers of coordination and consultation to “assume a role similar to an Orwellian ‘Ministry of Truth.’” The court found that “the censorship alleged in this case almost exclusively targeted conservative speech.”
The government is now enjoined from speaking with social media representatives for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.” Exceptions are made for criminal and national security concerns.
The judge’s order names various agencies, including the Department of Justice, State Department, Department of Health and Human Services, and the Centers for Disease Control and Prevention, as well as individual officials like Homeland Security Secretary Alejandro Mayorkas and Jen Easterly, who leads the Cybersecurity and Infrastructure Security Agency.
Mayorkas not only attempted to create the infamous Disinformation Governance Board but has given grants to an array of controversial censorship programs. I also testified recently on the efforts of Easterly, who radically extended her regulatory authority by declaring “critical infrastructure” includes “our cognitive infrastructure” and “building that resilience to misinformation and disinformation.” That included barring “malinformation” that is “based on fact, but used out of context to mislead, harm, or manipulate.” You read that correctly: It can be true information which the government nevertheless believes is being used for a misleading purpose.
The injunction in this case is likely to face tough scrutiny and skepticism on appeal. Doughty was previously rebuked by the U.S. Court of Appeals for the Fifth Circuit when it blocked his order to compel former White House press secretary Jen Psaki to testify in the case.
However, the judge’s temporary-relief order is less important than the judicial scrutiny of this long-concealed network of censorship and blacklisting maintained by the government.
In February’s hearing before the House Select Subcommittee on the Weaponization of the Federal Government, I warned that “the massive censorship system employed by social media companies presents the greatest loss of free speech in our history.” The Trump administration had some back-channel communications with social media companies, but that was radically expanded under President Biden.
Democrats on the committee struggled to ignore the content of the then-recently released “Twitter Files” while attacking every witness who discussed those files.
Rep. Debbie Wasserman Schultz (D-Fla.) criticized me for offering “legal opinions” without working at Twitter. I later noted that it was like saying a witness should not discuss the contents of the “Pentagon Papers” unless he or she worked at the Pentagon. Wasserman Schultz tried to portray the Twitter Files allegations as mere opinions; she cut me off when I tried to explain that the Twitter Files contents — like those of the Pentagon Papers — are “facts,” while the implication of those facts are opinions.
Now, a judge has laid out 155 pages of such facts, in addition to the thousands of pages of the Twitter Files.
It is, however, unlikely to change the Democrats’ scorched-earth strategy of attacking every hearing witness who supported an investigation into government censorship. The attacks have continued in the media, too. Some of those objecting to this censorship were bizarrely denounced as protecting white supremacists and insurrectionists. For example, MSNBC contributor and former senator Claire McCaskill denounced subcommittee witnesses Sen. Chuck Grassley (R-Iowa), Sen. Ron Johnson (R-Wis.) and former Rep. Tulsi Gabbard (D-Hawaii) as “Putin apologists.”
When two journalists testified before the subcommittee about their investigations of censorship programs, Delegate Stacey Plaskett (D-Virgin Islands), the subcommittee’s ranking member, called them “so-called journalists.” Plaskett later suggested one of them, Matt Taibbi, be criminally investigated. Rep. Sylvia Garcia (D-Texas) and other members pressed the journalists to reveal their sources.
These attacks reflect a growing problem for Democrats who have tied the party to the cause of speech limits, blacklisting and censorship. When the party controlled both houses of Congress, these members simply denied allegations of censorship as conspiracy theories and said there was no real evidence while opposing any effort to acquire evidence.
Then Democrats lost control of the House, and Elon Musk purchased Twitter, opening up its files for full public view. The resulting Twitter Files forced everything into the open.
This censorship system included funding groups to blacklist targeted individuals and sites. With the help of companies like Microsoft, federal agencies poured millions into efforts to target not just social media accounts but the advertisers for conservative sites.
As new details emerge, Democrats have doubled down. In one hearing, former Twitter executive Anika Collier Navaroli testified on how she and her staff approached censorship. Navaroli said they pushed to remove anything they considered “dog whistles” and “coded” messaging; she said they refused to prioritize the free speech of posters but, instead, asked “whose free expression are we protecting at the expense of whose safety.” She said they were unwilling to allow the safety of others “to go to the winds so that people can speak freely.”
It was a chilling account of ill-defined, biased censorship. However, committee Democrats heralded her censorship work.
They also clearly agreed with the standard of former Twitter CEO Parag Agrawal that the company would “focus less on thinking about free speech” and more on “who can be heard.” The Twitter Files showed that the federal government supplied thousands of names and sites of precisely who should not be heard.
The left was once the target of censorship and blacklisting during the Red Scare. Today, they have literally adopted the arguments used to target liberals and socialists.
In my hearing, Rep. Dan Goldman (D-N.Y.) quoted from the 1919 decision in Schenck v. United States to justify censoring those with opposing views. When I pointed out that he was quoting from a case justifying the arrest of socialists due to their political views during the Red Scare, Goldman shot back that “we don’t need a law class here.”
They may not “need” such facts — but they, and the public, are going to get them from Congress and the courts. The mantra of “Nothing to see here” is fast becoming an embarrassing case of willful blindness.
Jonathan Turley, an attorney, constitutional law scholar and legal analyst, is the Shapiro Chair for Public Interest Law at The George Washington University Law School.