TGIF: Free Speech Affirmed -- Pretty Much

The preliminary injunction against federal censorship of social-media users has survived the Biden administration's appeal. However, it remains on hold until Sept. 22 while the Supreme Court considers the matter.

The latest ruling, 78 pages long, by a panel of Fifth Circuit Court of Appeals judges, affirmed the core of District Judge Terry Doughty's July 4 preliminary order, but the revised order has two big differences. The appellate judges exempted some defendants and narrowed Judge Doughty's list of prohibited actions to just one modified but broad prohibition. We'll have to see how that works out, but the court has certainly admonished Biden officials for censoring Americans' speech by systematically leaning -- sometimes very heavily -- on the social-media companies.

The New Civil Liberties Alliance (NCLA), which represented some of the plaintiffs, commented, "Today’s order should stop that conduct."

Recall that Judge Doughty's ruling in the suit filed by Missouri and Louisiana on behalf of its residents, along with several private individuals, including COVID-19 dissident Drs. Jay Bhattacharya and Martin Kulldorff. Doughty had agreed that the plaintiffs had shown that the federal government, through repeated contacts with social-media personnel, had perpetrated “arguably the most massive attack against free speech in United States history.” He likened the Biden administration's efforts to "an Orwellian Ministry of Truth.”

The upshot of the ruling is that when the government "suggests" to Facebook or X that certain posted material is, well, unhelpful, concerning, or even dangerously misleading, it constitutes implicit censorship in violation of the First Amendment. Why? Because some government officials are in a position to punish (through antitrust action, civil-liability rules, or regulation) uncooperative parties. Therefore, even recommendations or pleas to remove or suppress posts necessarily carry a veiled threat. In the present case, the appellate judges write, the threats were sometimes stark naked.

It is well-established in law that what the government may not do directly -- say, block expression -- it may not do indirectly, such as by pressuring private companies to in effect censor.

The judges' panel recapped the findings:

For the last few years—at least since the 2020 presidential transition—a group of federal officials has been in regular contact with nearly every major American social-media company about the spread of “misinformation” on their platforms. In their concern, those officials—hailing from the White House, the CDC, the FBI, and a few other agencies—urged the platforms to remove disfavored content and accounts from their sites. And, the platforms seemingly complied. They gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed users. The platforms also changed their internal policies to capture more flagged content and sent steady reports on their moderation activities to the officials. That went on through the COVID-19 pandemic, the 2022 congressional election, and continues to this day.

Enter this lawsuit. The Plaintiffs—three doctors, a news website, a healthcare activist, and two states—had posts and stories removed or downgraded by the platforms. Their content touched on a host of divisive topics like the COVID-19 lab-leak theory, pandemic lockdowns, vaccine side effects, election fraud, and the Hunter Biden laptop story. The Plaintiffs maintain that although the platforms stifled their speech, the government officials were the ones pulling the strings—they “coerced, threatened, and pressured [the] social-media platforms to censor [them]” through private communications and legal threats.

The judges pointed out in great detail that the "platforms were apparently eager to stay in the officials’ good graces" and did not just wait for suggestions about stifling dissent. That sounds like the Stockholm syndrome. But their efforts to please their overseers weren't always enough: "The officials were often unsatisfied. They continued to press the platforms on the topic of misinformation throughout 2021." A powerful thirst can be hard to quench.

The judges reversed the injunction against three defendants: the National Institute of Allergy and Infectious Diseases (which Anthony Fauci ran until he retired), the State Department, and the Cybersecurity and Infrastructure Security Agency. The judges wrote: "We find the district court erred in enjoining these other officials. Put simply, there was not, at this stage, sufficient evidence to find that it was likely these groups coerced or significantly [encouraged] the platforms."

The White House, the Surgeon General, the CDC, and the FBI continue to be enjoined.

A preliminary injunction, of course, aims at future behavior, which the government unsurprisingly objects to. In rejecting the defendants' appeal, the judges responded refreshingly, "The district court found that the Plaintiffs submitted enough evidence to show that irreparable injury [from First Amendment violations] is likely to occur during the pendency of the litigation."

Put another way, the district and appellate judges do not believe the executive branch when it says in effect, "We didn't do it, and we promise never to do it again."

As for the modification of Judge Doughty's prohibitions, the judges found that his list had too many vague and overlapping items. So it struck down all but one and modified it. The edited version now reads:

Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.

That looks pretty good, doesn't it? We'll see how all this works out in practice. The next move is the Supreme Court's.

 

 

TGIF: Shame on Government for Censoring Us

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.

 

TGIF: Paternalists Cross the Free-Speech Line

Some pundits are puzzled that respectable mainstream Democrats and  "progressives" are no longer free-speech absolutists but rather are enthusiastic defenders of the government's massive effort to squelch expression on the social media platforms. (Glenn Greenwald is one of those puzzled pundits.)

The center-left goes so far as to smear the exposers and critics of government censorship as tin-foil-hatted conspiracy theorists. For example, Matt Taibbi is called a "so-called journalist" for his work on the Twitter Files, despite his award-winning career in investigative reporting. And look how hysterically the center-left reacted to a judge's preliminary injunction against government pressure on social media to suppress dissenting and inconvenient posts.

But why should those pundits be agape? If censorship (by which I mean government suppression of expression) is motivated at least in part by the paternalist desire to protect people from themselves, then I don't see why the censorship arrow would not be in the paternalist's quiver. Any consistent paternalist would believe that the unenlightened public can't be sensible enough to sift "information" from "mis- and disinformation" and read only the "proper" things.

Maybe the paternalists took longer to cross the free-speech line than they might have -- the First Amendment is a powerful taboo in America-- but cross it they now have. Is that so mysterious?

The statement The center-left is paternalist should occasion no controversy. We already knew that. (Of course, it has no monopoly on paternalism, but it is a strong element there.) Government interference with people's freedom to choose in the market is always proposed at least partly to protect them from themselves.

I acknowledge that the line between intending to protect people from themselves and intending to protect them from others can be blurry. Both rationales qualify as paternalistic, and both have been used to limit speech: think of the laws restricting commercial speech. But the former is definitely present.

Classical liberals have rejected that sort of paternalism. John Stuart Mill (not the most hardcore classical liberal) wrote:  "The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant." (On Liberty) That is, the government should not protect people from themselves.

It's not just classical liberals and full libertarians who have criticized paternalism, or nanny statism. We've all heard that "the road to hell is paved with good intentions." We've been told that the words most to be feared are "I'm from the government and I'm here to help you." It's been said that "a government powerful enough to do everything for you is powerful enough to do anything to you." In politics the term do-gooder is an insult.

I admit that the paternalist's defense of invasive government action might be a lie to cover another objective, such as power or unearned financial gain. But I see no reason to doubt that the expression of paternalism is usually sincere. I'm not saying that sincerity is a good defense of paternalism. We might want to despise the paternalist who really means it even more than the liar because as C. S. Lewis wrote:

Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.

Lewis was no libertarian, so here's Lysander Spooner in No Treason: The Constitution of No Authority:

The fact is that the government, like a highwayman, says to a man: Your money, or your life. And many, if not most, taxes are paid under the compulsion of that threat.

The government does not, indeed, waylay a man in a lonely place, spring upon him from the road side, and, holding a pistol to his head, proceed to rifle his pockets. But the robbery is none the less a robbery on that account; and it is far more dastardly and shameful.

The highwayman takes solely upon himself the responsibility, danger, and crime of his own act. He does not pretend that he has any rightful claim to your money, or that he intends to use it for your own benefit. He does not pretend to be anything but a robber. He has not acquired impudence enough to profess to be merely a “protector,” and that he takes men’s money against their will, merely to enable him to “protect” those infatuated travellers, who feel perfectly able to protect themselves, or do not appreciate his peculiar system of protection. He is too sensible a man to make such professions as these. Furthermore, having taken your money, he leaves you, as you wish him to do. He does not persist in following you on the road, against your will; assuming to be your rightful “sovereign,” on account of the “protection” he affords you. He does not keep “protecting” you, by commanding you to bow down and serve him; by requiring you to do this, and forbidding you to do that; by robbing you of more money as often as he finds it for his interest or pleasure to do so; and by branding you as a rebel, a traitor, and an enemy to your country, and shooting you down without mercy, if you dispute his authority, or resist his demands. He is too much of a gentleman to be guilty of such impostures, and insults, and villanies as these. In short, he does not, in addition to robbing you, attempt to make you either his dupe or his slave.

I also acknowledge that honest paternalists are happy to join with (usually tacitly) seekers of unearned income in pressing their policy preferences. Don't forget the "bootleggers and Baptists" phenomenon. That's Bruce Yandle's term for when preachers, for example, team up with moonshiners to make or keep liquor illegal. That doesn't change what the paternalists are up to.

The point is that for a long time American paternalists drew the line at the First Amendment because censorship was such a taboo. Alas, that taboo is gone.

 

 

TGIF: Good News on Free Speech -- for Now

Occasionally, the news makes one cheer. That's the case with a preliminary injunction granted this week (July 4) to stop the federal government from suppressing lawful speech on social media. U.S. District Court Judge Terry A. Doughty took the action in the case of State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al. (which I wrote about last year). The pending lawsuit challenged, among other things, the government's power to cajole, lean on, and otherwise less-than-explicitly compel Twitter, Facebook, and the other platforms to remove or suppress lawful speech that federal authorities deem to be dangerous "disinformation" or "misinformation."

The government's conduct related to posts about the COVID-19 pandemic -- including masks, vaccines, and the possible U.S.-funded/Chinese-lab origin -- figures heavily in the lawsuit. But other reasons for suppression and any future suppression are also in the crosshairs. The idea behind the suit is that under the First Amendment, the government may not do indirectly what it is constitutionally barred from doing directly.

We must understand that the motives for government censorship are irrelevant. Even with the best motives in the world -- say, to safeguard public health during a dangerous pandemic -- the government may not suppress speech directly or threaten to regulate private companies if they don't do the suppressing. This, of course, is exactly what the government did, as we know from the Twitter Files and many other sources.

Of course, as a preliminary injunction, the ban is not permanent. That must await a full airing of the case. Still, it's something to cheer about. A whole slew of federal agencies and officials are ordered not to interfere with social media -- which means with the people who use social media. It doesn't mean that the platforms, which after all are private companies, can't do their own interfering. It just means that for now, government officials can't even raise an eyebrow to signal that lawful posts should be taken down. (The courts have long held that some speech, such as defamation and outright direct incitement to violence, is not protected by the First Amendment. Whether this leaves the government too much leeway is not the issue here.)

Under the judge's temporary order, the agencies and officials "are hereby enjoined and restrained from ... meeting with social-media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms."

But that's not all. The defendants are also prohibited from "specifically flagging content or posts on social-media platforms and/or forwarding such [posts] to social-media companies urging, encouraging, pressuring, or inducing in any manner [emphasis added] for removal, deletion, suppression, or reduction of content containing protected free speech." How about that!

Other forbidden activities name are:

urging, encouraging, pressuring, or inducing in any manner social-media companies to change their guidelines for removing, deleting, suppressing, or reducing content containing protected free speech;

emailing, calling, sending letters, texting, or engaging in any communication of any kind with social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech;

collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group for the purpose of urging, encouraging, pressuring, or inducing in any manner removal, deletion, suppression, or reduction of content posted with social-media companies containing protected free speech;

threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech;

taking any action such as urging, encouraging, pressuring, or inducing in any manner social-media companies to remove, delete, suppress, or reduce posted content protected by the Free Speech Clause of the First Amendment to the United States Constitution;

following up with social-media companies to determine whether the social-media companies removed, deleted, suppressed, or reduced previous social-media postings containing protected free speech;

requesting content reports from social-media companies detailing actions taken to remove, delete, suppress, or reduce content containing protected free speech; and

notifying social-media companies to Be on The Lookout (“BOLO”) for postings containing protected free speech.

The judge also made clear what he was not forbidding the government from doing. This includes telling the social-media companies about criminal activity and national security threats, "exercising permissible public government speech promoting government policies or views on matters of public concern," and "communicating with social-media companies about deleting, removing, suppressing, or reducing posts on social-media platforms that are not protected free speech by the Free Speech Clause in the First Amendment to the United States Constitution."

Whether the government will use the exceptions to get around the injunction remains to be seen. Some worry it will, and given what we know about government officials, who would be surprised? Vigilance is the price of liberty. Nevertheless, supporters of paternalistic government suppression of free speech, including establishment reporters (!) and pundits, are alarmed by the broad scope of the preliminary injunction. (On the concerns that the injunction is both too broad and too narrow, see this.)

The injunction, wrote the judge, "shall remain in effect pending the final resolution of this case or until further orders issue from this Court, the United States Court of Appeals for the Fifth Circuit, or the Supreme Court of the United States." The plaintiffs only ask the court to declare that the defendants broke the law by interfering with free speech and to forbid government officials from doing it again.

Alas, the U.S. government today can do almost anything it wants. Fortunately, a few things still stand in the way, as some recent Supreme Court rulings have demonstrated. The First Amendment is one of those things. But how long will it remain that way?

Don't Be Silent

We should reject the fashionable idea that one should never write or post anything that possibly could be used by bad people for bad purposes. That admonition brings two things to mind.

First, it fails its own test. If good people avoid a topic because even constructive analysis might be put to bad use, the very avoidance will likely fuel conspiracy theories about how this or that interest group controls the public debate. Thus the fashionable idea is self-subverting — much as the precautionary principle is.

Second, it reminds me of what Ludwig Wittgenstein, in a very different context, wrote in concluding his Tractatus Logico-Philosophicus: “Whereof one cannot speak, thereof one must be silent.” There are no chilling implications in Wittgenstein’s maxim because he literally meant can not, as opposed to may not. The same can’t be said for the fashionable maxim.

TGIF: Why Can't You Shout "Fire!" in the Virtual Public Square?

Almost 10 years ago the free-speech champion Trevor Timm, with the Electronic Frontier Foundation at the time and now with the Free of the Press Foundation, implored readers "to stop using the ‘fire in a crowded theater’ quote" to justify limits on free expression. Many people apparently need a reminder.

Timm wrote, "[Supreme Court Justice Oliver Wendell] Holmes [Jr.'s]' quote has become a crutch for every censor in America, yet the quote is wildly misunderstood." To dispel the misunderstanding, Timm told the story behind the quotation.

The Court opinion containing the quote is from Schenck v. United States (1919), a notorious anti-free-speech case in which Charles Schenck and Elizabeth Baer had been convicted and sentenced to six months in prison during World War I under the federal Espionage Act for mailing 15,000 pamphlets urging soon-to-be-drafted men "not [to] submit to intimidation" and to "Assert your rights." The pamphlet did not advocate violent resistance but stated that the draft violated the 13th Amendment, which bans slavery.

The Court ruled unanimously against the defendants on the grounds that distributing the material was a "clear and present danger" during wartime. Holmes noted that the pamphlet would have been constitutionally protected in peacetime, but in 1917 the rules were different. To emphasize the point, Holmes wrote, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

Schenck stood as a precedent until 1969, when it was overturned in Brandenburg v. Ohio. Nevertheless, Holmes's trope is wheeled out today against almost anyone who expresses concern about the limitations on the free exchange of ideas on social networks, especially when the controversy concerns criticism of any aspect of "wokeism," for example, the ideologies underpinning "anti-racism" and "trans-genderism." If someone publicly expresses uneasiness at people being suspended from or kicked off social-media platforms for innocuous posts that come nowhere near threatening or inciting violence, the other side will likely quote Holmes to justify the punishment.

It should be too obvious to have to point out that Holmes's dictum is irrelevant to such episodes. Before we get to that, however, let's put on this on the record: although they may be under great government pressure to crack down on certain real or alleged misinformation and disinformation, the social-media platforms are private companies with the right to set their terms of use. But that does not mean having a low bar for expulsion is a good policy. Social networking, to the extent it is to have political value, ought to be an open forum. Kicking people off even for lying about election results or (justifiably) criticizing rules about permissible pronouns is not only obnoxious; it also makes a mockery of what the platforms themselves say they aspire to be.

With that out of the way, we can move on to the main course. None of the targets to which Holmes's trope is aimed bears any resemblance to the literal case of falsely shouting fire in a theater. We can break this down into two parts.

The first concerns the unreasonable shouting of anything, even "Chocolate!" in a theater, crowded or not. If I buy a ticket to a concert, play, or movie, I have at least an implicit contract with the theater owner that I will not disrupt the show (without a darn good reason) and spoil it for the other patrons. If that contractual term were not assumed, the owner would be defrauding all the customers. Would you buy a ticket to a show knowing that anyone in the audience was permitted to make noise?

Just as I cannot eat in a restaurant and refuse to pay by claiming that I never explicitly agreed to pay for the meal, so I cannot make a ruckus in a theater on grounds that I never agreed not to do so. We can go further and point out, as Murray Rothbard did, that even the theater owner may not unreasonably disrupt the show without violating the contract with his customers:  If he does, "He has thus welshed on this contractual obligation, in violation of the property rights of his patrons."

Rothbard's point is that freedom of speech is not some free-floating right. To make sense it must be rooted in property rights. No one has a right to make a speech in your living room without an invitation. The corollary, he points out, is that so-called public, that is, government-controlled, land presents insoluble conflicts. When demonstrators want to block a busy street during rush hour, whose rights should prevail: theirs or the drivers'.

As I say, this goes for any shouting. But let's move on to the issue of content. Falsely shouting fire adds potential injury or death to the insult because the patrons do not have the luxury of checking out the shouter's claim. Maybe it's a false alarm, but waiting to find out could cost them their lives. Obviously, if the shouter knows the place is on fire, he's done his fellow patrons a favor.

How does this relate to social media? Nothing anyone can say on Twitter can compare to the potentially deadly disruption that would occur with a false shouting of fire in a theater. Even if Donald Trump tweets a million times a day -- falsely -- that his landslide reelection in 2020 was stolen from him, the mechanism for harm just is not present. No one reading Trump's tweets, as obnoxious as they would be, would have to rush out of wherever he is merely to save his life and possibly endanger others as he does so. It's simply ridiculous to compare the two situations.

A tweet might offend people -- if they choose to take offense -- or it might hurt someone's feelings. But let's get real: that bears no resemblance to endangerment. But what if someone else reads the tweet and then feels motivated to commit violence? That person is an aggressor who is fully responsible for his actions. He must not be permitted to plead that the tweet caused or incited him to commit violence. He is an agent.

Rigid controls on social media cannot be justified on "clear and present danger" grounds. In other words, it's impossible to shout "Fire!" on social media, and we are justified in criticizing platform owners who insist on punishing their guests for what they say. It's easy enough to avoid your fellow guests whom you find obnoxious.

So let's finally put Holmes's trope to rest. It has no power to justify restrictions on expression that does not directly and immediately endanger others.

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