This article is a repost with permission from Brownstone Institute.
Despite the uproar surrounding the case, Judge Terry Doughty’s order in Missouri v. Biden was straightforward. It prohibited government actors from colluding with social media companies to censor “content containing protected free speech.”
In other words, the defendants – including the White House, the CDC, and the Department of Justice – must obey the Constitution they swore to uphold by adhering to the First Amendment. The censorship regime responded with familiar doublethink: denying the censorship exists while arguing that it must continue.
On Tuesday, the court held a hearing to consider whether Judge Doughty’s order should be reinstated. The oral arguments revealed the government’s three-part strategy: deny, deflect, and defend. Its lawyers denied the established facts, deflected from the controversy, and defended its actions through outlandish justifications.
In doing so, they demonstrated the censorship apparatus’s lack of remorse for stripping Americans of their constitutional liberties. Even worse, they insist that the totalitarian operations must continue.
- Deny: Blame the Facts
At the hearing, government defendants maintained that plaintiffs have manufactured the case. Like their allies in the media, they argued that allegations of censorship were nothing more than “an assortment of out-of-context quotes and select portions of documents that distort the record to build a narrative that the bare facts simply do not support.”
The censorship is nonexistent, they insist. It is a “thoroughly debunked conspiracy theory,” in the words of Larry Tribe.
Unlike issues of legal interpretation, this is a factual matter. Either government actors colluded with Big Tech to suppress Americans’ free speech rights or they did not. Discovery revealed extensive documentation proving that they did, and the defendants make no effort to explain how Judge Doughty’s 155-page order detailing dozens of violations of the First Amendment is merely “an assortment of out-of-context quotes.”
Journalists including Matt Taibbi, Michael Shellenberger, and Alex Berenson have detailed the “censorship industrial complex,” the entangled web of government agencies, NGOs, and private-public partnerships that seek to control the free flow of information. But reviewing that series of connections and collusions is unnecessary – the defendants’ recorded statements contradict their denial.
“Thank you for the ongoing collaboration,” one bureaucrat wrote after a US Government “industry meeting” with Big Tech companies in October 2020.
White House Advisor Rob Flaherty took a different tack in his demands to Twitter: “Please remove this account immediately.” The company complied within an hour. “Are you guys fucking serious?” he wrote to company officials after they failed to censor critics of the Covid vaccine. “I want an answer on what happened here and I want it today.” His boss was similarly direct regarding posts from RFK, Jr. “Hey Folks-Wanted to flag the below tweet and am wondering if we can get moving on the process of having it removed ASAP.”
There is no need to recreate Judge Doughty’s 155-page opinion, but the denial of the censorship regime is facially absurd. Alex Berenson’s case, the revelations of the Twitter files, and the undisputed facts of Missouri v. Biden refute the defendant’s premise.
- Deflect: Blame the Russians
Rather than address the case’s inconvenient facts, government lawyers quickly pivoted to their second tactic: deflection. They avoided the case and Judge Doughty’s ruling in favor of a hypothetical narrative.
At one point, they defended government agencies’ right to issue health advisories that say “the vaccines work or smoking is dangerous.” They argued, “There’s nothing unlawful about the government’s use of the bully pulpit.” That reasoning was uncontroversial, but it was not responsive to Judge Doughty’s order.
Under Doughty’s ruling, the White House can denounce journalists, deliver press briefings, publish on social media, enjoy the bully pulpit, and take advantage of the friendly media environment; it just can’t encourage private companies to censor constitutionally protected speech.
The defense conflates free speech with control over information to deflect attention from the censorship at issue. The tactic is not limited to the government’s powers under the order.
During the hearing, the judge asked the defense attorneys whether saying “the COVID vaccine does not work” is constitutionally protected free speech. “That speech itself could be protected,” the attorney responded at one point. After repeatedly refusing to concede that the First Amendment protects political opinions that deviate from President Biden’s agenda, he resorted to Russian fear-mongering.
“Let’s say it was spoken by a covert Russian operative, that would not be protected by free speech,” he told the judge. Like the issue of the government’s “use of the bully pulpit,” restricting Russian operatives’ speech is unrelated to Judge Doughty’s order.
The attorney’s refusal to defend basic First Amendment liberties was telling. The defense instinctively changed the issue from free speech to national security, relying on an oft-used fear tactic to subvert the First Amendment.
These deflections deliberately obfuscated the purpose of the hearings. Defendants implied the plaintiffs sought to ban anti-smoking PSAs and fund Kremlin media campaigns. Like their strategy of denial, the goal was to avoid discussion of their extensive censorship operations.
- Defend: Blame the Virus
When the government was forced to address the case, it resorted to claiming that Covid justified the abolition of constitutional liberties. The pandemic-made-us-censor argument continued the pervasive Doublethink. Eradicating democratic norms was necessary to protect democracy, they reasoned. Previously, the Biden Administration told the court that reversing the order was necessary “to prevent grave harm to the American people and our democratic processes.”
Defendants argued that the evidence of the case vindicates the government actors. The attorneys said “It shows, in the face of urgent crises, a once-in-a-generation pandemic and bipartisan findings of foreign interference with U.S. elections, the government responsibly exercised its prerogative to speak on matters of public concern.”
They continued, “It promoted accurate information to protect the public and our democracy from these threats. And it used the bully pulpit to call on various sectors of society, including social media companies, to make efforts to reduce the spread of misinformation.”
Demonstrating no remorse, they remain proud of their efforts to usurp the First Amendment because of their self-professed noble aims. They expect this defense to evade judicial scrutiny.
When confronted with past censorship – including CISA’s “switchboarding” leading up to the 2020 election – defendants reasoned that prior conduct was not pertinent to the case because plaintiffs could not prove it will happen again.
They described the Department of Homeland Security’s unconstitutional censorship campaigns as “occurring long in the past.” They argued that health officials’ emails working to silence opponents should be disregarded because they were sent “more than two and a half years ago.”
The censorship apparatus is asking the courts to trust them to act responsibly despite repeatedly demonstrating its indifference, or perhaps disdain, toward the First Amendment.
While the government’s denials and deflections are insulting to the citizens they purport to represent, we must remain focused on their aim: they appealed Doughty’s order because they oppose constitutional restraints on their control of information.
We would hope that requiring the government to obey the Constitution would be uncontroversial; now, it may signify whether the rule of law still stands in the United States.
