On July 4, federal Judge Terry A. Doughty in the Western District of Louisiana issued a preliminary injunction in Missouri v. Biden, a case that basically turns Republicans’ fixation on social media censorship into legal reality. The impetus behind the case is the now thoroughly debunked conspiracy theory that the government is somehow strong-arming Big Tech into censoring conservative speech and speakers in violation of the First Amendment.
While there are, in theory, interesting questions about when and how the government can try to jawbone private entities to remove speech from their platforms, this decision doesn’t grapple with any of them. In fact from the 155-page opinion, it’s not even clear this case really raises those questions. Each step in the reasoning of the decision manages to be more outlandish than the last – from the idea that the plaintiffs have standing to the notion that the plaintiffs are entitled to an injunction at this stage of the case to the sweep of the injunction that the district court issued.
But the absurdity of different aspects of the decision in Missouri v. Biden should not obscure the bigger picture of what happened. Invoking the First Amendment, a single district court judge effectively issued a prior restraint on large swaths of speech, cutting short an essential dialogue between the government and social media companies about online speech and potentially lethal misinformation. Compounding that error, the district court crafted its injunction to apply to myriad high-ranking officials in the Biden administration, raising grave separation of powers concerns. And equally troubling is how the court’s order, which prevents the government from even speaking with tech companies about their content moderation policies, deals a huge blow to vital government efforts to harden U.S. democracy against threats of misinformation.
Legal Missteps in the Opinion
Identifying the opinion’s many legal errors would require a lengthy article, so we’ll note just a few.
Bypassing Standing
One error is whether the plaintiffs in the case even have standing (i.e., whether the plaintiffs have established a sufficient risk of future injury to them that is attributable to the government conduct being challenged here). As the case captionsuggests, the plaintiffs in Missouri include several Republican-led states as well as private individuals (including the owner and operator of the Gateway Pundit website).
Take the Republican-leaning states, which have no apparent stake in this case beyond the generalized interest they say their citizens have in posting and reading disinformation. States lack standing to just assert the interests of their citizens. So the district court was forced to assert that the Republican-leaning states nonetheless had standing because they were “being excluded from the benefits intended to arise from participation in the federal system.” Apparently, the Constitution intended to secure to the states the benefits of existing in a cesspool of disinformation about election denialism and covid, or so the district court would have it if this opinion stands.
And that’s to say nothing about whether the plaintiffs’ injuries are caused by the conduct being challenged (namely, the government meeting with social media companies about misinformation). As the court goes on to say, it’s not clear the social media companies would have chosen to keep the misinformation on their platforms without the government’s involvement. But if that’s right, then the plaintiffs’ supposed “injuries” weren’t caused by the conduct they’re challenging, and they’re also not redressable by an injunction barring the government from communicating with the social media companies. Botching the standing analysis isn’t just a theoretical or formalistic error: the Constitution only gives federal courts the power to consider cases that involve actual disputes (also known as cases or controversies) and to redress actual injuries. If the plaintiff lacks standing, the federal court is supposed to dismiss the case. Full stop.
Misapplying the First Amendment
Another serious misstep in the opinion occurred when the court analyzed whether this case involves First Amendment violations that require an injunction. Just to reiterate: there may be circumstances where the government runs afoul of the First Amendment by effectively forcing private companies to remove protected speech – or, for that matter, forcing those companies to say what they don’t believe. But the district court’s analysis does not even purport to seriously engage with the issue of when that might occur. Instead, the opinion seems to maintain that the government cannot even politely askcompanies not to publish verifiable misinformation.
Start with the pedantic: The introduction to the opinion announces that “the purpose of the Free Speech Clause of the First Amendment” is “to preserve an uninhibited marketplace of ideas … rather than to countenance monopolization of the market, whether it be by the government itself or private licensee.” To support that proposition, the district court cited Red Lion Broadcasting Co, a case where the Supreme Court upheld the Federal Communication Commission’s decision to require a private entity (a radio company) to provide airtime to persons who were criticized in a previous broadcast. That decision, far from supporting the district court’s peculiar ruling, points in the opposite direction: it supports the government’s authority to regulate speech – and indeed to compel speech – on private platforms in certain circumstances.
There is also considerable precedent that recognizes that the government can ask private parties to remove content. That precedent exists for a reason; if it didn’t, the government couldn’t communicate with private parties about their content moderation policies, or whether (hypothetically) foreign governments were trying to make certain content go viral in order to reduce voter turnout, inflame divisions, or make the country less safe. There are myriad legitimate and indeed compelling reasons the government might have to ask social media companies to remove content. And the First Amendment certainly doesn’t prevent them from merely asking. To treat the First Amendment as creating something like a wall of separation between government and powerful private actors is utterly bizarre. It would turn the Constitution’s protection of free expression in an open society into an obstacle course for some of the most valuable exchanges of information and ideas we can imagine.
The district court cited all the precedent supporting this public-private dialogue before cavalierly dismissing it, in part by declaring that “what is really telling is that virtually all of the free speech suppressed was ‘conservative’ free speech.” As if the cases that supported the government all of a sudden didn’t matter because this case involves conservatives? (One side note: Several of the allegations in the complaint occurred during the Trump administration. Communications between social media companies and government officials happen no matter who’s in power, and the First Amendment is not supposed to lean right or left.)
There is also the fact that the district court made no effort to identify circumstances where the government came even close to coercing social media companies into doing something they didn’t want to do. Take the allegations concerning hydroxychloroquine. On pages 52-53 of the opinion, the district court recites the very serious allegation that the Department of Health and Human Services “suppressed speech on hydroxychloroquine” by having Dr. Anthony Fauci make “statements on Good Morning America and on Andrea Mitchell Reports that hydroxychloroquine is not effective.” The next sentence then reports that, after this apparently very coercive Good Morning America appearance, “social-media platforms censored” videos and material that were pro-hydroxychloroquine. That must have been quite the Good Morning America appearance. But joking aside: A government official appearing on a television show and stating that certain speech is disinformation does not come even remotely close to the government coercing social medial companies into removing that speech.
More generally, the district court’s theory seems to be that tech companies were “coerced” to take action simply by virtue of having meetings with the government. (No really, on page 93, the court declares that “Defendants used meetings and communications with social-media companies” and “flagged posts and provided information” about concerning posts. We’re meant to find that shocking!) The district court even maintained that it doesn’t matter “what decision the social-media company would have made, but whether … the decision is essentially that of the government.” What does that even mean? If the social media companies would have removed the speech no matter what the government did, then the government did not coerce anyone into doing anything, and the social media companies’ decisions wouldn’t be those of the government’s. There are difficult questions out there about when messages – on license plates, say, or in the pronouncements of agricultural industry associations – constitute government speech as opposed to private speech. Suffice it to say this case doesn’t remotely pose such questions.
Granting a Sweeping Injunction
But if we had to choose, the most egregious facet of the decision would probably be the breathtaking scope of the district court’s order. The injunction would insulate social media companies from criticism about their content moderation policies, not just from coercion. The district court blithely announces that it “believes that an injunction can be narrowly tailored to only affect prohibited activities,” but then goes on to issue an injunction that does no such thing. Among other things, the district court’s order prohibits the myriad government defendants from “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.” It also prevents government defendants from “meeting with social-media companies” about the same. They are not allowed to flag certain content or posts, or notify companies to be on the lookout for certain posts. (Nothing in the Supreme Court’s recent decision in United States v. Hansen, which upheld a federal law encouraging unauthorized immigration, supports this result. Hansen interpreted the federal statute to prohibit only the purposeful solicitation of specific acts that violate federal immigration laws.)
And who are the government defendants that are enjoined from communicating or meeting with social media companies? That’s where things get even crazier. The district court wrote its injunction to include the “Department of State” (all of it!), and the “Department of Homeland Security” (all of that one too!). Oh, and the Federal Bureau of Investigations and Department of Justice. It calls to mind the Chief Justice’s accusation from the Texas S.B.8 case argued last term that the United States was “seeking an injunction against the world.”
There is no shortage of errors in this opinion, which is trying to make the infamous “Twitter files” into constitutional law. Who knows whether the equally infamous U.S. Court of Appeals for the Fifth Circuit will correct any of these mistakes (though at least this past term, even the Supreme Court found that the Fifth Circuit’s antics went too far on several occasions). Whatever ultimately happens in this case shouldn’t cause us to lose sight of the fact that this decision, if left standing, will make us less secure as a nation and will endanger us all every day the injunction remains in force.
