This is huge deal. This is potentially a landmark case on how the First Amendment applies in the age of social media:
BREAKING🚨: The States of Missouri and Louisiana just obtained a preliminary injunction in a separate lawsuit against the federal government about the censorship regime. 👀 https://t.co/RRcSCeQaPg pic.twitter.com/ibLPR2AJ8j
— America First Legal (@America1stLegal) July 4, 2023
We have been following this case out of the corner of our eye for a while. While we haven't read the full 155-page opinion just yet, some of the allegations up front should start to show you why this case matters, especially if you are a conservative who believes you have had your speech suppressed:
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.
…
Plaintiffs allege that Defendants, through public pressure campaigns, private meetings, and other forms of direct communication, regarding what Defendants described as “disinformation,” “misinformation,” and “malinformation,” have colluded with and/or coerced social-media platforms to suppress disfavored speakers, viewpoints, and content on social-media platforms. Plaintiffs also allege that the suppression constitutes government action, and that it is a violation of Plaintiffs’ freedom of speech under the First Amendment to the United States Constitution.
So this is pretty big deal. We doubt that it is an accident that it was released today of all days.
The preliminary injunction order prohibits nearly all of the federal government, including DHS, DOJ, and HHS from: pic.twitter.com/1NrFSjRdcd
— America First Legal (@America1stLegal) July 4, 2023
Basically, that quotes from an order that prohibits numerous government officials from doing the following:
(1) 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;
(2) specifically flagging content or posts on social-media platforms and/or forwarding such to social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech;
(3) 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;
(4) 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;
(5) 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;
(6) threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech;
(7) 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;
(8) 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;
(9) requesting content reports from social-media companies detailing actions taken to remove, delete, suppress, or reduce content containing protected free speech; and (10) notifying social-media companies to Be on The Lookout (“BOLO”) for postings containing protected free speech.
This Preliminary Injunction precludes said named Defendants, their agents, officers, employees, contractors, and all acting in concert with them from the aforementioned conduct. This Preliminary Injunction also precludes said named Defendants, their agents, officers, employees, and contractors from acting in concert with others who are engaged in said conduct.
IT IS FURTHER ORDERED that the following actions are NOT prohibited by this Preliminary Injunction:
(1) informing social-media companies of postings involving criminal activity or criminal conspiracies;
(2) contacting and/or notifying social-media companies of national security threats, extortion, or other threats posted on its platform;
(3) contacting and/or notifying social-media companies about criminal efforts to suppress voting, to provide illegal campaign contributions, of cyber-attacks against election infrastructure, or foreign attempts to influence elections;
(4) informing social-media companies of threats that threaten the public safety or security of the United States;
(5) exercising permissible public government speech promoting government policies or views on matters of public concern;
(6) informing social-media companies of postings intending to mislead voters about voting requirements and procedures;
(7) informing or communicating with social-media companies in an effort to detect, prevent, or mitigate malicious cyber activity;
(8) 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.
A lot of that sounds good, but we feel the explicit exceptions are too broad. For instance, suppose someone said “Fauci caused COVID.” Then a defendant sympathizing with Fauci could argue that they can ignore this order because they believe it is defamatory and defamation is not protected by the First Amendment. But, first, who determines if it is defamatory? And, second, typically the solution to defamation is a defamation suit, not preventing people from saying it. Still, it is a huge step in the right direction.
They have the entire opinion here:
This is a great day for the American people. This decision will likely have significant implications for our lawsuit. Happy Independence Day to all Americans!
— America First Legal (@America1stLegal) July 4, 2023
Read the memorandum ruling here: https://t.co/9XLTcG6RQL
But please note that this does not include the order we just quoted. That is a separate document.
We are going to read the whole opinion over and see if there is more to report, either as an update to this post, or as a separate post. So keep your eye on Twitchy. But here are some initial reactions:
— SP (@hospital_snob) July 4, 2023
Exactly like the politics of 1918 Germany in the rise of social democracy, enabling & initiating the rise of fascism's "SURVIVOR" politics, beginning to vote opposition groups 'off the island'
— michael Ford (@michael81509338) July 4, 2023
Hoping to see other states follow Missouri's lead!!
— Charlie Graff (@CharlieGraff18) July 4, 2023
It appears that Louisiana is a co-plaintiff in this case, and that the order applies nationwide, based on our quick glancing-over. So at least one state seems to have joined in, but it really isn't necessary for any other state to act, as far as we can tell.
In any case, we will talk about this more after we read the whole thing. But we will note that in order to get a preliminary injunction, the court had to believe that Missouri and company were likely to win on the merits—and in our experience it is rare for a party to win a preliminary injunction and then lose the case. But we say that without having read the whole thing.
Keep an eye on Twitchy for updates.
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