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(LifeSiteNews) — Free speech advocates are cheering a July 4 Court ruling in the case of Missouri v. Biden barring nine federal agencies and the Biden administration from urging, encouraging, pressuring, or inducing social media companies to censor free speech. The case is being appealed and may end up at the Supreme Court.

Unfortunately, this case is just a small first step. While the judge did an excellent job of documenting a wide variety of abuses, the wording of his Order contains exceptions and ambiguities that are ripe for exploitation in the future. 

Judge Terry Doughty ruled that government officials violated the First Amendment by working with and through online social media platforms to suppress information that the Constitution did not allow the government to censor directly. The Judge described evidence depicting “an almost dystopian scenario” similar to an “Orwellian ‘Ministry of Truth'” based on more than 20,000 pages of evidence exposing a vast censorship enterprise across multiple federal agencies. He called it “the most massive attack against free speech in United States’ history,” one that “almost exclusively targeted conservative speech.” 

To be clear, the First Amendment only restricts government censorship, not private companies acting on their own initiative. But the First Amendment comes into play when social media companies act at the behest of the government. The Supreme Court held in the 1973 case of Norwood v. Harrison that “a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” 

Just a few examples of the government’s “unrelenting pressure against tech companies” included President Joe Biden accusing Facebook of “killing people” by not censoring more COVID “misinformation” and the president’s press secretary threatening legal consequences to social media companies if they did not censor more aggressively. Government officials met regularly with social media companies to request and coordinate the censorship.  

What next?

The Missouri Attorney General believes that the government is likely to continue using its “censorship enterprise” against anyone who disagrees with the government’s COVID narrative or its version of the Hunter Biden laptop story. Censorship efforts could expand soon to shut down speech questioning transgender claims, global warming initiatives, or abortion.

Unfortunately, the wording of the Court Order in this case leaves room for misinterpretation and evasion, especially as it carves out exceptions for the government to contact and inform social media companies about threats to public safety or national security and criminal efforts to suppress voting. While those exceptions sound reasonable, they are ill-defined and likely to provide a significant loophole for government censors. The government has already claimed that disagreements with its vaccine policies threaten public safety. In order to skirt the Court’s ruling, they could accuse climate policy skeptics of threatening public safety or redefine efforts to promote election integrity as some kind of voter suppression. 

Federal agencies may also simply ignore the Court Order and deny that it applies to what they will claim to be advisory, non-coercive communications with the tech companies. The Court Order only applies to “protected free speech” under the First Amendment which would not generally apply to any censorship initiated by private news outlets. Hopefully the judge or a Court of Appeal will clarify the Order to more specifically bar the government from working with and through private companies to censor any and all speech that the government cannot prohibit directly.   

And if government officials violate the Court Order, can we trust the current justice system to hold them accountable? As slow as our justice system works, won’t the damage already be done? Consider the irreversible damage from COVID school closings and vaccine mandates that might have been avoided if the public had been allowed free and open debate during the early months of COVID. How about suppression of the Hunter Biden laptop story which might have changed the outcome of the 2020 election? As Winston Churchill so aptly noted, “A lie gets halfway around the world before the truth has a chance to get its pants on.”  

What can be done?

1: We can expect to see more lawsuits against government officials or agencies that conspire with or use social media to violate our First Amendment rights.

The case of Changizi v. Department of Health and Human Services is pending now in the Sixth Circuit Court of Appeals to decide whether Twitter engaged in government-directed censorship when it suspended Twitter users for so-called COVID-19 “misinformation.” The supposed “misinformation” in that case was a claim that “COVID is 10 to 20 times less dangerous than the flu for kids.” That was a debatable point and the government had no right to censor it, either directly or in partnership with the Twitter company.

2. We can also expect to see direct legal action against the social media platforms. After all, many of them seem to have gone along rather willingly with the censorship. Imagine the potentially massive liability facing a social media company in a class action lawsuit by people who suffered COVID vaccine injuries after the company suppressed evidence of dangerous vaccine side effects.

Thus far, the social media companies have been protected from liability by Section 230 of the Communications Decency Act, which treats them as communication “platforms” with legal immunity for the content on their sites or for any exclusion of content. They have been treated generally like newspapers that are allowed to use editorial judgment in deciding what to publish. Ironically, the purpose of section 230 was to promote an open internet but it has become just the opposite, allowing the internet platforms to close their sites to opposing viewpoints.  

Justice Clarence Thomas has expressed his belief that the Courts have interpreted section 230 too broadly in the past, giving the large digital platforms greater immunity than the law requires. Justice Thomas has suggested that the large internet platforms might be treated as “common carriers,” like transportation companies, telecommunications and public utilities that are traditionally required to serve all members of the public fairly. Or they could be treated as “public accommodations” that provide entertainment or other services to the general public, legally required to serve all members of the public fairly without discrimination.  

3. Legislation. Congress could revoke or limit section 230 to allow lawsuits against the internet platforms, especially when they violate their own terms of service or content moderation standards. However, that might involve some risk of unintended consequences. A weakened section 230 could backfire by encouraging tech companies to remove more content in order to avoid potential legal liability, reducing access to competing ideas and information. 

Section 230 has been widely criticized but without any consensus. Most of us would agree generally that companies acting as private news outlets should not be forced to promote viewpoints with which they disagree. On the other hand, they should not be allowed to censor opposing viewpoints on major public issues after positioning themselves as an open public forum.  

The states of Texas and Florida have passed anti-censorship laws recently to restrict the internet platforms’ ability to remove user-generated content. A July 2022 article in Politico indicates that lawmakers in more than two dozen states have introduced laws to prevent companies from censoring user viewpoints or blocking political candidates. The Texas and Florida laws are being contested by tech companies and it is likely that the Supreme Court will decide those cases next year.  

4. Free enterprise should be encouraged to promote competition in the news and social media industry, using antitrust laws if necessary to break up the dominant social media companies. This would help ensure the free flow of ideas without forcing private companies to publish unwanted content or trusting the government to oversee free speech. Remember the unregulated early days of the internet when there were hundreds of small chat rooms, web forums and bulletin boards providing a true marketplace of ideas?

5. Finally, we need to elect leaders who will respect the First Amendment and work to protect the internet as a modern public square, an open forum for the fair and robust exchange of ideas. 

David Bjornstrom is a retired California attorney and member of the U.S. Supreme Court bar. Nothing in this article is to be considered legal advice or an examination of the law or passing upon the legal effect of any act, document or law.