Judge tells feds to take free speech training before asking social media to censor

Preliminary injunction is neither vague nor overly broad, judge tells Justice Department. Newly disclosed email shows feds entertained COVID claims deemed misinformation.

Published: July 10, 2023 11:11pm

Taking a page from "Monty Python and the Holy Grail," the Biden administration accused a federal judge of repressing its speech. Unlike King Arthur and the rude French peasant, the judge on Monday did not relent in response to the Justice Department's cries for help.

U.S. District Judge Terry Doughty refused to halt his preliminary injunction against the White House, federal agencies and officials that prohibits them from pressuring or encouraging social media companies to censor lawful content on hot-button topics such as COVID-19, elections and Hunter Biden's laptop, which Doughty said targeted "conservative-leaning" speech.

The injunction is "not as broad as it appears," despite covering many federal agencies and officials, the order states. "It only prohibits something the defendants have no legal right to do" and "contains numerous exceptions" that are not ambiguous.

Doughty singled out DOJ's claim that the order is self-contradictory because it binds the Department of Health and Human Services but not the FDA, a component of HHS.

"If defendants’ interpretation was accepted, an agency could simply instruct a sub-agency to perform the prohibited acts and avoid the consequences of an injunction," he said.

"Violation of a First Amendment Constitutional right, even for a short period of time, is always irreparable injury" worthy of an injunction, the judge said in language cheered by Missouri Attorney General Andrew Bailey, who is challenging the public-private coordination along with Louisiana AG Jeff Landry, censored doctors and others.

The ongoing release of emails among federal officials pertaining to COVID, through Freedom of Information Act requests and litigation, shows that some feds have entertained the very claims targeted for censorship by other officials, sometimes with the help of private disinformation cops named in Doughty's injunction.

Days after the 2020 election, two National Institutes of Health officials questioned the ability of either cloth masks or forthcoming COVID vaccines to control SARS-CoV-2 transmission, according to their redacted email to then-FDA Commissioner Stephen Hahn.

As the nation "transitions away from the chaotic Trumpian universe," Hahn should take a "more aggressive role" by supporting a mandate for every American to wear N95 masks that would become widely available under the Emergency Powers Act, they said. 

This would be "more efficient and effective than a vaccine with 50% efficiency" at ending lockdowns and reopening the economy, the duo claimed.

A year and a half later, FDA vaccines chief Peter Marks pledged the agency would not reject emergency use authorization for COVID vaccines less than 50% effective for children under age 5.

DOJ's motion Thursday asked Doughty to stay the injunction pending consideration by the 5th U.S. Circuit Court of Appeals, which could lift the order while the lawsuit proceeds. 

Last year the 5th Circuit upheld a Texas law that lets users and its attorney general sue social media companies for viewpoint discrimination, finding that corporations don't have a "freewheeling First Amendment right to censor what people say" on their platforms.

The Justice Department claimed the "broad scope and ambiguous terms" of Doughty's order could prohibit "a vast range of lawful and responsible conduct," including the government's ability to speak on "matters of public concern" and to stop "grave harm to the American people and our democratic processes." This constitutes "irreparable harm" every day the order stands.

The State Department confirmed to Just the News that its Global Engagement Center, known for funding and promoting anti-populist internet games abroad, "postponed" a meeting with Facebook owner Meta on "foreign disinformation overseas" in response to the order.

The government is ignoring the "plain terms" of the injunction, the AGs and the doctors' lawyers at the New Civil Liberties Alliance said in their opposition Sunday.

It's disingenuous for DOJ to claim an injunction is outdated because federal censorship is in the rearview mirror, they said. The feds "produced the vast majority of their documents in August 2022" and the non-doctor plaintiffs – Gateway Pundit founder Jim Hoft and Health Freedom Louisiana co-director Jill Hines – have experienced ongoing censorship.

The feds have spent months unsuccessfully searching for a "single specific example" of either grave harm or lawful and responsible conduct that an injunction would stop, the plaintiffs said.

"Defendants do not cite a shred of evidence that contradicts a single one of the Court’s 82 pages of factual findings" based on government emails and depositions.

Doughty cited several examples from those findings to reject DOJ's claim that the government still might win on the merits. 

White House officials demanded Facebook and Twitter censor high-profile critics of COVID vaccines.

Social media platforms censored the anti-lockdown Great Barrington Declaration – whose authors are plaintiffs – after then-NIH Director Francis Collins enlisted then-National Institute of Allergy and Infectious Diseases Director Dr. Anthony Fauci to issue a "devastating take-down" and both publicly trashed it.

The FBI knew the "Russian disinformation" claims were fake about Hunter Biden's laptop, which it had possessed since December 2019, yet "repeatedly warned" social media before the 2020 election "to be alert" for such foreign shenanigans.

The State Department used the Election Integrity Partnership despite a Department of Homeland Security official acknowledging it was set up "to get around unclear legal authorities, including very real First Amendment questions."

The judge gave a boost to states that want to challenge federal actions by citing injuries to their own interests, as opposed to those of their residents. 

Missouri and Louisiana asserted their First Amendment and state constitutional rights to defend their own "quasi-sovereign interests," as the Supreme Court authorized when Massachusetts sued the Environmental Protection Agency, Doughty said.

The individual plaintiffs have also shown "future harm is likely to occur" without an injunction.

The "only effect" of lifting the order would be to free the government to do what Doughty has already found is unconstitutional: "urge, encourage, pressure, or induce the removal, deletion, suppression, or reduction of content containing protected free speech on social-media platforms."

It's not hard to distinguish between government speech in and of itself, which remains protected, and "the use of government agencies and employees to coerce and/or significantly encourage social-media platforms to suppress free speech on their platforms," which is not, the judge wrote.

Now that he has limited the injunction to Supreme Court jurisprudence rather than that of all U.S. courts in response to DOJ concerns, Doughty said federal officials "can be and should be trained to recognize what speech is protected and what speech is not prior to working with social-media companies to suppress or delete postings."

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