A federal appeals court has ruled that the Biden administration can continue demanding media companies censor content, in violation of the First Amendment.
The ruling is a direct blow against our rights to freedom of speech and the press. The Biden administration has engaged in a shameless scheme of surreptitious media censorship. We can only hope that the court trial ultimately results in the ban being upheld.
The U.S. Court of Appeals for the Fifth Circuit set aside a preliminary injunction issued earlier this month by U.S. District Judge Terry A. Doughty of Louisiana. The injunction barred Biden administration officials from “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” while the case proceeded, as stated in the court’s judgment.
Doughty’s ruling banned actions such as “flagging content or posts” or “forwarding such to social-media companies” with the purpose of “urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech.” The temporary ban would have applied to “emailing, calling, sending letters, texting, or engaging in any communication of any kind with social-media companies” for those purposes, the judge stated.
In addition, the government could not try to pressure social media companies to get them to change their content guidelines, nor work with outside groups to strong-arm these companies into altering their content or policies.
Doughty rightly exempted warnings about “postings involving criminal activity or criminal conspiracies,” cyberattacks, “national security threats, extortion, or other threats posted on its platform,” and other “threats that threaten the public safety or security of the United States.”
Crucially, the ruling did not prohibit officials from “exercising permissible public government speech promoting government policies or views on matters of public concern.”
That exception is important. People should not lose their freedom of speech when they enter government service. Government workers retain the same constitutional rights as the rest of us. What they may not do is use the power of government, either explicitly or implicitly, to accomplish things the Constitution expressly forbids.
That is precisely what the Biden administration was doing in the case at hand: instructing private entities on what the government wanted the public to hear and not be allowed to hear. That is censorship via threats, promises, and collusion, all of which are amply demonstrated in documents before the court.
A government official has every right to make public statements regarding what he or she or the president wants media companies to cover and what to hide. Such public comments by government officials are surely wrong and intrusive. They have the virtue, however, of being transparent. Public statements by government officials are subject to a possible public backlash, thus providing a check on a government’s impulse toward such transgressions.
Governments that publicly place pressure on, threaten, or make promises to private citizens and businesses show what they are made of. Pressure or coordination applied through clandestine backchannel contact with private citizens, by contrast, can evade a public backlash as long as it remains hidden, as demonstrated by the ability of the Biden administration to get away with its reprehensible scheming before the activities came to light.
In addition, when government intimidates or colludes with information companies, the intended result is censorship, and the Constitution explicitly prohibits the federal government from engaging in it. The government may not violate our rights “by using private entities to do its dirty work,” as Phillip Hamburger of the Columbia Law School noted in The Wall Street Journal last December. The Biden administration violated the First Amendment in its underhanded campaign of intimidation and conspiracy.
Working through “private cutouts,” as Hamburger describes these arrangements, does not erase the Constitution’s limits.
Judge Doughty was right to order the Biden administration to stop its censorship campaign while the court case proceeds. The appeals court gave the federal government the go-ahead for now. We can only hope that the trial and inevitable appeals will affirm Doughty’s sensible decision.
S.T. Karnick is a senior fellow and director of publications for The Heartland Institute, where he edits Heartland Daily News and writes the Life, Liberty, Property e-newsletter.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.