The Poor State of Freedom of Expression: How US Federal Judge Spelled It Out
The Poor State of Freedom of Expression: How US Federal Judge Spelled It Out
The unusual injunction by a federal judge to restrict the Biden administration from communicating with social media platforms got a lot of coverage. The reasoning behind the order – not as much.
Not everyone is afraid of restrictions on freedom of expression. For example, one of the best-known and most influential mainstream media publications in the United States – and the world – The New York Times, reporting on a landmark ruling by a federal court in Louisiana in early July, did not focus on the government's unacceptable orders to social media companies to restrict free speech, but was concerned about the uncontrolled spread of so-called "misinformation" in light of the ruling. The newspaper wrote that restricting government's interaction with social media platforms "could curtail efforts to combat false and misleading narratives about the coronavirus pandemic and other issues."
Another influential publication, The Washington Post, wrote right in the lead of their news story about the decision that the "Trump-appointed judge’s move could upend years of efforts to enhance coordination between the government and social media companies". The fact that this is a judge appointed by the former President Donald Trump, and therefore a figure with a negative connotation for them, was also highlighted by other publications. However, they failed to note that the U.S. Senate unanimously confirmed Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana in March 2018, with both Democrats and Republicans voting in his favour.
The press coverage of the reasons for the unusual decision was generally incomplete.
“The most massive attack against free speech in United States’ history.”
However, it was precisely the background and reasons for this decision that Judge Doughty went to great lengths to list in the 155-page memorandum ruling accompanying the judgment. “If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history,” Doughty wrote.
The first plaintiffs in the case are the states of Missouri and Louisiana, whose attorneys general filed a lawsuit against President Joe Biden and his administration officials in May 2022, alleging that the Biden administration, through social media companies, by pressuring them, is engaging in censorship and thereby suppressing free speech protected by the First Amendment. The plaintiffs pointed out that the dissemination of information on various topics had been restricted under the guise of combating "misinformation," including censorship of truthful information related to Covid-19, vaccines, elections, and other topics.
In the fall of 2022, five individuals were added as plaintiffs to the same lawsuit – Stanford University medical professor Dr. Jayanta Bhattacharya, Harvard Medical School professor Dr. Martin Kulldorff, psychiatrist Dr. Aaron Kheriaty, Jim Hoft, founder of The Gateway Pundit, and Jill Hines, a leader of the consumer and human rights group called Health Freedom Louisiana.
Censorship on a broad scale: parody also banned
Many examples of censorship are given in the comprehensive complaint. By and large, officials used Google, Facebook, Twitter and other social media platforms to suppress views, information and arguments that were inconvenient from the point of view of power and policy.
As a notable example, the plaintiffs have highlighted the restriction of the spread of the Hunter Biden laptop story in October 2020, i.e. articles based on material found on the laptop of Joe Biden's son, Hunter Biden, as his father was running for president, linking not only himself, but Joe Biden to corrupt practices, were not allowed to be shared on social media. This restriction of distribution was directed by the Federal Bureau of Investigation (FBI) staff, warning social media companies well in advance that a story about Hunter Biden was coming, with the material said to have been obtained through hacking, and that another country was probably behind it. When the story was published, a letter signed by "more than 50 former intelligence officials" was quickly published saying that the story had "all the classic earmarks of a Russian information operation". Only later it was admitted that the initial story was true and, of course, it was no Russian info-op.
Alongside this case, censorship also hit posts questioning the fairness of the 2020 presidential election or the security of voting by mail. Even posting negatively about the state of the economy was in some cases seen as overstepping the boundaries of free speech, according to officials and employees of social media companies making censorship decisions.
In the context of the Covid-19 pandemic, information on the possible laboratory origin of the virus was censored, as well as criticising the lockdown policy used to contain the virus. As a separate major issue, the safety and efficacy of Covid-19 vaccines were not allowed to be publicly questioned.
There have also been instances where officials have reacted strongly to portrayals of Biden in a negative light, or to parodies of his family members. An example of the latter dates back to early 2021, when Rob Flaherty, one of Biden's digital strategy officials, sent a request to Twitter explaining that he could not even stress how important it was to quickly address the issue he had raised. The message concerned Biden's granddaughter, Finnegan Biden, then 20, or rather the Twitter account that parodied her. "Please remove this account immediately," Flaherty wrote. Just 45 minutes later, the request was granted by Twitter. Aside from that, it is worth wondering whether an average person writing to customer support of social media platforms is ever going to get any kind of reasonable response.
How the persecution happened
The private plaintiffs in the case, however, each have their own story of state persecution and suppression of freedom of expression through private companies.
Professors Bhattacharya and Kulldorff fell foul of the censors after publishing the Great Barrington Declaration in October 2020, calling for a sensible pandemic policy and criticising the locking up of societies, the potential benefits of which were nothing compared to the huge damage it would cause. The declaration was blocked from being shared on all major social media platforms. Kulldorff also describes how his Twitter posts on various topics were censored – for example, when he pointed out that the requirement for all the people to be vaccinated was scientifically flawed. The same happened when he made well-founded criticism of the requirement to wear a mask. YouTube took down one of the roundtable discussions moderated by Florida Governor Ron DeSantis, in which Kulldorff, Bhattacharya and others question the requirement that children wear masks. The social networking site LinkedIn censored Kulldorff, for example, when he posted that natural immunity is stronger than that received by vaccination and stated that healthcare institutions should hire, not fire, nurses who have already had the virus. We must remember that those who refused vaccination, were fired.
Jill Hines, one of the leaders of Health Freedom Louisiana, also experienced censorship in relation to the Covid-19 policy. The association opposed the so-called "lockdown" policy as early as April 2020, and immediately began receiving warnings from Facebook. They also posted information about vaccine side effects and opposed the mask mandate. The posts were censored on social media platforms and their circulation was restricted – the visibility of the posts decreased from 1.4 million contacts per month to 98 000. Hines noted that restrictions were also imposed on her personal account. Some of the accounts linked to the association she runs were eventually deleted.
Dr. Kheriaty also felt censored after he began posting criticisms of the pandemic policy and the introduction of compulsory vaccination. In his case, Twitter implemented a shadow ban on the distribution of posts, meaning they were no longer displayed even to his followers. Twitter used similar covert restriction tactics in the case of Bhattacharya, who found out about it after entrepreneur Elon Musk took ownership of Twitter and began to expose its censorship practices. We've reported here on how Twitter was used to curb free speech at the behest of government authorities.
Jim Hoft, owner and manager of The Gateway Pundit, revealed that Twitter suspended access to the publication's account on several occasions in 2021 because of posts about Covid-19 vaccines and absentee voting in elections. The publication's Twitter account was permanently deleted after he posted a security camera video showing two vans allegedly carrying boxes of ballots arriving at a building at 03:30 on the night of the 2020 presidential election. In other words, the post suggested possible electoral fraud. A video about the elections was also removed from the publication's YouTube account, and Facebook used various methods to discredit their content, such as flagging the posts as false information, etc.
Officials' responsibility
Understandably, the examples given by the applicants are cases taken from their own experience, but it is probably no exaggeration to say that similar stories could be told by millions of social media users around the world. Freedom Research also has a recent experience of being censored from June 2023, when we posted our video "What Were the Biggest Lies of the Covid Pandemic?" on Facebook. Shortly after uploading the video, we were informed that the post was in violation of Facebook's Covid-19 community standards and that making such posts could result in our page being removed from the platform. What exactly was wrong with the content of the video was not spelled out in the notification. In the video, the four researchers we interviewed answered the question: what do they think was the biggest lie people were told during the pandemic? The Facebook 'fact-checkers' were probably most disturbed by the answer from molecular biologist Dr Jonathan Gilthorpe, who said outright that the claim that coronavirus vaccines were 'safe and effective' was false.
It is important to realise here that it is not private companies that are suppressing freedom of expression out of their own discretion, but that such acts of censorship have been demanded and implemented by the most powerful state in the world through its agencies and officials. In other words, officials who are supposed to be serving the citizens are trampling the fundamental rights of these citizens underfoot by using state’s power. In fact, this injunction by the court was brought against specific officials, i.e. President Joe Biden, his press secretary Karine Jean-Pierre and a number of others in various positions in the administration, who had been exercising censorship through social media companies.
Among the agencies named as defendants are the US Food & Drug Administration (FDA), the Centers of Disease Control and Prevention (CDC), the National Institute of Allergy and Infectious Diseases (NIAID), then headed by Anthony Fauci, the Department of Justice, the U.S. Dept of State, the FBI, etc.
As all of these agencies and individuals were engaged in censorship, Judge Doughty decided to make a rather unusual order and temporarily banned them from interacting with social media companies. In doing so, the judge noted in his ruling that the plaintiffs were likely to succeed on their claims that the state and its officials had indeed blatantly suppressed free speech protected by the First Amendment. "During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian “Ministry of Truth”," Doughty wrote. The ban does not apply to communications concerning the fight against crime, responses to national security threats and other serious issues that threaten public order or welfare.
The Biden administration does not want to comply with the injunction and has filed an appeal to have it overturned by a higher court. The Court of Appeals ruled on 14 July that the appeal should be expedited and put the injunction on hold for the time being.
We have also published an in-depth two-part analysis of the expansion of censorship in the world in recent years on our portal: "How Censorship Has Exploded in Recent Years" – Part 1 and Part 2.