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Ben Weingarten

Federalist Senior Contributor; Claremont Institute Fellow

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Judge says Biden administration is violating free speech

Jul 18, 2023

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A federal judge has ruled that the Biden administration must stop communicating with social media companies about moderating their online content. The plaintiffs in this case allege that government agencies, like the Department of Health and Human Services and the FBI, violated free speech by suppressing conservative media coverage on a wide range of topics. Those topics include the Hunter Biden laptop story, the origin of COVID-19, the integrity of the 2020 presidential election and the efficacy of vaccines.

Straight Arrow News contributor Ben Weingarten thinks the case, Missouri v. Biden, says a lot about government-led speech policing.

The government has the gall to claim that in being prohibited from censoring, it’s being censored or that preventing the Feds from violating the First Amendment, as the injunction does, somehow violates the First Amendment. This despite the fact the injunction lays out in myriad areas where the Feds could continue coordinating with social media companies, including in the very ones like national security, that the Feds’ fearmonger will suffer under the injunction.

Amazingly, the Feds also say the injunction prevents them from speaking on matters of public concern. Yet nowhere does the injunction say government authorities can’t hold press conferences, issue press releases or publish social media posts. 

The government’s fight for the right to censor reveals a conception of free speech and its own authority that is totally backwards. It operates as if speech is a privilege over which it holds total power, ceding only the ability for us to talk on heavily constrained terms — rather than that we have a natural right to speak freely, and the government’s ability to regulate our speech should be heavily constrained. But government derives its powers from us and with our consent, not the other way around. At stake then in Missouri v Biden is more than free speech. At stake is what remains of our Republican system of government.

The U.S. government holds your First Amendment in complete contempt. That’s the takeaway from a recent filing in the landmark Missouri v. Biden free speech case. The filing, a motion in response to Judge Terry Dodi’s bombshell Independence Day injunction, freezing federal government-led speech policing, calls for the judge to allow the feds to continue censoring you while it fights the freeze. Judge Dodi has smacked the federal government down, ruling against its motion for a stay. But the Fed’s perverse position deserves our scrutiny. 

 

The crux of the government’s argument for staying the injunction was this: prohibiting federal authorities from abridging speech could lead to “grave harm to the American people and our democratic processes, thereby causing the government irreparable harm” or, stated differently, if government can interfere in elections or engage in rampant viewpoint discrimination, that  causes it irreparable harm. Or stated still another way, your right to free speech causes the government irreparable harm. 

 

That’s the takeaway based on the overwhelming evidence the plaintiffs have obtained in the case, evidence Judge Dodi martialed in pre butting the Fed’s arguments and sustaining the injunction. The case has shown a raft of federal agencies buoyed by the Biden White House and lawmakers and a coterie of often government coordinated and funded anti-disinformation cutouts have chided, cajoled and colluded with social media platforms to get them to suppress unauthorized opinions, and even inconvenient facts to ruling class orthodoxy at mass scale. They work to suppress the Hunter Biden laptop story in the run up to the 2020 election. Questions about election integrity beginning during the same cycle and continuing thereafter. And virtually every aspect of the Chinese Coronavirus pandemic since its onset. They’ve imposed the censorship regime — what evidence suggests has impacted at least hundreds of millions of pieces of content on grounds that mis- dis- and malinformation, as determined by the very authorities who themselves are often the biggest proliferators of it, threatens the Republic. 

 

Like all good attorneys, this one has been for the good of its victims, to protect our national security and public health. Questioning mail in balloting can lead to insurrections. Questioning vaccine efficacy can get people killed. The government’s lawyers indicated during a May hearing, they don’t necessarily think this wrong think is protected First Amendment speech. 

 

This is in keeping with the views and policies of the security state that’s been the tip of the spear for government-led censorship activities. As we’ve discussed, CISA has been the linchpin of government-led speech policing. It’s treated Americans’ questions about election integrity on social media, like digital terror attacks on critical election infrastructure, and use that national security rationale to induce social media platforms to sensor accordingly. These efforts flow naturally from CISA Director Jen Easterly’s view that America’s most critical infrastructure is our cognitive infrastructure. This is a recipe for nothing less than federal control over the American mind. The Budget Administration’s national strategy for countering domestic terrorism calls for the whole of society application of this view. To confront long term contributors to domestic terrorism, the strategy calls for enhancing faith in government and addressing the extreme polarization fueled by a crisis of disinformation and misinformation, often channeled through social media platforms by accelerating work to contend with an information environment that challenges healthy democratic discourse, and working to counter the influence and impact of dangerous conspiracy theories. See how easily this could serve as a pretext for eliminating dissent to government favored positions via censorship? 

 

If wrong think leads to wrong action, then the areas of speech right for suppression are limitless. This is what has happened, as Missouri V Biden has exposed. While the government sees your right to speak as conditional, it used its power to censor as absolute. The feds claim that the injunction prohibiting them from maintaining their censorship regime by halting relevant communications with government colluding cutouts and social media platforms constitutes an assault on government speech. 

 

The government has the gall to claim that in being prohibited from censoring it’s being censored or they’re preventing the Feds from violating the First Amendment, as the injunction does somehow violates the First Amendment. This despite the fact the injunction weighs at myriad areas where the Feds could continue coordinating with social media companies, including in the very ones like national security, the defense fearmonger will suffer under the injunction. Amazingly, the Feds also say the injunction prevents them from speaking on matters of public concern. Yet nowhere does the injunction say government authorities can’t hold press conferences, issue press releases or published social media posts. 

 

The government’s fight for the right to censor reveals a conception of free speech and its own authority that is totally backwards. It operates as if speech is a privilege over which it holds total power, ceding only the ability for us to talk on heavily constrained terms. Rather than that we have a natural right to speak freely, and the government’s ability to regulate our speech should be heavily constrained. But government derives its powers from us and with our consent, not the other way around. At stake then in Missouri v Biden is more than free speech. At stake is what remains of our Republican system of government.

 

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