Federal Judge’s Ruling ‘Limits’ Biden Administration’s Contact with Social Media

On July 4 2023, a post to Reddit’s r/politics suggested that a federal judge had blocked the Biden administration from “communicating with social media companies”:

That post linked to a CNN.com article with the same title. In reference to a “preliminary injunction issued by U.S. District Judge Terry Doughty,” it described an injunction restricting agencies like the Department of Health and Human Services (HHS), the National Institute of Allergy and Infectious Diseases (NAIAD), and the Centers for Disease Control and Prevention (CDC):

A federal judge on Tuesday [July 4 2023] ordered some Biden administration agencies and top officials not to communicate with social media companies about certain content, handing a win to GOP states in a lawsuit accusing the government of going too far in its effort to combat Covid-19 disinformation.

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The injunction notes that the government can still communicate with the companies as part of efforts to curb illegal activity and address national security threats.

The order applies to agencies including the Department of Health and Human Services, the National Institute of Allergy and Infectious Diseases, the US Centers for Disease Control and Prevention, the Justice Department and FBI as well as officials such as US Surgeon General Vivek Murthy and White House press secretary Karine Jean-Pierre.

Additional outlets reported on the ruling, where similar headlines mentioned “limits” on “Biden administration officials.” Politico’s July 4 2023 coverage was headlined, “Judge limits Biden administration contact with social media firms,” but it actually focused on medical disinformation and “election security”:

A federal judge in Louisiana ruled Tuesday [July 4 2023] that the Biden administration likely violated the First Amendment by censoring unfavorable views on social media over the course of the coronavirus pandemic, calling the efforts “Orwellian.”

U.S. District Court Judge Terry Doughty also issued a sweeping preliminary injunction barring numerous federal officials and agencies — including Surgeon General Vivek Murthy, Health and Human Services Secretary Xavier Becerra, White House press secretary Karine Jean-Pierre and all employees of the Justice Department and FBI — from having any contact with social media firms for the purpose of discouraging or removing First Amendment-protected speech.

The ruling and order from Doughty, an appointee of former President Donald Trump, are the latest developments in a long-running lawsuit spearheaded by Republican-led states alleging that the administration pressured social media companies to remove posts containing purported misinformation about the coronavirus, election security and other issues.

One of the plaintiffs listed on the opinion was the Alliance Defending Freedom, or ADF, a far-right, conspiracist-heavy legal group mentioned in previous fact checks. Politico.com excerpted the 155 page long ruling (issued on a federal holiday), highlighting portions where Judge Doughty labeled specific forms of disinformation “conservative views”:

[Doughty’s ruling] cites a wide range of topics that he says “all were suppressed” on social media at the urging of administration officials, including opposition to Covid vaccines, masking, lockdowns and the lab-leak theory; opposition to the validity of the 2020 election; opposition to President Joe Biden’s and other officials’ policies; and statements claiming that the story surrounding a laptop belonging to Biden’s son Hunter Biden was true.

Each topic “suppressed” was a conservative view, which “is quite telling,” Doughty declared.

“This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech,” he continued. “American citizens have the right to engage in free debate about the significant issues affecting the country … the evidence produced thus far depicts an almost dystopian scenario.”

A link to the lengthy opinion [PDF] appeared in the article (and others), typically alongside headlines beginning “Federal judge limits Biden administration.” However, examples in Doughty’s opinion largely centered on events or incidents which took place well before Joe Biden’s January 2021 inauguration as United States President:

In this case, Plaintiffs allege that Defendants suppressed conservative-leaning free speech, such as: (1) suppressing the Hunter Biden laptop story prior to the 2020 Presidential election; (2) suppressing speech about the lab-leak theory of COVID-19’s origin; (3) suppressing speech about the efficiency of masks and COVID-19 lockdowns; (4) suppressing speech about the efficiency of COVID-19 vaccines; (5) suppressing speech about election integrity in the 2020 presidential election; (6) suppressing speech about the security of voting by mail; (7) suppressing parody content about Defendants; (8) suppressing negative posts about the economy; and (9) suppressing negative posts about President Biden.

In all, “2020” appeared at least 87 separate times in Doughty’s opinion. On page 55 (in a section labeled “The Great Barrington Declaration,” after the disinformation-riddled statement issued by the Brownstone Institute in 2020), social media platform “censorship” occurring in October 2020 was one of several examples informing the judge’s opinion:

Social-media platforms began censoring the GBD shortly [after it was published]. In October 2020, Google de-boosted the search results for the GBD so that when Google users googled “Great Barrington Declaration,” they would be diverted to articles critical of the GBD, and not to the GBD itself. Reddit removed links to the GBD. YouTube updated its terms of service regarding medical “misinformation,” to prohibit content about vaccines that contradicted consensus from health authorities.Because the GBD went against a consensus from health authorities, its content was removed from YouTube. Facebook adopted the same policies on misinformation based upon public health authority recommendations. Dr. Fauci testified that he could not recall anything about his involvement in seeking to squelch the GBD.

Of note is the fact that Facebook introduced measures to suppress medical disinformation no later than April 16 2020; Twitter’s implementation of such policies occurred on or around March 16 2020, at the very start of the pandemic. Facebook, Twitter, Reddit, and YouTube policies to counteract the rapid spread of medical disinformation occurred under former President Donald Trump, well before U.S. President Joe Biden was elected in November 2020.

At the end of the opinion, a section titled “Conclusion” continued identifying events which primarily occurred during the Trump administration, and falsely claiming that “conservative ideas” were suppressed or “silenced” on social media:

The Plaintiffs are likely to succeed on the merits in establishing that the Government has used its power to silence the opposition. Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; opposition to the lab-leak theory of COVID-19; opposition to the validity of the 2020 election; opposition to President Biden’s policies; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power. All were suppressed. It is quite telling that each example or category of suppressed speech was conservative in nature. This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech. American citizens have the right to engage in free debate about the significant issues affecting the country.

Although this case is still relatively young, and at this stage the Court is only examining it in terms of Plaintiffs’ likelihood of success on the merits, the evidence produced thus far depicts an almost dystopian scenario. 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.”

The Plaintiffs have presented substantial evidence in support of their claims that they were the victims of a far-reaching and widespread censorship campaign. This court finds that they are likely to succeed on the merits of their First Amendment free speech claim against the Defendants. Therefore, a preliminary injunction should issue immediately against the Defendants as set out herein. The Plaintiffs Motion for Preliminary Injunction [Doc. No. 10] is GRANTED IN PART and DENIED IN PART.

The Plaintiffs’ request to certify this matter as a class action pursuant to Fed. R. Civ. P. Article 23(b)(2) is DENIED.
MONROE, LOUISIANA this 4 th day of July 2023.

The ruling’s July 4 2023 issuance created a lag between the filing of the opinion and news coverage and analysis involving it. On July 5 2023, Slate.com published “It’s Hard to Overstate How Awful the Latest Injunction Against the Biden Administration Is,” describing the “impetus behind the case” as the “now thoroughly debunked conspiracy theory that the government is somehow strong-arming Big Tech into censoring conservative speech and speakers in violation of the First Amendment.”

In that lengthy analysis, the authors identified myriad weaknesses, inconsistencies, and other legally questionable elements of the opinion, which referenced the appearance of former National Institute of Allergy and Infectious Diseases (NIAID) director Dr. Anthony Fauci on Good Morning America in July 2020 (again, while Trump was in office), and cited an example of “censorship” that appeared to take place that month as an example of a decision that was of “breathtaking scope”:

There is also the fact that the district court made no effort to identify circumstances where the government came even close to coercing social media companies into doing something they didn’t want to do. Take the allegations concerning hydroxychloroquine. On pages 52–53 of the opinion, the district court recites the very serious allegation that the Department of Health and Human Services “suppressed speech on hydroxychloroquine” by having Dr. Anthony Fauci make “statements on Good Morning America and on Andrea Mitchell Reports that hydroxychloroquine is not effective.” The next sentence then reports that, after this apparently very coercive Good Morning America appearance, “social-media platforms censored” videos and material that were pro-hydroxychloroquine. That must have been quite the Good Morning America appearance. But joking aside: A government official appearing on a television show and stating that certain speech is disinformation does not come even remotely close to the government coercing social media companies into removing that speech.

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But if we had to choose, the most egregious facet of the decision would probably be the breathtaking scope of the district court’s order. The injunction would insulate social media companies from criticism about their content moderation policies, not just from coercion. The district court blithely announces that it “believes that an injunction can be narrowly tailored to only affect prohibited activities,” but then goes on to issue an injunction that does no such thing. Among other things, the district court’s order prohibits the myriad government defendants from “emailing, calling, sending letters, texting, or engaging in any communication of any kind with social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech.” (Emphasis added.) It also prevents government defendants from “meeting with social-media companies” about the same. They are not allowed to flag certain content or posts, or notify companies to be on the lookout for certain posts …

… And who are the government defendants that are enjoined from communicating or meeting with social media companies? That’s where things get even crazier. The district court wrote its injunction to include the “Department of State” (all of it!), and the “Department of Homeland Security” (all of that one, too!). Oh, and the Federal Bureau of Investigation and Department of Justice. It calls to mind the chief justice’s accusation from the Texas S.B. 8 case argued last term that the United States was “seeking an injunction against the world.”

On July 4 2023, a federal judge in Louisiana issued a partial injunction [PDF] and a lengthy opinion regarding the spread of disinformation on social media. Headlines routinely claimed that a judge placed “limits” on the “Biden administration,” before excerpting an opinion centering on speech largely preceding Biden’s election or inauguration. In reality, the injunction attempted to bar myriad federal agencies ranging from the FBI to the CDC and HHS from “engaging in communication of any kind” with social media companies.