In rare Independence Day ruling, federal judge forbids federal agencies from contacting

This is a huge victory for free speech, though it must be kept in mind that the injunction issued by U.S. District Court judge Terry A. Doughty is a preliminary injunction that almost certainly will be appealed and will take a long time to be finally decided, perhaps by the Supreme Court eventually.  I expect there will be fierce attacks on the ruling, and on Judge Doughty, who is a Trump appointee (thank you, Mitch McConnell).  Judge Doughty’s nomination was confirmed by a vote of 98-0 on March 1, 2018.

Judge Terry A. Doughty during his confirmation hearing.

The ruling by Judge Doughty is 135 pages long and will take more time to analyze thoroughly, but as a first take, the following excerpts (impressive to me) are worth bearing in mind.  (Footnotes are omitted.)

INTRODUCTION (pp. 2-3)

I may disapprove of what you say, but I would defend to the death your right to say it.

—Evelyn Beatrice Hill, 1906, The Friends of Voltaire

This case is about the Free Speech Clause in the First Amendment to the United States Constitution. The explosion of social-media platforms has resulted in unique free speech issues— this is especially true in light of the COVID-19 pandemic. If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history. In their attempts to suppress alleged disinformation, the Federal Government, and particularly the Defendants named here, are alleged to have blatantly ignored the First Amendment’s right to free speech.

Although the censorship alleged in this case almost exclusively targeted conservative speech, the issues raised herein go beyond party lines. The right to free speech is not a member of any political party and does not hold any political ideology. It is the purpose of the Free Speech Clause of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of the market, whether it be by government itself or private licensee. Red Lion Broadcasting Co., v. F.C.C., 89 S. Ct. 1794, 1806 (1969).

Plaintiffs allege that Defendants, through public pressure campaigns, private meetings, and other forms of direct communication, regarding what Defendants described as “disinformation,” “misinformation,” and “malinformation,” have colluded with and/or coerced social-media platforms to suppress disfavored speakers, viewpoints, and content on social-media platforms. Plaintiffs also allege that the suppression constitutes government action, and that it is a violation of Plaintiffs’ freedom of speech under the First Amendment to the United States Constitution.

The First Amendment states:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof: or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (emphasis added).

First Amendment, U.S. Const. amend. I.

The principal function of free speech under the United States’ system of government is to invite dispute; it may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Texas v. Johnson, 109 S. Ct. 2533, 2542–43 (1989). Freedom of speech and press is the indispensable condition of nearly every other form of freedom. Curtis Pub. Co. v. Butts, 87 S. Ct. 1975, 1986 (1967).

The following quotes reveal the Founding Fathers’ thoughts on freedom of speech:

For if men are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away, and dumb and silent we may be led, like sheep, to the slaughter.

—George Washington, March 15, 1783.

Whoever would overthrow the liberty of a nation must begin by subduing the free acts of speech.

—Benjamin Franklin, Letters of Silence Dogwood.

—Reason and free inquiry are the only effectual agents against error.

Thomas Jefferson.

The question does not concern whether speech is conservative, moderate, liberal, progressive, or somewhere in between. What matters is that Americans, despite their views, will not be censored or suppressed by the Government. Other than well-known to the Free Speech Clause, all political views and content are protected free speech. The issues presented to this Court are important and deeply intertwined in the daily lives of the citizens of this country.

* * *

pp. 97-99

Explicit threats are an obvious form of coercion, but not all coercion need be explicit. The following illustrative specific actions by Defendants are examples of coercion exercised by the White House Defendants:

(a) “Cannot stress the degree to which this needs to be resolved immediately. Please remove this account immediately.”

(b) Accused Facebook of causing “political violence” by failing to censor false COVID-19 claims.604

(c) “You are hiding the ball.”

(d) “Internally we have been considering our options on what to do about it.”606

(e) “I care mostly about what actions and changes you are making to ensure you’re not making our country’s vaccine hesitancy problem worse.”

(f) “This is exactly why I want to know what “Reduction” actually looks like – if “reduction” means pumping our most vaccine hesitance audience with Tucker Carlson saying it does not work… then… I’m not sure it’s reduction.”

(g) Questioning how the Tucker Carlson video had been “demoted” since there were 40,000 shares.

(h) Wanting to know why Alex Berenson had not been kicked off Twitter because Berenson was the epicenter of disinformation that radiated outward to the persuadable public.610 “We want to make sure YouTube has a handle on vaccine hesitancy and is working toward making the problem better. Noted that vaccine hesitancy was a concern. That is shared by the highest (‘and I mean the highest’) levels of the White House.”‘

(i) After sending to Facebook a document entitled “Facebook COVID-19 Vaccine Misinformation Brief, which recommends much more aggressive censorship by Facebook. Flaherty told Facebook sending the Brief was not a White House endorsement of it, but “this is circulating around the building and informing thinking.”

(j) Flaherty stated: “Not to sound like a broken record, but how much content is being demoted, and how effective are you at mitigating reach and how quickly?”

(k) Flaherty told Facebook: “Are you guys f—— serious” I want an answer on what happened here and I want it today.”

(l) Surgeon General Murthy stated: “We expect more from our technology companies. We’re asking them to operate with greater transparency and accountability. We’re asking them to monitor information more closely. We’re asking them to consistently take action against misinformation super-spreaders on their platforms.”

(m) White House Press Secretary Psaki stated: “we are in regular touch with these social-media platforms, and those engagements typically happen through members of our senior staff, but also members of our COVID-19 team. We’re flagging problematic posts for Facebook that spread disinformation. Psaki also stated one of the White House’s “asks” of social-media companies was to “create a robust enforcement strategy.”

(n) When asked about what his message was to social-media platforms when it came to COVID-19, President Biden stated: “they’re killing people. Look, the only pandemic we have is among the unvaccinated and that – they’re killing people.”

(o) Psaki stated at the February 1, 2022, White House Press Conference that the White House wanted every social-media platform to do more to call out misinformation and disinformation and to uplift accurate information.

(p) “Hey folks, wanted to flag the below tweet and am wondering if we can get moving on the process of having it removed. ASAP”

(q) “How many times can someone show false COVID-19 claims before being removed?”

(r) “I’ve been asking you guys pretty directly over a series of conversations if the biggest issues you are seeing on your platform when it comes to vaccine hesitancy and the degree to which borderline content- as you define it, is playing a role.”

(s) “I am not trying to play ‘gotcha’ with you. We are gravely concerned that your service is one of the top drivers of vaccine hesitancy-period.”

(t) “You only did this, however after an election that you helped increase skepticism in and an insurrection which was plotted,…