WASHINGTON, D.C.—Did the Biden administration violate free speech rights during the pandemic when they allegedly pressured social media companies to take down content the government considered misinformation? That’s the case before the Supreme Court in Murthy v. Missouri.
According to court documents the case is about a group of social-media users (Facebook and others) and two states who allege that numerous federal officials coerced social-media platforms into censoring social-media content, in violation of the First Amendment.
They sued the government in Missouri v. Biden. The U.S. Court of Appeals for the 5th Circuit issued a modified injunction last October banning dozens of government employees from “coerc[ing] or significantly encourag[ing] a platform’s content-moderation decisions.” The government appealed the case to the Supreme Court.
The Supreme Court justices recently heard a day of testimony and arguments with each side passionately representing their point. The decision is expected in June. Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch described the case as “a coordinated campaign by high-level federal officials to suppress the expression of disfavored views on important public issues.”
The government’s attorney, Brian Fletcher, argued that “[t]he government may not use coercive threats to suppress speech, but it is entitled to speak for itself by informing, persuading, or criticizing private speakers.” The government contends they coerced no one and, on the contrary, all they did was use persuasion. Mr. Fletcher said the lower courts have “mistook persuasion for coercion.”
He added that “government speech crosses the line into coercion only if, viewed objectively, it conveys a threat of adverse government action. And because no threats happened here, the Court should reverse.” The government, in short, “stay[ed] on the persuasion side of the line.” The government contends they were merely offering “information” and “advice” to their “partners” in fighting “misinformation.”
That’s not how the group suing the government saw it. Louisiana Solicitor General J. Benjamin Aguiñaga represented the plaintiffs. He argued there was “unrelenting government pressure,” contended “the government has no right to persuade platforms to violate Americans’ constitutional rights, and pressuring platforms in back rooms shielded from public view is not using the bully pulpit at all.
That’s just being a bully.” He argued further that the plaintiffs don’t need to prove coercion to win––only encouragement and pressure. “We don’t need coercion as a theory. That’s why we led with encouragement in our . . . brief,” he explained.
Mr. Aguiñaga presented evidence that government officials such as Deputy Assistant to the President Rob Flaherty “badger[ed] the platforms 24/7,” demanding that they broaden their content restrictions and enforce them more aggressively.
Mr. Aguiñaga submitted emails that alluded to President Biden being unhappy with what the social media platforms were doing and warned that White House officials were “considering our options on what to do” if the platforms protested. The social media platforms buckled under the pressure, and consequently changed their policies as well as practices regarding content.
In emails to the Surgeon General, Dr. Vivtek Murthy, Facebook executive Nick Clegg seemed eager to pacify President Biden. Mr. Clegg explained that Facebook “adjust[ed] policies on what we’re removing;” deleted pages, groups, and accounts that offended the White House; and would “shortly be expanding our COVID policies to further reduce the spread of potentially harmful content.”
Facebook bowed. Mr. Clegg wrote in another internal email that Mr. Aguiñaga quoted, “because we were under pressure by the administration.” Mr. Clegg expressed regret about caving to that pressure, saying, “We shouldn’t have done it.”
The government’s pressure went beyond emails to platform executives to the general public when President Biden accused the platforms of “killing people” by allowing users to say things he believed would discourage Americans from being vaccinated against COVID-19.
Surgeon General Murthy took that even further by urging a “whole-of-society” effort to combat the “urgent threat to public health” posed by “health misinformation,” which he said might include “legal and regulatory measures.”
Piling on were other federal officials who explained that holding social media platforms “accountable” could entail antitrust action, new regulations or expansion of their civil liability for user-posted content.
Mr. Fletcher explained that “when thousands of Americans were still dying every week” the government felt justified with communications that included “intensity” and “anger.” However, he did acknowledge that some of the government’s communications with the platforms “is unusual.”
“[T]he First Amendment isn’t a civility code,” Mr. Fletcher explained, adding that “context matters a ton.” He dismissed claims of government coercion of the social media platform. The platforms, he explained, are “powerful, sophisticated entities” used to back-and-forth government interactions and can independently decide when to remove speech and speakers. They aren’t easily cowed.
Rally in support of Free Speech
The impact of the government’s “persuasion” to remove content they found objectionable was felt far and wide. Many in the scientific world felt the government’s action interfered with people being able to make informed consent when they were only allowed to know what the government permitted to be known.
Dozens gathered at the Supreme Court to support free speech and speak out against First Amendment violations.
Dr. Christina X Parks has a Ph.D. in cellular and molecular biology from the University of Michigan Medical School. She was the first speaker at the rally in support of free speech which was held March 18. She told The Final Call, “One of the lawyers just said this was the most important case on free speech in the history of all us.
The actions of the Biden administration, the Surgeon General, and the CDC, explained in Missouri v. Biden, were so egregious that they constitute the biggest threat to free speech this nation has ever experienced. They were so egregious at coercing the social media platforms to basically become arbiters of the government’s truth. If we fail at litigating this correctly and enforcing our free speech rights, we are no longer going to have a constitutional republic.”
“Average people were the losers because they didn’t have the information that they needed to make informed consent to know the truth about the vaccine, the truth about COVID and to know there were actually effective treatments. So, their health suffered and their family suffered.
They lost jobs, even though now we know, which I was saying from the beginning, that the vaccine didn’t prevent transmission. But at a deeper level, this is enabling tyranny because that’s what that was. If they can censor us when we’re trying to tell you the truth about these things, then they can censor anybody about anything.”
Tricia Lindsay is a civil rights attorney. She told the rally crowd, “When this whole situation started, this atrocity that I call it, it was clear, at least to me, … what was coming, the lockdowns, the mandates, go home, stay away from family members, stay away from friends.
It was a clear assault on our Constitution, a clear assault on our freedoms to assemble, to work, to move about, to travel. We had to ask permission or be limited to whose homes we could go to, when we could go outside, things of that nature. It just didn’t make sense.”
“Today we stand on the precipice of change. We stand at the crossroads between tyranny and democracy, freedom and literal slavery, dictatorship and republic, as the justices of this great U.S. Supreme Court hold in their hands. They have the ultimate power to determine the trajectory of our country, our lives, really the trajectory of our lives that can change our country.”
Del Matthew Bigtree is a television and film producer who is the CEO of the anti-vaccination group Informed Consent Action Network. He also produced the film, “Vaxxed: From Cover Up to Catastrophe.”
He told The Final Call, “We see all the studies, Cleveland Clinic, famous studies now showing us that if you get the vaccine within about 14 or 15 weeks, you’re more likely to be infected. Meaning this vaccine is helping the virus, which was something that we warned about in the High Wire very, very early on.”
“We cannot any longer depend on that television set. We know it lies to us. We can’t depend on those newspapers. We know they lied to us. I keep saying that there’s a real spiritual component to this, which is we all have to sit and get quiet and get with God and really ask ourselves, does it make sense what they’re saying to me?
We have to start trusting that God-given intuition more and trust ourselves and speak our truth. Remember that the Constitution is not designed to control us. It’s designed to control our government.”
The Nation of Islam spoke early on COVID and the vaccine which the Honorable Minister Louis Farrakhan encouraged his followers to avoid at all costs. Abdul Arif Muhammad is the student general counsel for the Nation of Islam and successfully argued a case against an insurance company that tried to force Dr. Safiyya Shabazz to stop administering Ivermectin to her patients with COVID-19. They also tried to pressure her to administer the COVID-19 vaccine.
“The impact of this case, if decided in favor of the government, would be to give more power to the federal government to prescribe what exact rights people would have under the First Amendment, particularly concerning matters that the government does not agree with. It would not be limited.
It started here with the concept of the government regulating what people could say about the COVID-19 vaccine, and that they are not permitted to express disagreement with the COVID-19 vaccine or to offer their views of alternative treatments against the COVID-19 virus,” Attorney Muhammad told The Final Call.
“The government did not want anyone to express a view different from their selling point that the Covid 19 vaccine was safe and effective which has been proven to not be true. The government was allowed to condemn people who offered a different view on social media concerning the COVID-19 vaccine and said that the COVID-19 vaccine was harmful as well as offered alternative remedies,” he continued.
Atty. Muhammad explained that as early as July 2020, Minister Farrakhan told people not to take the vaccine even before the vaccine actually went on the market. Recently, in a major speech in February during the Nation’s annual Saviours’ Day convention in Detroit, Minister Farrakhan spoke again on the dangers of the COVID-19 vaccine. He told the sold-out audience, “The government put a great hit on us in a vaccine. My voice was the voice that told you, don’t take it. Don’t take it. They’re trying to kill us softly with a vaccine.”
Atty. Muhammad is very concerned about this case. “All of these things that are in the First Amendment are now in danger. The First Amendment was included in the constitution to grant to its citizens, the right to express their dissent against government actions.
If the court allows the government to use its power to impose itself on social media companies and others to say that you as a citizen don’t have the right to express a point of view different from that of the government, you could be accused by the government of engaging in misinformation,” he said.
“Further this could lead to the government ultimately saying that you are violating some statute that could be criminal in nature, that you could then be arrested for or being charged with crimes. If the court grants this power to the government, it started with COVID-19, what will be the next issue that the government will use this power to suppress free speech?”
