SCOTUS To Weigh Free Speech Against Government Censorship

Feb 9, 2024

WASHINGTON D.C. – Liberty Counsel filed an amicus brief to the U.S. Supreme Court in Murthy v. Missouri, a case that centers around whether the Biden administration illegally colluded with Big Tech companies to censor and suppress constitutionally-protected viewpoints of Americans on social media.

In the brief, Liberty Counsel states the biggest threat to our First Amendment right to free speech today is the government and big companies working together to remove content they disagree with to “stifle dissent” against “official” government narratives.

The First Amendment is the “gold standard” of protection for free speech. It prohibits the government from regulating expression, even during times of national crisis and unrest when different perspectives and voices are essential to making informed decisions. Any collaboration to censor information, perspectives, or opinions, even unpopular views, is viewpoint discrimination and unconstitutional.

As in Murthy v. Missouri, which was first known as Biden v. Missouri, attorneys general from Missouri and Louisiana, along with social media users and an independent media outlet, brought the original lawsuit alleging Biden administration officials from many agencies “coerced” social media companies to remove content the government viewed as unfavorable. Specifically, the censorship involved content dealing with opposition to government narratives about COVID-19, the validity of the 2020 election, the Hunter Biden laptop story, and more. According to the first ruling in Biden v. Missouri on July 4, 2023, U.S. District Judge Terry Doughty determined “the alleged suppression has potentially resulted in millions of free speech violations.” He then issued an order limiting communications between the government and social media companies. 

In September 2023, the Fifth Circuit Court of Appeals largely upheld Judge Doughty’s order noting the government’s conduct was a “coordinated campaign” which “jeopardized” free speech as “a fundamental aspect of American life.” However, Biden is no longer a named defendant because the Fifth Circuit did not uphold the order against Biden himself. The defendants now consist of U.S. Surgeon General Vivek Murthy, White House Press Secretary Karine Jean-Pierre and dozens of other Biden administration officials from The White House, FBI, and Centers for Disease Control and Prevention (CDC). 

In October 2023, the U.S. Supreme Court agreed to take the case, but it temporarily blocked the Fifth Circuit’s order which allows the government and Big Tech unfettered communication for the time being.  Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented to the blocking of the order stating, “Government censorship of private speech is antithetical to our democratic form of government, and therefore today’s decision is highly disturbing.” 

The Supreme Court will make a final decision on the case by the end of June 2024. 

Liberty Counsel asserts in its brief that the expansion of online speech has been met with “increased government censorship.” The brief cites plenty of examples, such as how India and Turkey have seized power to remove social media content; how the German Parliament and the Brazil Supreme Court have criminalized certain political speech; and how actual or proposed laws such as Ireland’s “Hate Speech” bill, Scotland’s Hate Crime Act, the United Kingdom’s Online Safety bill, and Australia’s “Misinformation” bill threaten to chill speech. In addition, the World Health Organization initiative, “Combatting Misinformation Online,” defines an “infodemic” as “too much information” and publicly states it works with Big Tech companies to “remain one step ahead” of content it deems as “misinformation” so it does not “proliferate.” 

In America, and in the aftermath of the COVID-19 crisis, several sources show the rise of a “Censorship Industrial Complex.” Liberty Counsel cites that “journalists, congressional investigators, and others have documented the explosion of ‘a network of over 100 government agencies and nongovernmental organizations that work together to urge censorship by social media platforms and spread propaganda about disfavored individuals, topics, and whole narratives.’” And in Murthy, there are 20,000 pages of evidence showing a “vast censorship enterprise” during the COVID crisis affecting millions of Americans. Judge Doughty’s 155-page ruling contained “eighty-six pages of background facts” that “show email chains, meetings, phone calls and even ‘public pressure campaigns’ from the Biden administration coercing social media companies to suppress and censor” information. 

Liberty Counsel noted this “dystopian response” to the COVID crisis and other opposing narratives is something expected in Communist China or in George Orwell’s 1984, yet it has occurred in America at the highest levels of government. Making matters worse, the brief stated, “the Biden administration and government agencies not only intentionally deceived the public—they have staunchly defended its actions and continue to do so...” 

Liberty Counsel concluded this is “textbook viewpoint discrimination.” This case provides “overwhelming evidence” that the Biden administration has “eroded” free speech rights to a “catastrophic extent” in the digital age. 

Liberty Counsel Founder and Chairman Mat Staver said, “The Biden administration’s attempt to control narratives, silence opposition, and curtail the flow of information is offensive to the First Amendment. Government cannot use third-party media companies to violate individual constitutional rights. Censorship is dangerous to a free society.”

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