Missouri v. Biden- The Most Important Civil Liberties Case in History
Updated
On May 5, 2022, the states of Missouri and Louisiana, along with several private Plaintiffs, filed a lawsuit in Federal Court. As soon as I read the complaint, I had a feeling it would be one of our nation’s most important civil rights cases. I was correct.
This case has garnered widespread media attention as of late, given the machinations it is going through; right now, a section sits before the United States Supreme Court. But if you haven’t been closely following my journalism on social media and at UncoverDC, you likely don’t know what it is all about.
Many of us have fallen victim to online censorship, and until the COVID pandemic, most Americans chalked it up to the rambling conspiracy theories of right-wing conservatives. During the pandemic, it became apparent to nearly everyone active on social media that if you were to utter “wrong think,” your account would be penalized in some way. There have been several lawsuits over the past few years against social media companies, and many have failed. Social media companies are private businesses, after all. Until they are treated as utilities, they have the right to create and enforce their content moderation policies, even if they amount to viewpoint censorship. However, Missouri v. Biden is different in that the Plaintiffs in this case don’t allege that the social media companies abridged their right to free speech; they allege that the Government has.
The complaint outlines a series of events where the Government seemingly coerced or intimidated social media platforms to censor Americans on social media. When it was filed, the Plaintiffs asked the judge to allow them early discovery to determine if their complaint had merit and to give the judge the information he would need to grant a temporary injunction. The temporary injunction would stop the Government from being able to contact social media companies outside of normal activities, such as law enforcement or national security.
In my experience, early expedited discovery – especially of high-ranking officials and bureaucracies – isn’t typically granted. But Judge Terry Doughty of Louisiana did grant this discovery, and so began an almost two-year-long firestorm. From the beginning, the Government objected and appealed. The Plaintiffs wanted to depose, under oath, the head of CISA, the head of the FDA, the head of the CDC, the Surgeon General himself, the FBI, the NIH, and the Biden administration’s Press Secretary, Jen Psaki. Judge Doughty agreed.
Immediately, the Government appealed to the 5th Circuit, arguing that it was unprecedented for those depositions to be granted. They said the officials were very busy and didn’t have time to sit for depositions in a lawsuit like this. The 5th Circuit agreed, in part, and remanded the case back down to the lower court to adjust and make substitutions. The Plaintiffs offered up their second choices and ended up deposing and obtaining written discovery from the offices mentioned, as well as some folks just a step under their department heads. Interestingly, the deposition of Dr. Anthony Fauci was granted. You can read his deposition here.
What followed from there is extraordinary and more damning than anyone imagined. The discovery proved that the Government was threatening and coercing social media companies to censor Americans. Not only were they doing that, using threats of Section 230 reform and various legislation as a cudgel, but they also were heavily involved in crafting content moderation policies. It always shocks people when I tell them that discovery has shown that, in many cases, the platforms did not wish to censor but felt forced to due to government pressure.
Much of the information tagged for censorship revolved around health freedom and the COVID pandemic. For example, one plaintiff, Jill Hines of Health Freedom Louisiana, was censored on Facebook as she tried to organize constituents for a peaceful demonstration regarding kids and mask mandates, among other things. Another, Dr. Aaron Kheriaty, was deboosted and censored for sharing early treatment and other information. One of the other private Plaintiffs, Dr. Jay Bhattacharya, was censored for his role in penning the Great Barrington Declaration. And, in a very interesting turn of events, the state governments themselves were censored! You can read all about some of the most damning censorship tactics in this column. Among them? Facebook, after threats from the Government, censored the speech of the vaccine injured, despite knowing the information was true. And, CISA, an agency responsible for securing our country’s “critical infrastructure,” declared your thoughts “cognitive infrastructure,” thereby falling under their control. Orwell’s 1984 doesn’t begin to explain it, and the judge in the case has used the term several times.
The discovery results set off a firestorm, and in May of 2023, the judge in the case held a hearing. I attended the 8-hour hearing in Louisiana and was the only journalist there. Not a single other media outlet sent anyone. We waited a few months to hear the judge’s decision on the temporary injunction, and he did not disappoint.
On July 4, 2023, the judge filed a 155-page order explaining the Government’s wrongdoing in detail and granting the temporary injunction that would halt the Government from communicating with social media companies to censor speech. It took the country by storm and has been the subject of great controversy ever since.
The Government immediately appealed back to the 5th Circuit, arguing, among other things, that the order inhibited the Government’s right to speech. It was a completely ridiculous view of the order, which clearly stated what was allowed and what wasn’t and included carve-outs for national security, law enforcement, and other matters of importance. Nevertheless, an expedited hearing was scheduled at the 5th Circuit. When that day came, the Government did a poor job of trying to justify to the court why they should be able to censor speech via big tech.
A few weeks later, the 5th Circuit affirmed the lower court’s ruling, granting the temporary injunction but removing CISA from the order. The Government appealed again to the Supreme Court, but the Plaintiffs had other ideas and asked the 5th Circuit to reconsider their decision to remove CISA from the injunction. In a shocking and somewhat unprecedented move, the 5th Circuit agreed to hear the reconsideration and added CISA back onto the injunction.
An Important precedent was set with the order affirming the injunction. The 5th Circuit Court affirmed that our 1st Amendment right doesn’t only include the right to speak, but the right to listen – an argument Missouri and Louisiana made. They argued strongly that censorship on social media removes their ability to hear what their constituents had to say on matters of extreme importance. It also codified that self-censorship is also a violation of the 1st Amendment. When people censor themselves because they are worried about what a platform will do, especially when that platform is being dictated its content moderation policy by the Government, their 1st amendment rights are harmed. Additionally, the 5th Circuit also wrote that because the Government had so forcefully intervened in those policy decisions, even if they were to halt the practice, forever more, the content moderation policies on social networks would be tainted by the Government’s whims.
You won’t be surprised to hear that the decision was appealed again. It went to the Supreme Court, and we all waited to see if the case would be granted certiorari. A few weeks ago, it was, but not before another somewhat unprecedented happening; there was dissension among the court – not about whether to hear the case- that was clear. There was dissension about the stay on the temporary injunction. In a 5-page dissent, Justices Alito, Gorsuch, and Thomas lamented that the court allowed an indefinite stay, granting the Government the ability to continue doing what they were doing before the injunction was granted. You can read a detailed analysis of that decision here.
So, this is where we stand. We are waiting for the spring session so the Supreme Court can hear this case. Until then, the normal course of the case will continue at the lower court. Discovery is ongoing, and our lifetime’s most important civil liberties case continues.
Health freedom wasn’t the only topic that was censored; however, I argue it was the most important. By involving itself and censoring alternative viewpoints on the vaccine, alternative treatments, and other things, the Government caused harm to millions of people. In my opinion, one could argue they were directly responsible for the deaths of many. At certain points, the White House and Surgeon General were so concerned about vaccine hesitancy that they forced Meta to rewrite an algorithm to sweep up vaccine-related content. The algorithm worked so well that President Joe Biden’s Instagram account was swept up in it and censored. More troubling, though, was the censorship of the vaccine injured. In many cases, Meta would quietly turn off the ability for anyone to see what they were saying and also banned groups of vaccine-injured people who got together to discuss what was happening to them, despite admitting the content wasn’t false. As a matter of fact, at one point, Facebook warned the Government that too much censorship surrounding the shot could be detrimental in a few ways. For one, it would cause the mental anguish of not having an outlet. For another, it would cause people to question the vaccine more vociferously. You can read all of the gritty details of that in my coverage here.
We want more people to become aware of this case and its implications for all of us. If you would be so kind as to share this article with all of your friends, we would be so appreciative. And, if you are a legal junky and want the real nitty gritty, please feel free to view my pinned thread on X.
