Last week, in a major win for First Amendment rights, the Department of Justice settled a lawsuit, Murthy v. Missouri, originally brought against the Biden administration four years ago for censoring disfavored online speech at mass scale.
Under the consent decree, the surgeon general, Centers for Disease Control and Prevention (CDC), and the Cybersecurity Infrastructure Agency (CISA) are prohibited from taking any “actions, formal or informal, directly or indirectly … to threaten Social-Media Companies with some form of punishment (i.e., an adverse legal, regulatory, or economic government sanction) unless they remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech” for the next decade.
The deal also prohibits the triumvirate from “unilaterally direct[ing] or veto[ing] social media content moderation decisions” from Facebook, Instagram, X, LinkedIn, and YouTube.
The decree represents a victory, but not a total one. While preventing the government from speech policing, it only does so with respect to the plaintiffs. That is, technically, the pact’s protections only extend to a handful of individuals, and government officials and agencies representing Missouri and Louisiana, the state co-plaintiffs. In practice, the Trump administration may treat the public at large the same, and other courts may give weight to the settlement as precedential. But a future administration could interpret things far more narrowly, and garner rulings that cut against free speech rights. Either way, the prohibitions are timebound, only applying for 10 years.
Sen. Eric Schmitt, R-Mo., who had brought the case as then-Show-Me State attorney general, posted on X that the deal constitutes “the first real, operational restraint on the federal censorship machine. It locks in the First Amendment principle we fought for: modern technology doesn’t erase your rights, and government labels don’t strip speech of protection. The deep state just got checked.”
The resolution to the case in favor of those the government had censored directly and by proxy represents a dramatic turnaround.
The consent decree can be read as a critical admission by the government that its comprehensive efforts to pressure social media companies to quell wrongthink were unlawful. It can also be seen as a vital effort by the Trump administration to halt future would-be censors.
On his first day in office, President Donald Trump had issued an executive order “Restoring Freedom of Speech and Ending Federal Censorship” vindicating the plaintiffs’ case.
“Under the guise of combatting ‘misinformation,’ ‘disinformation,’ and ‘malinformation,’ the Federal Government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the Government’s preferred narrative about significant matters of public debate,” the order read.
Background
The Supreme Court had punted the landmark case two years ago; it was a dereliction of duty and a disheartening setback for those who hoped the nation’s highest court would find the censorship-industrial complex’s depredations unconstitutional and disarm the speech police. In Missouri v. Biden, as the case was originally known, plaintiffs, including doctors who had challenged Covid orthodoxy, and conservative media who likewise challenged 2020 presidential election orthodoxy, alleged that the feds had coerced, cajoled, and colluded with social media companies and nongovernmental organizations to quash such wrongthink.
Louisiana District Court Judge Terry Doughty held, and the Fifth Circuit Court of Appeals largely concurred in his view, that based on the stunning evidence the plaintiffs had amassed of this censorious scheme, federal authorities likely abridged the plaintiffs’ First Amendment rights. The courts imposed a preliminary injunction prohibiting the censorship activities of the kind the plaintiffs had exposed.
The Biden administration appealed to the Supreme Court. And in a June 2024 opinion — delivered, ironically, as I was testifying before Congress on the damage the censorship-industrial complex had done to the likes of RealClearInvestigations and The Federalist — the Supreme Court rebuffed the lower courts. The majority found that the plaintiffs lacked standing to seek the injunction. The censored failed, in the court’s view, to “demonstrate[] a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek.”
Justice Amy Coney Barrett, who authored the court’s opinion, buried its devastating non-conclusion in a footnote, writing: “Because we do not reach the merits, we express no view as to whether the Fifth Circuit correctly articulated the standard for when the Government transforms private conduct into state action.”
But all was not lost. Since the Supremes declined to rule on the merits, they sent the case back down to the trial court. There, the plaintiffs sought to pursue additional discovery that would enable them to demonstrate standing sufficient to seek an injunction, and fend off the Biden administration’s call for the court to dismiss the case.
On Nov. 8, 2024, Judge Doughty ruled in the plaintiffs’ favor. He agreed with their argument that the Supreme Court’s ruling that they lacked standing to pursue an injunction did not mean that they also lacked standing to continue pressing their case.
Three days prior, another development occurred: The election of Donald Trump to a second term.
Consequently, the president pledged that his administration would “ensure that no taxpayer resources are used to engage in or facilitate any conduct that would unconstitutionally abridge the free speech of any American citizen.”
In an ironic twist, as part of its overall policy, the second Trump administration tabbed some of the censorship-Industrial complex’s most prominent victims to senior policy positions. These included one of the plaintiffs in Missouri v. Biden itself, Dr. Jay Bhattacharya, as well as the plaintiff in a companion case, Robert F. Kennedy Jr.
Legislation Needed
Every American should be able to speak free from fed-led censorship, and not just for a finite period, but in perpetuity. Schmitt’s colleagues should follow his lead and pass legislation codifying the original injunction that the courts had imposed on a raft of federal agencies, before the Supreme Court saw fit to discard it.
Meanwhile, government censors have neither faced legal punishment for their past violations of our First Amendment, nor laws that would impose severe penalties for future such violations.
Federal and state authorities have failed to fully defund the censorship-industrial complex. And millions of nameless, faceless victims of censorship have never been made whole.
All that said, given the Supreme Court’s posture, it is unlikely that Missouri v. Biden would have ever achieved anything close to these ends. The consent decree at minimum will stand as precedent that could perhaps hold weight in other courts, and in future times when the First Amendment faces peril.
Let us hope and pray that the pact’s effect proves orders of magnitude greater than what is encompassed within its four corners.
And today, let us celebrate that while justice was delayed, one court saw fit to ensure it was not denied.
Ben Weingarten is editor at large for RealClearInvestigations. He is a senior contributor to The Federalist, columnist at Newsweek, and a contributor to the New York Post and Epoch Times, among other publications. Subscribe to his newsletter at weingarten.substack.com, and follow him on Twitter: @bhweingarten.
