WHY IS ALL SPEECH IMPORTANT? – DOES A LABEL OF DIS/MIS-INFORMATION DISQUALIFY SOME?
By Donald Brockett
Although a number of important cases were decided by the Court at the end of its term, which will be covered later, the following pertinent parts of a decision written by District Court Judge Terry A. Doughty of the Western District of Louisiana in the case of Missouri v. Biden, Jr., et. al. are commented on now because of its importance.
The case has importance at this stage of the legal proceedings because the judge issued a preliminary injunction against the White House and various federal agencies in order to stop any further attempts they might make to suppress alleged disinformation by media outlets as they did during the pandemic. The issue will without a doubt reach the Supreme Court because of its impact on the First Amendment free speech provision. The decision is thorough, well written, and delineates in detail the evidence discovered by the plaintiffs, the parties bringing the lawsuit. It is worth reading in its entirety and can be found at https://ago.mo.gov/docs/default-source/press-releases/missouri-v-biden-ruling.pdf?sfvrsn=dd807c2_2
Judge Doughty started his opinion by saying:
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 exceptions 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.
- 2-4
Judge Doughty then outlines the facts and details some of the evidence presented to him by the parties bringing the lawsuit showing the numerous contacts and connections by the White House and other government agencies to get them to comply with their demands that certain perspectives of those not agreeing with their positions be eliminated. It is a long portion of the opinion but a fascinating detailing of the evidence through the legal tools of discovery by the plaintiffs. pp. 4-87.
In his analysis, Judge Doughty says:
“… Plaintiffs move for a preliminary injunction against Defendants’ alleged violations of the Free Speech Clause of the First Amendment. Plaintiffs assert that they are likely to succeed on the merits of their First Amendment claims because Defendants have significantly encouraged and/or coerced social-media companies into removing protected speech from social- media platforms. Plaintiffs also argue that failure to grant a preliminary injunction will result in irreparable harm because the alleged First Amendment violations are continuing and/or there is a substantial risk that future harm is likely to occur. Further, Plaintiffs maintain that the equitable factors and public interest weigh in favor of protecting their First Amendment rights to freedom of speech….”
…
The Free Speech Clause prohibits only governmental abridgment of speech. It does not prohibit private abridgment of speech. Manhattan Community Access Corporation v. Halleck, 139 S. Ct. 1921, 1928 (2019). The First Amendment, subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals. Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 641 (1994). At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Id. Government action, aimed at the suppression of particular views on a subject that discriminates on the basis of viewpoint, is presumptively unconstitutional. The First Amendment guards against government action “targeted at specific subject matter,” a form of speech suppression known as “content-based discrimination.” National Rifle Association of America v. Cuomo, 350 F. Supp. 3d 94, 112 (N.D. N.Y. 2018). The private party, social-media platforms are not defendants in the instant suit, so the issue here is not whether the social-media platforms are government actors,599 but whether the government can be held responsible for the private platforms’ decisions.
Viewpoint discrimination is an especially egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the perspective of the speaker is the rationale for the restriction. Rosenberger v. Rectors and Visitors of University of Virginia, 515 U.S. 819, 829 (1995). Strict scrutiny is applied to viewpoint discrimination. Simon & Schuster, Inc. v. Members of the New York State Crime Victim’s Board, 505 U.S. 105 (1991). The government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. Police Department of Chicago v. Moseley, 408 U.S. 92, 96 (1972).
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Matal v. Tam, 137 S. Ct. 1744, 1763 (2017); see also R.A.V. v. City of St. Paul, 505 U.S. 377 (1996). The benefit of any doubt must go to protecting rather than stifling speech. Citizens United v. Federal Election Commission, 130 S. Ct. 876, 891 (2010).
- 88-89.
The judge then details the significant encouragement and coercion on the part of the parties against whom the lawsuit is brought and determined there is no question from the evidence presented that those parties:
… pressured and encouraged social-media companies to suppress free speech. Defendants used meetings and communications with social-media companies to pressure those companies to take down, reduce, and suppress the free speech of American citizens. They flagged posts and provided information on the type of posts they wanted suppressed. They also followed up with directives to the social-media companies to provide them with information as to action the company had taken with regard to the flagged post. This seemingly unrelenting pressure by Defendants had the intended result of suppressing millions of protected free speech postings by American citizens….
- 93-94
He also stated at p. 94:
What is really telling is that virtually all of the free speech suppressed was “conservative” free speech. Using the 2016 election and the COVID-19 pandemic, the Government apparently engaged in a massive effort to suppress disfavored conservative speech. The targeting of conservative speech indicates that Defendants may have engaged in “viewpoint discrimination,” to which strict scrutiny applies. See Simon & Schuster, Inc., 505 U.S. 105 (1991).
The judge then details what the White House and each agency did to pressure and encourage the social media companies. pp.95-117.
After detailing the efforts by the White House and agencies of the government to control the dialogue, Judge Doughty says:
Although the COVID-19 pandemic was a terrible tragedy, Plaintiffs assert that it is still not a reason to lessen civil liberties guaranteed by our Constitution. “If human nature and history teaches anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.” Does 1-3 v. Mills, 142 S. Ct. 17, 20–21 (2021) (Gorsuch, J., dissenting). The “grave risk” here is arguably the most massive attack against free speech in United States history.
p.118.
The judge next addresses the court-created issue of “standing” which he says must be considered because:
The United States Constitution, via Article III, limits federal courts’ jurisdiction to “cases” and “controversies.” Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005) (citing U.S. Const. art. III, § 2). The “law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Town of Chester, N.Y. v. Laroe Ests., Inc., 581 U.S. 433, 435 (2017) (citation omitted). Thus, “the standing question is whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant [its] invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498-99 (1975) (citation and internal quotation marks omitted). The Article III standing requirements apply to claims for injunctive and declaratory relief. See Seals v. McBee, 898 F.3d 587, 591 (5th Cir. 2018), as revised (Aug. 9, 2018); Lawson v. Callahan, 111 F.3d 403, 405 (5th Cir. 1997).
Article III standing is comprised of three essential elements. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016), as revised (May 24, 2016) (citation omitted). “The plaintiff must have (1) suffered an injury-in-fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements.” Id. (internal citations omitted). Furthermore, “[a] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Town of Chester, N.Y., 581 U.S. at 439 (citations omitted). However, the presence of one party with standing “is sufficient to satisfy Article III’s case-or-controversy requirement.” Texas, 809 F.3d 134 (citing Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 52 n.2 (2006)).
- 119-120
So, the judge goes through an extensive list of cases by which SCOTUS determines whether parties who file lawsuits in federal court have actual “cases or controversies.” I have previously criticized the determinations in cases of importance which SCOTUS refused to hear because it said the parties did not have standing. It is just a way for the courts to decide not to do their jobs. pp.120-145.
Judge Doughty then states:
“The right of free speech is a fundamental constitutional right that is vital to the freedom of our nation, and Plaintiffs have produced evidence of a massive effort by Defendants, from the White House to federal agencies, to suppress speech based on its content. Defendants’ alleged suppression has potentially resulted in millions of free speech violations. Plaintiffs’ free speech rights thus far outweighs the rights of Defendants, and thus, Plaintiffs satisfy the final elements needed to show entitlement to a preliminary injunction…. “
- 144-145
In conclusion Judge Doughty states:
Once a government is committed to the principle of silencing the voice of opposition, it has only one place to go, and that is down the path of terror to all its citizens and creates a country where everyone lives in fear.
Harry S. Truman
The Plaintiffs are likely to succeed on the merits in establishing that the Government has used its power to silence the opposition. Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; opposition to the lab-leak theory of COVID-19; opposition to the validity of the 2020 election; opposition to President Biden’s policies; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power. All were suppressed. It is quite telling that each example or category of suppressed speech was conservative in nature. This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech. American citizens have the right to engage in free debate about the significant issues affecting the country.
Although this case is still relatively young, and at this stage the Court is only examining it in terms of Plaintiffs’ likelihood of success on the merits, the evidence produced thus far depicts an almost dystopian scenario. During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian “Ministry of Truth.” (footnote omitted)
The Plaintiffs have presented substantial evidence in support of their claims that they were the victims of a far-reaching and widespread censorship campaign. This court finds that they are likely to succeed on the merits of their First Amendment free speech claim against the Defendants. Therefore, a preliminary injunction should issue immediately against the Defendants as set out herein….
at pp. 153-155
It will be interesting to watch the case proceed through the courts. The next step will be for the White House and government agencies to appeal to the Court of Appeals where there will be another argument.
It happened while this was being written when on July 14, the 5th Circuit Court of Appeals court temporarily paused the lower court’s order (Judge Doughty’s order) limiting executive branch officials’ communications with social media companies about controversial online posts.
The Circuit Court of Appeals ruling is strange because, since the case deals with the important issue of free speech, wouldn’t you think the injunction should be in effect until the case is argued at which time a stay could then be issued. Otherwise, as it is now with the stay by this Court, the White House and the government agencies are free to continue to stifle free speech. And you thought it was foreign governments you should fear.
The case will no doubt be appealed to SCOTUS where, if they will hear it, (remember they don’t have to, they have the sole authority to hear the case – maybe they will duck it with the “standing” issue) the case will be a major decision on whether the government and its agencies can, in the modern world when so many depend on social media, direct certain viewpoints and silence others so the public cannot hear a genuine debate about important topics.
To answer the question presented above – WHY IS ALL SPEECH IMPORTANT? – because the Constitution says so.
Free speech is an important right you have under our founding document. It is up to you to safeguard it carefully.
© 2023 Donald C Brockett, author of “The Tyrannical Rule Of The United States Supreme Court; How The Court Has Violated The Constitution”
Contact: donsbooks@proton.me
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Donald C. Brockett is a former Washington state attorney, who served 6 terms as Spokane County Prosecuting Attorney and is now retired after a total of 52 years between public and private practice.
During his time in the prosecutor’s office, he tried numerous cases in the District and Superior courts of Spokane County. For many years, he handled all appeals in the Washington State Supreme Court and later in that court and the newly created Court of Appeals for Division III. He has argued cases in the Ninth Circuit Court of Appeals, and the US Supreme Court.