New York Post, August 13, 2023
Federal judges hammered fresh nails into the coffin of the Biden censorship regime Thursday in New Orleans. The thrashing the administration received will likely set up an epic Supreme Court battle that could help redefine freedom for our era.
A federal appeals court was hearing the Justice Department’s appeal of a July 4 decision in Missouri v. Biden that ignited pro-freedom rhetorical fireworks across the nation. Federal Judge Terry Doughty’s opinion condemned the Biden administration for potentially “the most massive attack against free speech in United States’ history.”
Doughty delivered 155 pages of damning details of federal browbeating, jawboning and coercion of social-media companies. He issued an injunction blocking the feds from “encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
The Biden administration rushed to sway the appeals court to postpone enforcement of the injunction and then sought to redefine all its closed-door shenanigans as public service.
In its briefs to the court, the Justice Department declared, “There is a categorical, well-settled distinction between persuasion and coercion,” and castigated Judge Doughty for having “equated legitimate efforts at persuasion with illicit efforts to coerce.”
The department denies that federal agencies bullied social-media companies to suppress any information. Instead, there were simply requests for “content moderation,” especially regarding COVID. Actually, there were tens of thousands of “requests” that resulted in the suppression of millions of posts and comments by Americans.
Team Biden champions a “no corpse, no delicta” definition of censorship. Since federal SWAT teams did not assail the headquarters of social-media firms, the feds are blameless. Or, as Justice Department lawyer Daniel Tenny told the judges, “There was a back and forth. Sometimes it was more friendly, sometimes people got more testy. There were circumstances in which everyone saw eye to eye, there were circumstances in which they disagreed.”
It’s irrelevant that President Joe Biden publicly accused social-media companies of murder for not censoring far more material and that Biden appointees publicly threatened to destroy the companies via legislation or prosecution. Nope: It was just neighborly discussions between good folks.
At the hearing, Judge Don Willett, one of the most principled and penetrating judges in the nation, had no problem with federal agencies publicly criticizing what they judged false or dangerous ideas. But that wasn’t how Team Biden compelled submission: “Here you have government in secret, in private, out of the public eye, relying on . . . subtle strong-arming and veiled or not-so-veiled threats.” Willett vivified how the feds played the game: “That’s a really nice social-media platform you’ve got there, it would be a shame if something happened to it.”
Judge Jennifer Elrod compared the Biden censorship regime to the Mafia: “We see with the mob . . . they have these ongoing relationships. They never actually say, ‘Go do this or else you’re going to have this consequence.’ But everybody just knows.”
Yet the Biden administration was supposedly innocent because the feds never explicitly spelled out “or else,” according to the Justice Department lawyer. This is on par with redefining armed robbery as a consensual activity unless the robber specifically points his gun at the victim’s head. As economist Joseph Schumpeter aptly observed, “Power wins, not by being used, but by being there.”
On top of censorship, the feds used deceit to taint the 2020 presidential election. As Dean John Sauer, the state of Missouri’s lawyer, explained, the FBI “engaged in deception” by prepping social-media platforms to expect false reports on Hunter Biden and then failing to admit the FBI had verified his laptop as authentic. That spurred pervasive suppression of the New York Post exposé in October 2020.
It was a prime example of federal meddling that Judge Doughty invoked to justify leashing the FBI and other agencies.
Because Biden ended the COVID emergency in May, the Justice Department pretends this case’s issues are moot. But the Biden administration also pressured social-media companies “to censor misinformation regarding climate change, gender discussions, abortion and economic policy,” as the July 4 court decision noted.
There is no reason to expect Team Biden and federal censorship contractors will not seek to taint another presidential election next year.
At least two of the three judges on last week’s panel will likely uphold all or part of the injunction against federal censorship.
The Biden administration will probably speedily appeal the case to the Supreme Court, setting up an epic showdown.
If Team Biden can destroy freedom of speech by renaming censorship “content moderation,” what other freedoms will it destroy with rhetorical scams?
If endless demands by the FBI and other agencies don’t amount to “coercion,” then it is folly to expect the feds to ever admit how they are decimating Americans’ rights and liberties.
James Bovard is the author of 10 books and a Brownstone Institute fellow.