Ever since they were first created, social media giants such as Facebook and Twitter have defended their biased, intolerant, erratic, and often Kafkaesque censorship practices on the ground that they are private companies and therefore not subject to First Amendment principles. In recent years, however, it has become clear that this “not state actors” rationale has been a charade. Elon Musk’s recent disclosures of Twitter’s close collaboration with the FBI and other federal government entities, for example, reveal that for years Twitter executives and the federal government have worked together to curate and restrict the information Twitter users could send or receive. A recent lawsuit filed in the federal court for the Western District of Louisiana by the Attorneys General of Missouri and Louisiana and other plaintiffs, Missouri, Louisiana, Bhattacharya, et al. v. Biden, Jean-Pierre, Murthy, et al., will hopefully not only continue this trend of piercing the “not state actors” façade but deliver powerful cannon shots against the social media giants’ crumbling wall of immunity from First Amendment standards.
The nature of the AGs’ action is eloquently described in the opening paragraphs of their Amended Complaint:
In 1783, George Washington warned that if “the Freedom of Speech may be taken away,” then “dumb and silent we may be led, like sheep, to the Slaughter.” George Washington, Address to the Officers of the Army (March 15, 1783). The freedom of speech in the United States now faces one of its greatest assaults by federal government officials in the Nation’s history.
A private entity violates the First Amendment “if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint.” Biden v. Knight First Amendment Institute at Columbia Univ., 141 S. Ct. 1220, 1226 (2021) (Thomas, J., concurring) . . . . .
That is exactly what has occurred over the past several years, beginning with express and implied threats from government officials and culminating in the Biden Administration’s open and explicit censorship programs. Having threatened and cajoled social-media platforms for years to censor viewpoints and speakers disfavored by the Left, senior government officials in the Executive Branch have moved into a phase of open collusion with social-media companies to suppress disfavored speakers, viewpoints, and content on social-media platforms under the Orwellian guise of halting so-called “disinformation,” “misinformation,” and “malinformation.”
In this lawsuit, the AGs and the private plaintiffs seek to hold over 65 federal agencies and officials liable for violations of the First Amendment by their collusion with major social media platforms to suppress open dialogue on the Hunter Biden laptop coverup, election integrity and the security of voting by mail, the efficacy of mask mandates and Covid-19 lockdowns, and the origins of Covid 19, among other important topics. Multiple aspects of this litigation underscore its extraordinary importance, including:
It is a contest between approximate equals. In law school we are told the law is no respecter of persons, but a few years of experience teach this is not the reality. The reality is that large corporations represented by prestigious law firms whose lawyers frequent the same social circles as the judges are likely to get more respectful consideration of their pleadings than outsiders, who all too often find their meritorious claims dismissed on dubious grounds. In the Missouri et al. v. Biden et al. case, however, the state Attorneys General and the distinguished private plaintiffs bring a gravitas to their claims that no court, especially not a federal court in Louisiana, cannot easily ignore. Moreover, the AGs can marshal the resources to go toe-to-toe with the federal government in a legal slugfest. And ample resources will be needed; although the case is less than a year old, the docket entries already exceed 130.
The AGs’ case has proceeded into discovery. Dismissal before discovery (e.g., depositions and document production) is a common fate of lawsuits that challenge the woke ideologies of the prevailing political elites who have dominated the unholy alliance among Big Government, Big Media, and Big Tech. Given the AGs’ big league clout, however, the court allowed discovery to proceed in their case. So far, Missouri and Louisiana have deposed Dr. Anthony Fauci, FBI Special Agent Elvis Chan, Eric Waldo of the Surgeon General’s Office, Carol Crawford of the CDC, and Daniel Kimmage of the State Department; and depositions continue. Dr. Fauci’s seven-hour deposition was notable, among other reasons, for his denial of involvement in colluding with the social media to discredit the Great Barrington Declaration when documents showed he was directly involved. See, e.g., https://www.aier.org/article/forgetful-faucis-deposition-all-those-lies-are-hard-to-keep-straight/. Moreover, document production from the government defendants has exposed many details of government officials’ censorship practices, including the White House’s requests to Twitter to censor Robert Kennedy, Jr., a known critic of the White House’s COVID-19 narrative, and to Facebook to shut down conservative voices Tucker Carlson and Tomi Lahren. See, e.g., https://www.kttn.com/missouri-attorney-general-releases-more-documents-exposing-white-houses-social-media-censorship-scheme/.
In a recent speech, Missouri AG Andrew Bailey, discussing the AGs’ lawsuit, stated: “I have in my possession tens of thousands of documents and pages of deposition testimony that show we no longer live in the nation our parents inherited. We now have a historical epic characterized by a dystopian relationship between the federal government and big tech, social media giants.”
https://missouriindependent.com/2023/01/20/missouri-attorney-general-andrew-bailey-speaks-to-the-federalist-society/. Let us hope the AGs stay the course in their courageous and ambitious lawsuit, which has the potential to be the most important First Amendment case in several generations.
Reprinted with permission from the American Free Press.
Glen Allen is an attorney and founder of the FREE EXPRESSION FOUNDATION, a 501(c)(3) charitable foundation dedicated to the defense of citizens denied their Constitutional right to free expression See more at Free Expression Foundation,org, or write FEF, PO Box 65242, Baltimore, MD 21209-9998