A Consent Decree for Freedom of Speech

The plaintiffs in Missouri v. Biden have won and received a court order vindicating their free speech rights. The dire predictions after the Supreme Court found insufficient standing to support a preliminary injunction in Murthy v. Missouri have failed to materialize. On March 25, the district court in Louisiana signed a consent decree in Missouri v. Biden admitting that the government wrongfully squelched Americans’ speech for years by strong-arming social media companies to eliminate disfavored speech. The decree allows New Civil Liberties Alliance (NCLA) plaintiffs Jill Hines and Aaron Kheriaty, along with Jim Hoft of Gateway Pundit and the Louisiana and Missouri attorneys general, to obtain sanctions should the surgeon general, CDC, or CISA attempt to do this again.

Contents of the consent decree

The consent decree is unprecedented. It begins with the recitation from the Executive Order 14149 that the Biden administration “trampled free speech rights by censoring Americans’ speech on online platforms” by “coercive pressure” on social media platforms. The complaint in this matter notes that in fact much of the pressure began in the first Trump administration but increased exponentially under the Biden administration’s “whole of government” approach to COVID-19 censoring. Be that as it may, “to prevent such censorship from recurring” the plaintiffs and defendants agree to the terms of the consent decree.

It explains the background of the suit and its current posture, which drove the settlement. The plaintiffs had won on the merits, regarding the censorship that occurred, before every judge who reached the merits from district court to the Supreme Court. But standing for a preliminary injunction was not yet proven. The district court had denied the government’s motion to dismiss on remand from the Supreme Court and was going to allow more discovery on standing. The initial discovery had been just eight depositions (including Dr. Anthony Fauci) and limited other inquiry. The court was awaiting the parties’ position on what the EO did to the case going forward. The key to settlement was ending “continuing costly and protracted litigation.” Also, there was uncertainty for both sides.

A good practical effect

The key criticism of the consent decree on social media is that it applies only to the plaintiffs in the case, as it prevents third parties from suing. It also allows only the CDC, the surgeon general, and CISA to be sanctioned. Nonetheless, this is enforceable by highly motivated plaintiffs against a heretofore recalcitrant federal government. As a practical matter it will be very difficult for the government to pressure the social media companies to remove messages from Joe Average American without also violating the consent decree against Jill Hines, Aaron Kheriaty, Jim Hoft, and the States of Louisiana and Missouri.

The concern that the next administration will dissolve the EO without consequence is addressed by the consent decree’s 10-year duration and by the statements in the order. The best part of the order for every American, now with the imprimatur of the federal judiciary, are paragraphs 20, 21, and 22. They provide:

The Parties agree that modern technology does not alter the Government’s obligation to abide by the strictures of the First Amendment.

They further provide:

The Parties also agree that government, politicians, media, academics, or anyone else applying labels such as “misinformation,” “disinformation,” or “malinformation” to speech does not render it constitutionally unprotected.

Finally,

[T]he Government cannot take actions, formal or informal, directly or indirectly—except as authorized by law—to threaten Social-Media Companies with some form of punishment … unless they remove, delete, suppress, or reduce, including through altering algorithms, posted social-media content containing protected free speech.

The social media companies covered are Facebook, Instagram, Twitter(X), LinkedIn, and YouTube. It allows plaintiffs to seek attorney’s fees in this matter.

A lawsuit years in adjudication

This landmark suit has proceeded for years. NCLA’s former clients, Jay Bhattacharya and Martin Kulldorff, are now running or working for the agencies they sued and so had to leave the suit. John Sauer, who worked first for the Missouri AG and then for the Louisiana AG, is now the solicitor general of the United States.

The issues of COVID-19 lockdowns and treatments, the 2020 election, and Hunter Biden’s laptop being Russian “disinformation” have faded. But this suit uncovered a vast censorship machine and led to congressional inquiries uncovering even more. It also engendered many judicial opinions reinforcing free speech in America. The government has promised not to do it again. We now have an order to hold the government to that promise.

This article was originally published by RealClearPolitics and made available via RealClearWire.