Trump Judge Tells Government To Shut Its Mouth Or He'll Shut It For 'Em

Score one for Matt Taibbi, we guess?

US District Judge Terry Doughty will save the First Amendment if he has to slap a prior restraint on speech that covers the entire federal government. In fact, he more or less did just that in a batshit crazy injunction that blocks the Biden administration from communicating with the social media platforms at all regarding disinformation.

The case involves the Republican attorneys general of Louisiana and Missouri plus an unholy consortium of every anti-vaxx weirdo and conservative grievance merchant from Robert F. Kennedy Jr. to the Gateway Pundit's Jim Hoft, AKA The Stupidest Man on the Internet. Last year they sued various figures in the Biden administration on the theory that they coerced and/or conspired with social media platforms to censor conservative messages and speakers. They claim that this turned Twitter, Facebook, and YouTube into government actors, and so when they booted, downgraded, or appended notes to anti-vax content, it violated the First Amendment.

It's not a new argument. In fact, it's the same stupid argument that Trump made when he sued the tech platforms for tortiously deplatforming him in 2021. But it's been rejected by every court because shut up, that is not how any of this works .

Or, as US District Judge James Donato put it in his order to dismiss Trump's claim that Twitter banned him because Rep. Adam Schiff threatened to ditch Section 230 protections for websites, making Twitter a government actor:

 The amended complaint merely offers a grab-bag of allegations to the effect that some Democratic members of Congress wanted Mr. Trump, and “the views he espoused,” to be banned from Twitter because such “content and views” were “contrary to those legislators’ preferred points of view.” But the comments of a handful of elected officials are a far cry from a “rule of decision for which the State is responsible.” Legislators are perfectly free to express opinions without being deemed the official voice of “the State.” 

Judge Donato sits in California — not Trump's preferred venue, but if you sue a tech platform, that's where you'll wind up. And no judge there or in the Ninth Circuit was going to countenance this garbage for a second. So, Louisiana and Missouri opted instead to sue the Biden administration, rehashing nonsensical claims about Hunter Biden's laptop and hydroxybonermectin, as well as all the "Twitter Files" nonsense, in the Western District of Louisiana. There they wound up on the docket of Judge Doughty, a Trump appointee who already issued nationwide injunctions against the Biden administration's ban on new federal leases for oil and gas drilling, as well as its vaccine mandate for healthcare workers.

In the latter, Doughty approvingly cited the Great Barrington Declaration, which advocated a herd immunity approach, and whose authors are in fact plaintiffs in this case. And so it is perhaps not surprising that this order points to Dr. Anthony Fauci and Dr. Francis Collins, the former head of NIH, emailing each other to agree that the declaration was garbage which should be nipped in the bud, and then making multiple media appearances to rubbish it. There's no evidence that either Fauci or Collins ever spoke to social media sites about the document, but social media sites suppressed it and deleted the accounts of its proponents, and that's good enough for Doughty to infer that there was coercion sufficient to turn the sites into government actors.

"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," he huffs, accusing the government of assuming "a role similar to an Orwellian 'Ministry of Truth.'”

In another passage, Doughty actually accuses the government of suppressing speech by not coordinating with the platforms. See, after warning the social media giants to be on the lookout for foreign government “hack and dump” operations during the 2020 election cycle, the government refused to comment on the stories about Hunter Biden's laptop, even though FBI investigators had taken custody of it from Rudy Giuliani in 2019. Why wasn't this piece of evidence in a pending criminal investigation circulated widely in the government and thence to public companies? INPEACH!

The whole order is bonkers, citing numerous contacts between the government pressuring Facebook to depress the virality of anti-vax content and claiming that it was done with a gun pointed at Section 230's head.

"Boot RFK Jr., or we'll start making platforms liable for user generated content," the Biden administration said nowhere but in Judge Doughty's fevered imagination. 

In point of fact, the platforms pushed back pretty hard against pressure to remove content, and most of what this order cites as evidence of government coercion is removal of content which violated the sites' terms of service. How is it coercive for the government to ask that fake Fauci accounts be taken down? Isn't that something the sites would be doing anyway?

But, you see:

Therefore, the question is not what decision the social-media company would have made, but whether the Government “so involved itself in the private party’s conduct” that the decision is essentially that of the Government. As exhaustedly listed above, Defendants “significantly encouraged” the social-media companies to such extent that the decision should be deemed to be the decisions of the Government.

And if you're playing that kind of Calvinball, well it makes perfect sense to say that the government isn't allowed to speak to social media platforms at all unless it's an issue of national security.

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.

Oh, sure, the government has a First Amendment right to speak, too. But when social media sites contact the CDC for accurate health information, and the government says "no, horse dewormer is a not an effective treatment for COVID," that violates the free rights of people who want to claim horse dewormer kills viruses and then can't because Facebook downranks their posts.

And if you're thinking, "gee, that horse dewormer joke is pretty out of date," yes, that is kind of the point. Because injunctions are supposed to prevent future harm. But Doughty is nonetheless slapping this insane injunction on the entire federal government in an odd-numbered year, with no election imminent for the plaintiffs to lie about, and after the coronavirus emergency has officially ended. What speech by the plaintiffs could he possibly be protecting at this point?

In short, this decision is fuckbonkers, and probably too crazy even for the Fifth Circuit, packed as it is with lunatics. Look for it to be stayed pretty quickly, if not by the appellate court than by the Supreme Court. Because a prior restraint on the speech of hundreds of thousands of government employees and the associational rights of tech platforms which might want to consult with their government is unconstitutional about six ways from Sunday.

The only possibly consolation we can take here is that unlike Judge Aileen Cannon, who is 42, or Judge Matthew Kacsmaryk, who is 46, Doughty is 64. So he's probably only got another two decades of insane rulings to go, not four. Hooray!

[ Missouri v. Biden , Docket via Court Listener]

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