Just three days after he was sworn into office, a senior member of President Joe Biden’s staff pressured Twitter to remove a post by Robert F. Kennedy, Jr. Two federal courts have ruled that Biden’s administration violated the First Amendment rights of Americans by campaigning, threatening, and cajoling social media companies to censor speech it disfavored. Now, the Supreme Court will weigh in. Justice Samuel Alito announced Friday, October 20, that the Court will hear Missouri v. Biden, a blockbuster free speech case over Biden’s censorship efforts.
Missouri, Louisiana, and a list of private citizens sued the administration for violating Americans’ free speech rights. Sure, Biden’s top people waged a scorched earth campaign to censor anti-establishment voices on social media, but was it illegal? District Court Judge Terry A. Doughty thought so. The Trump appointee started his opinion with Voltaire: “I may disapprove of what you say, but I would defend to the death your right to say it.”
In a ten-point list of restrictions, Judge Doughty entered an order forbidding Biden and his seconds from pressuring social media platforms. The president’s solicitor general, Elizabeth Prelogar, challenged the order, filing at the Fifth Circuit Court of Appeals. Our most conservative federal appellate Court modified the order substantially but left in the critical restriction forbidding Biden and his appointees from “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech” by the plaintiffs.
Prelogar then appealed that order to the Supreme Court to overturn the injunction. Justice Alito handles emergency appeals from the Fifth Circuit for the Supreme Court, but, as was his prerogative, he did not rule on the request himself. Given the import, Alito brought the case to his colleagues to have the full Court rule on the request, which granted the administration request to suspend the lower court order until the Supreme Court rules on the underlying issues.
Justices Alito, Clarence Thomas, and Neil Gorsuch disagreed with their brother and sister justices’ decision to suspend the lower court order while the case was ongoing. That’s as strong an indication as there is these three are likely to rule against the Biden administration when the case is ultimately decided. The Court will answer whether Biden’s executive team’s conduct transformed “private social-media companies’ content-moderation decisions into state action,” violating First Amendment rights.
Clarke Humphrey was deputy digital director on the Biden-Harris campaign. He knew the power of a good post and what kind of political damage a well-crafted critical message could deliver. The President made Humphrey the Digital Director for the COVID-19 Response Team. On January 23, 2021, Humphrey sent Twitter the administration’s first takedown demands. By February 7, Twitter said it was “recently bombarded” with censorship requests from the White House. Was Biden’s censorship campaign part of the free speech of administration officials, or did it violate the free speech of Americans? We can expect the Supreme Court’s answer in 2024.