Commentary
Champions of free speech had cause to rejoice over federal Judge Terry A. Doughty’s fitting Independence Day ruling in the landmark Missouri v. Biden case freezing federal government-led speech policing.
The preliminary injunction halted a censorship system responsible for staging perhaps “the most massive attack against free speech in United States’ history,” according to the judge (pdf).
Despite the magnitude of the judge’s decision, it’s far from a guarantor of our First Amendment rights. That much was made clear just 10 days later when the federal government obtained a temporary administrative stay at the Fifth Circuit Court of Appeals.
Two of three presiding judges at least preliminarily bought the government’s argument that preventing it from inducing social media companies to censor unauthorized facts and opinions, under the guise of combating “mis-, dis-, and mal-information” (MDM), caused the feds “irreparable harm.”
The underlying case remains pending. While Judge Doughty believes the plaintiffs are likely to prevail in their argument that the government violated the First Amendment on an unprecedented scale, the feds’ dogged defense of their censorship system suggests they will fight up to the Supreme Court to maintain it.
Even if the plaintiffs win at the highest court, no American should be satisfied, nor rest easy, knowing that only federal judges stand between their most fundamental rights and tyranny.
Robust legislation must reinforce good jurisprudence.
Congress should defund and dismantle the censorship apparatus that Missouri v. Biden, the Twitter Files, and its own oversight efforts have helped to unmask. Not a single penny of taxpayer dollars should be used to silence ourselves.
A review of Republican-led legislative efforts, primarily but not exclusively out of the House, suggests our representatives are making strides toward achieving this end.
Congress is currently taking up the annual National Defense Authorization Act (NDAA). It contains a provision (pdf) prohibiting the Pentagon from funding any organizations that “advise the censorship or blacklisting of news sources based on subjective criteria or political biases,” under the banner of “‘fact checking’ or otherwise removing ‘misinformation.’” The House-passed provision explicitly bars the Defense Department from underwriting NewsGuard, the Global Disinformation Index, and Graphika Technologies (pdf), the latter two having been implicated as players in the “Censorship-Industrial Complex.”
Congress is also targeting federal government-led speech policing in appropriations bills.
At the time of this writing, the GOP-led House has drafted funding bills containing language prohibiting government-led censorship efforts at the Executive Office of the President (pdf), Justice Department and FBI (pdf), Defense Department (pdf), State Department (pdf), and Homeland Security Department (pdf), among myriad other agencies.
This is significant, because these agencies have all been responsible, directly or by proxy, for inducing social media companies to censor core political speech and/or using public funds to target conservative speech.
Generally, these appropriations bills prohibit agencies from using funds to “classify or facilitate the classification of any communications” by Americans as MDM, or partner with NGOs or other groups serving as effective cutouts “that pressure or recommend private companies to censor lawful and constitutionally protected speech.”
The appropriations bill covering the State Department (pdf) importantly prevents the Global Engagement Center, a key cog in the Censorship-Industrial Complex as exposed in the Twitter Files, from engaging in any programs or activities that threaten the First Amendment rights of Americans under cover of combatting foreign propaganda and disinformation.
The Homeland Security spending bill includes a provision—one I supported, including in testimony before the House Homeland Security Subcommittee on Oversight, Investigations, and Accountability—that is broader, deeper, and arguably stronger than analogous ones in other bills.
It prohibits the Department of Homeland Security from engaging in speech-policing, including through the creation of a “Disinformation Governance Board” or any other such entity, and through cutouts. Unlike other bills, it also lays out in specific detail the myriad censorious acts government authorities or their proxies can’t “instruct, influence, direct, or recommend” social media companies to do. Perhaps most importantly, it contains an enforcement mechanism. The bill stipulates that any government officer or employee who engages in prohibited conduct “shall be removed from the Federal service.”
One notable appropriations bill currently lacking in anti-censorship language is that funding the Health and Human Services Department (HHS). This is a significant omission since much of the government-led Chinese coronavirus-related censorship emanated from the HHS, National Institute of Allergy and Infectious Diseases, Centers for Disease Control and Prevention, and related agencies and offices previously enjoined in Missouri v. Biden for their conduct. We will see if House Republicans ultimately amend the bill, or if this oversight persists.
As for the “dismantling” part of the equation, Republican Sen. Rand Paul is poised to introduce the “Free Speech Protection Act.” Mr. Paul says that, among other things, this bill will effectively codify Judge Doughty’s now-stayed injunction in preventing the feds from colluding and conspiring with cutouts and the social media companies to censor speech. Perhaps most importantly, the bill would impose “mandatory severe penalties” on those who violate it. Reportedly, Rep. Jim Jordan (R-Ohio) will be introducing a companion bill in the House, which would build substantially on a related piece of legislation passed in March.
These legislative efforts may be more fraught than the judicial ones, particularly when it comes to appropriations bills likely to be dead on arrival in the Senate.
Even if any such anti-censorship legislation gets through Congress, it will land on the desk of a president who sits atop the federal government-led censorship apparatus.
Still, it’s heartening that some in Congress are working at minimum to force their colleagues to defend the indefensible in the policing of our speech by federal agents.
Ultimately, the First Amendment should serve as the ultimate permanent injunction on federal government-led speech policing.
Too, the First Amendment ought to trump and render superfluous free speech laws.
But the First Amendment hasn’t held.
Until we restore a culture to sustain it, there’s no substitute for aggressive legal and political action.
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.