RUTHFULLY YOURS

Thank goodness many Americans are still determined to preserve them. In July this column noted the wonderful birthday present to America courtesy of U.S. District Judge Terry Doughty of Louisiana, who issued a July 4 injunction barring the White House and a number of federal agencies from communicating with social-media companies for the purpose of censoring speech by users of their platforms. The wise judge acted in a lawsuit brought by the attorneys general of Missouri and Louisiana.

Now the Journal’s Jacob Gershman reports:

A federal appeals court ruled the Biden administration’s policing of social-media content during the pandemic likely violated the First Amendment, a decision that bars White House aides and other officials from pressuring online platforms to suppress protected speech.

In a 74-page opinion released late Friday, the New Orleans-based U.S. Fifth Circuit Court of Appeals said administration officials coerced social-media platforms to censor disfavored views about Covid-19 health policies, the origins of the pandemic and other divisive topics including election security and Hunter Biden…

The decision in many respects affirmed the conclusions of a federal judge who ruled against the government on July 4 and castigated the Biden administration for establishing what he called an “Orwellian ‘Ministry of Truth.’ ”

Mr. Gershman adds:

The plaintiffs argued that White House and other government officials used veiled threats of new regulatory liabilities and antitrust enforcement to strong-arm social-media companies to scrub disfavored views.

Other plaintiffs include epidemiologists who are authors of the Great Barrington Declaration, an October 2020 open letter critical of government Covid lockdown policies and school closures. They allege that the government led a campaign to discredit and suppress the declaration.

One of the reasons the opinion from the appellate judges runs to 74 pages is that there were so many abuses to note in the government’s relentless campaign to silence dissenting voices. The appeals court ruling states:

We find that the White House, acting in concert with the Surgeon General’s office, likely (1) coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences, and (2) significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment…

On multiple occasions, the officials coerced the platforms into direct action via urgent, uncompromising demands to moderate content. Privately, the officials were not shy in their requests—they asked the platforms to remove posts “ASAP” and accounts “immediately,” and to “slow down” or “demote” content…

When the platforms did not comply, officials followed up by asking why posts were “still up,” stating (1) “how does something like [this] happen,” (2) “what good is” flagging if it did not result in content moderation, (3) “I don’t know why you guys can’t figure this out,” and (4) “you are hiding the ball,” while demanding “assurances” that posts were being taken down. And, more importantly, the officials threatened—both expressly and implicitly—to retaliate against inaction. Officials threw out the prospect of legal reforms and enforcement actions while subtly insinuating it would be in the platforms’ best interests to comply. As one official put it, “removing bad information” is “one of the easy, low-bar things you guys [can] do to make people like me”—that is, White House officials—“think you’re taking action.”

… officials made express threats and, at the very least, leaned into the inherent authority of the President’s office. The officials made inflammatory accusations, such as saying that the platforms were “poison[ing]” the public, and “killing people.” The platforms were told they needed to take greater responsibility and action. Then, they followed their statements with threats of “fundamental reforms” like regulatory changes and increased enforcement actions that would ensure the platforms were “held accountable.”

The appeals court stayed its opinion to give the government time to appeal to the Supreme Court but also correctly noted that “the Supreme Court has rarely been faced with a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life. Therefore, the district court was correct in its assessment—‘unrelenting pressure’ from certain government officials likely ‘had the intended result of suppressing millions of protected free speech postings by American citizens.’”

As for those despicable accusations that social-media companies were killing people by refusing to censor Americans with dissenting views on Covid, in 2021 President Biden was among those who made such a claim against

and then took days to retract it.

As if his accusation wasn’t appalling enough, the president was attacking Facebook in part for not doing enough to squelch dissenting views on vaccines, when Mr. Biden himself had raised doubts about vaccines in 2020 when he thought it would help him win the presidency.

The president has been abusing our fundamental law and denying basic rights to which our citizens are entitled. If he doesn’t understand constitutional rights by now he probably never will and needs to be constrained by the Justices and then removed by voters. But if there’s any hope that Mr. Biden can be educated on this issue he might start by reading the Independence Day ruling in which Judge Doughty noted:

Although the censorship alleged in this case almost exclusively targeted conservative speech, the issues raised herein go beyond party lines. The right to free speech is not a member of any political party and does not hold any political ideology. It is the purpose of the Free Speech Clause of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail…

The principal function of free speech under the United States’ system of government is to invite dispute; it may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger… Freedom of speech and press is the indispensable condition of nearly every other form of freedom.

Judge Doughty also quoted George Washington:

For if men are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away, and dumb and silent we may be led, like sheep, to the slaughter.

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James Freeman is the co-author of “The Cost: Trump, China and American Revival” and also the co-author of “Borrowed Time: Two Centuries of Booms, Busts and Bailouts at Citi.”