Finally! A Win in Missouri v. Biden
What the settlement agreement in our case against government-sponsored social medial censorship means for Free Speech in the United States.
With yesterday’s settlement agreement, we can finally declare victory in our case, Missouri v. Biden, challenging government-sponsored censorship on social media. I have reported extensively on this case on this site and elsewhere. As I will explain in more detail below, the settlement prohibits the U.S. Surgeon General, Centers for Disease Control and Prevention (CDC), and Cybersecurity and Infrastructure Security Agency (CISA) from threatening social media companies into removing or suppressing constitutionally protected speech on Facebook, Instagram, X (formerly Twitter), LinkedIn and YouTube. It also bars these government authorities from directing or vetoing the companies’ social media content moderation choices.
Discovery in our case uncovered a vast censorship operation emanating from the highest levels of government. Various federal agencies and the White House directed social media companies to censor viewpoints that conflicted with the government’s preferred policies and messaging on topics ranging from covid policy and election integrity to gender ideology and foreign policy. These egregious First Amendment violations silenced not only the plaintiffs in our case but tends of thousands of other Americans. With this settlement, the federal government now agrees that government officials, politicians, media, academics, or anyone else labeling speech “misinformation,” “disinformation,” and “malinformation” does not make it constitutionally unprotected. That we prevailed in this case will help safeguard that marketplace of ideas from the federal government.
I will begin by highlighting and summarizing the key provisions in the Consent Decree, which the federal judge entered this morning. Keep in mind that this agreement, endorsed by the Court, functions just as a ruling from a federal judge would function. That is, it sets a precedent that can be cited for future cases with analogous findings of fact. While some commentators have understandably felt that the scope of the ruling was too narrow, as I will explain below, the Decree is valuable not only as it applies to the plaintiffs but as the precedent it sets can help future cases of this kind. The Decree opens:
Information uncovered on discovery in this case made this an issue during the 2024 presidential race. J.D. Vance explicitly mentioned it during the last vice presidential debate prior to the election, and on day 1 in office the Trump Administration issued an Executive Order designed to dismantle the federal government’s censorship machinery. The Consent Decree summarized these developments as follows:
The Decree describes the core principles at stake in this case and articulates a clear precedent for applying the First Amendment to the realm of novel digital technologies. I am pleased to report that this clear language endorses the core principles we were trying to establish with this case:
Then follows the central ruling which this Decree upholds:
Then we get the language of the Permanent Injunction which this ruling enforces. Contrary to the Defendant’s previous arguments in this case, the relief we sought does not restrict the Government’s own speech, but instead restricts the Government’s ability to suppress the speech of others:
What is the upshot of this final outcome in Missouri v. Biden?
Some early commentators have raised understandable concerns regarding the significance and scope of this injunction. I am sympathetic to those who have complained that the settlement agreement does not go far enough. You never get everything you want in a negotiated settlement, after all. We came to the conclusion that, given the difficulties establishing standing for purposes of the injunction when the case when to the Supreme Court, we did not want to run into similar difficulties regarding questions of standing to litigate the case as a whole. Since the Government was willing to concede key provisions that we were seeking, we felt this settlement was the best course of action.
Nevertheless, some commentators have expressed understandable concerns that the key provisions in the Decree are limited to the plaintiffs in this case:
Thus, it would seem that the Decree does not provide ready-made solutions for other Americans to enforce the provisions contained in the ruling, should they also be censored in the future. Does this suggest we are the only ones who can obtain injunctive relief should the government continue to censor citizens? Does this mean that Jill Hines, Jim Hoft, and yours truly—along with government officials in Missouri and Louisiana—are now the Country’s only free speech police on social media, or the only citizens whose constitutional rights are protected in this regard?
Well, no, not exactly.
While the Court’s jurisdiction to enforce this particular Consent Decree is limited to violations against the plaintiffs, others who are censored now have a clearly articulated precedent in Federal Court to press their case against the Government. Ever since the recent Supreme Court ruling in Trump v. CASA, Inc., which limited injunctions against executive orders to the parties involved, the Courts have been careful circumscribe the scope and application of their rulings to the plaintiffs in the case before the court. This is, I would argue, a positive development in most cases.
Without getting too far into the weeds, the SCOTUS ruling in Trump v. CASA found that injunctive relief must be limited to what is “necessary and appropriate to provide complete relief” to the specific plaintiffs (or parties with standing) in the case. A federal judge ruling in a specific case cannot broadly “set aside” an executive order or other policy for the entire country or non-parties unless that scope is required to fully redress the plaintiffs’ injuries. This makes it harder for a single judge to issue a broad ruling that arbitrarily strikes down entirely, let’s say, an executive order or law enacted by the legislature—something we’ve seen judges increasingly do in the last few years. This kind of “lawfare” has been a legitimate concern when it comes to the courts and activist federal judges.
To understand why SCOTUS ruled in this fashion in the above case, it’s worth keeping in mind that Courts are supposed to apply the law to specific cases, not broadly legislate (or even enforce laws) from the bench. However, even applying a specific court ruling only to the plaintiffs involved may still help other plaintiffs similarly situated by establishing precedents for federal courts to follow in analogous cases. This is, I would argue, generally how the federal courts should function, to avoid unwarranted judicial overreach and the unconstitutional usurpation of power from the Executive and Legislative branches of government.
So, would I have liked a much broader ruling in my own case to make it easier for any American citizen to seek relief from the court if censored by the Government? Yes, of course, but I also understand why the courts need to exercise an appropriate degree of restraint in this regard.
Before I conclude, it’s important to recall what else this case has accomplished. I said from the beginning that we had to win on this issue both in the legal courts and in the court of public opinion. What we have done with Missouri v. Biden in regard to public opinion is more important than what we accomplished today in the legal court. Our case, along with the Twitter Files, put this issue on the map for the American people. With our 20,000 pages of documents obtained on discovery, we were able to highlight and report on the scope and workings of the government’s Censorship-Industrial Complex. As mentioned above, in the vice presidential debate, the last question put to Vance was, Don’t you think your running mate is a threat to democracy? His response was, I think the real threat to democracy is the censorship by the government online that has been happening on an industrial scale. He was correct, and the issue was on the national agenda.
Not only did we get an Executive Order on day one of the new administration, we also saw CEO Mark Zuckerberg join Elon Musk in admitting in a letter to Congressman Jim Jordan and in an interview with Joe Rogan that what we alleged in the case was exactly what happened at Facebook. He acknowledged that it was wrong, apologized, and vowed not to do it again. That was a remarkable admission of wrongdoing for such a high-profile figure.
Of course, anyone familiar the history of free speech litigation in the U.S. knows that this fight is far from over, that you never win once-and-for all in a single case, that unless we continue to defend them in the court of law and the court of public opinion, the rights articulated in our Constitution remain merely words on a piece of paper. While far from the final word on government censorship in the digital age, our case did put a significant dent in the problem. Even if our legal victory was limited in scope, the principles articulated there are the central ones that we need to maintain. We did win in the courts and we are winning in the court of public opinion. For that, I am grateful to my intrepid co-plaintiffs and our diligent public and nonprofit lawyers who fought this good fight.
Finally, in closing, I would like to acknowledge our lawyers at the New Civil Liberties Alliance for their tireless work in representing us through four years of grueling litigation. I’ll let them have the last word here by including here their reactions to the ruling:
“This case began with a suspicion, that blossomed into fact, that led to Congressional hearings and an Executive Order that government censorship of Americans’ social media posts should end. Freedom of speech has been powerfully preserved by our clients, past and present, who initiated this suit.”
— John Vecchione, Senior Litigation Counsel, NCLA“The United States government cannot abridge speech directly, nor by inducing intermediaries to do so at its bidding. As recognized by last year’s Executive Order, that is exactly what happened, sometimes driven by a prior administration, sometimes driven by bureaucrats, but always unlawful.”
— Zhonette Brown, General Counsel and Senior Litigation Counsel, NCLA“Our clients joined this case to ensure there would be standing to oppose the federal government’s blatant censorship. NCLA is thrilled to vindicate Jill Hines, Dr. Aaron Kheriaty, and our former clients now in government service. Federal officials may police the line between lawful and unlawful speech, but they have no role in deciding if speech is true or false—even so-called misinformation, disinformation, or malinformation.”
— Mark Chenoweth, President, NCLA“The federal government’s social media censorship was the most massive suppression of speech in the nation’s history, it was profoundly important to resist it.”
— Philip Hamburger, Founder and Chief Executive Officer, NCLA
🥂🥂🥂🥂🥂 well done! Thank you and your co-plaintiffs and your legal team for your perseverance!
My mom says congrats too 💚
Congratulations dear Dr. Kheriaty -- you are a prince in a time of great need.