With the recent torrent of repugnant and oligarchic rulings from the US Supreme Court, it’s easy to overlook another ghastly ruling from the federal bench: US District Judge Terence Doughty’s sweeping, incoherent injunction holding that most federal government officials cannot contact employees at key social media platforms and Internet companies. Doughty’s diktat takes hold as he prepares to rule on the outcome of a broader case brought by the attorneys general of Louisiana and Missouri claiming that the Biden administration improperly pressured digital concerns to tamp down on misinformation during the Covid-19 pandemic. The complaint, which also included Gateway Pundit impresario Jim Hoft as a plaintiff, also laments the alleged crackdowns on the now-infamous Hunter Biden laptop story and on false claims about the 2020 election’s fraudulence.
Doughty was appointed to the federal bench by President Donald Trump in 2017, and his lengthy opinion supporting the injunction is a work of pure MAGA delirium. He announces at the outset that, should the plaintiffs prove their claims, “the present case arguably involves the most massive attack against free speech in United States history.” How likely is Doughty to find said case to be proven? Well, this likely: “During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’”
Doughty clearly is unacquainted both with the history of free-speech suppression in the United States and the contents of 1984. Threats to core First Amendment freedoms have everything to do with the stifling of expression deemed hostile to state power, whereas the right-wing hyperbole around the debunking of false Covid claims and election lies dishonestly targets the opposite phenomenon—preserving good-faith discourse in the name of public health and the preservation of democracy. For a sample of the real abuse of First Amendment rights at the behest of the state, the judge could begin with the Alien and Sedition acts, carry on through to the Palmer Raids and the McCarran-Walter Act, on through to the present manias of book-banning and curricular inquisitions to stamp out LGBQT+ content and any material suggestive of the dread bacillus of critical race theory. As for the Ministry of Truth, Doughty, like many right-wing apparatchiks, seems to understand it as an all-purpose symbol of meddlesome government overreach; in reality, it was devoted to propagating manifest lies as authoritarian organizing slogans: “War Is Peace,” “Freedom Is Slavery,” and “Ignorance Is Strength.”
In this regard, it’s Doughty’s court, not the Biden administration, that’s functioning as the Ministry of Truth. “Here you have a federal judge issuing prior restraint on speech for government employees in the name of the First Amendment,” says Siva Vaidyanathan, Robertson Professor of Media Studies and director of the Center for Media and Citizenship at the University of Virginia. “He could have easily said, ‘In the event that representatives of the government issue some sort of threat, even a veiled threat, to a company like Twitter or Facebook, that should be subject to certain penalties.’ But to do prior restraint on a broad set of expressions that are actually in the public interest is mind-boggling. This is all so upside down—it’s one of the most anti–First Amendment decisions you can ever imagine, just perverse in every way.”
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Effacing the plain ideological thrust of the plaintiffs’ case is also an abuse of power straight out of the Oceania playbook. “The state officials from Louisiana and Missouri who brought this case did so with a stated animus toward a political party,” says Nora Benavidez, senior counsel and director of digital justice and civil rights for the pro-democracy media advocacy group Free Press. “That piqued my own Spidey sense, that the interests of the plaintiffs were not neutral. There’s a companion project in Congress right now pursuing the same end—going after people who are studying misinformation. This creates a groundswell of chilling and fear on these issues.”
Benavidez doesn’t give much quarter on First Amendment issues—she helped litigate PEN America’s suit against Donald Trump over threatened retaliation against members of the press he targeted for insufficient MAGA fealty. “I’ve long advocated for protections around private speech,” she says. “We know that those in power, whether a former, current, or future administration, can abuse that power to suppress speech they dislike.” But none of the issues raised in this complaint approach that threshold. Ensuring reliable and factual information about both the Covid pandemic and the legitimate operations of the electoral system are fundamental public goods—and the effort to discredit and disrupt the flow of that information is a basic abridgment of democratic public order, akin to the classic example of unprotected speech, yelling “Fire!” in a crowded theater. “We need coordination between government and information platforms so that people have the most credible and easy access to information about how to vote and where to vote, the mechanics of democracy,” Benavidez says. “We also need labels on platforms for Covid lies, which can be fatal.”
Doughty’s opinion arrives at a moment when not just Congress and MAGA attorneys general are militating for less oversight in these matters, Benavidez notes—digital monopolies are as well. “The platforms have been mostly ignoring this mandate, acting like moderation might be working on its own. But we know that’s not true. Platforms ahead of the 2020 election monitored their policies to make sure that toxicity and lies were at least somewhat restrained. Then they relaxed them immediately after the election, and we then saw a rise in horrible, violative content, which arguably led to January 6. So the correlation between horrible violative content on platforms and consequences in the real world is not something we have to debate anymore…. The plaintiffs have brought this suit in a supposed need to protect people, but as a precedent, this can encourage others in a political matter to use the rhetoric of free speech in a way that shuts down speech.”
That’s certainly the immediate consequence of Doughty’s injunction, which abruptly institutes a sweeping ban on most interactions between government officials and platform administrators, apart from bright-line abuses such as criminal conspiracy and threats to national security. But it’s the nature of rapidly circulating digital information that cases demanding such emergency intervention tend to become apparent only after the fact, in the absence of some sort of content moderation. “When something reaches the level of a national security conspiracy,” Benavidez says, “it’s already too late for the platforms.”
Doughty’s opinion chiefly focuses on government efforts to stem the tide of misinformation around the Covid crisis—a first-order threat to public health that’s treated here as a pretext for power-mad bureaucrats to sanction free thought and expression out of nothing more than pure malice. “This opinion is just mouthing the unwarranted complaints of all the right-wingers convinced that efforts to limit misinformation and dangerous information about Covid were some sort of nefarious plot to squelch critics,” Vaidyanathan says. “As if people weren’t going to die from ingesting bleach—or of just getting Covid. The right-wing judiciary has already done a hell of a lot to make sure we don’t have anything close to public health going forward. And now, this judge has sanctioned a pretty low-level public health intervention—coming from those in the government who were legitimately concerned about stopping misinformation. The people who were at those platforms and companies wanted to help people, and needed the government’s help to do that.”
The allied claims of the plaintiffs in the case, concerning the platforms’ alleged stifling of the Hunter Biden laptop saga and of claims of election theft by Biden and the Democrats, are also empirically thin, to put things charitably. The Hunter Biden blackout lasted all of four days on Twitter, and the right’s Ahab-like pursuit of that story is itself testimony to how ineffectual it proved to be. Meanwhile, the evidence unearthed in the ballyhooed “Twitter Files” document dump actually shows that Twitter administrators didn’t do much of anything to suppress election lies on the site, according to a recent Washington Post report.
And that is the most worrying potential legacy of the Doughty opinion—it upgrades the delusional precepts of the Twitter Files faithful into a de facto legal doctrine, while creating the very conditions for social media platforms to continue to handle the challenges of misinformation and lying in the dilatory fashion they strongly prefer. “The platforms have already been loosening their belts,” Benavidez says. “Twitter’s of course been abandoning moderation policies; YouTube has rolled back its policies on election lies; and on Meta, Trump is promoting election lies and Robert F. Kennedy Jr. is promoting vaccine lies. This ruling is an imperfect cover for platforms to do less ahead of 2024.”
