In a recent interview on Joe Rogan’s show, Michael Shellenberger described his and his colleagues’ awakening to the pervasive government effort to stamp out unwanted ideas and opinions on Twitter. He, Matt Taibbi, and Bari Weiss—all independent journalists—were given access by Elon Musk to review Twitter’s files for, among other things, the reasoning behind Twitter’s clamp-down on news about such matters as COVID masking and the Hunter Biden laptop.

“Over time,” Shellenberger said, “we kept finding weird stuff. … We found that a lot of people [then employed at Twitter] used to work at the FBI. The CIA shows up in the Twitter files. The Department of Homeland Security. We’re like, ‘What the hell is going on?’”

“The story quickly shifted from what we, and I think Elon, thought, which was that it was just very progressive people being biased in their content moderation, in their censoring, to ‘There is a huge operation by US government officials, US government contractors … basically demanding that Twitter start censoring people.’ At that moment, the story shifted for all of us.” 

Up to now, most Americans probably thought that Twitter’s censoring of the public’s commentary was authorized by their extensive immunity from challenge under Section 230 of the Communications Decency Act, or because—in any event—the Constitution’s guarantee of free speech was not applicable to Twitter because the free speech provisions of the First Amendment only apply to the government.

But at roughly the same time that Shellenberger and others were shocked by what they found in Twitter’s files, a Federal District Court in Louisiana was considering whether to go to trial with a case in which the plaintiffs were alleging that the direct involvement of government agencies and employees with Twitter was a violation of the First Amendment.

In Missouri v. Biden, et al, the plaintiffs—including the states of Missouri and Louisiana and many private individuals whose views had been censored by Twitter—claimed that the pressure brought on Twitter by government agencies and government employees should be considered government action that deprived them of their free speech rights. Missouri and Louisiana, in turn, argued that the suppression of dissenting views by Twitter interfered with their ability to “follow, measure, and understand the nature and degree of [their constituents’] concerns,” among other impairments.

There were 67 defendants in this case, including President Biden, the Census Bureau, the Centers for Disease Control & Prevention, the Federal Bureau of Investigation, the National Institute of Allergy & Infectious Diseases, and the Departments of Commerce, Health & Human Services, Homeland Security, Justice, State, and Treasury. They also include some individuals with familiar names: Anthony Fauci, Karine Jean-Pierre, Alejandro Mayorkas, and Jennifer Psaki, to name a few.

After an extensive preliminary hearing on the defendant’s motion to dismiss, Judge Terry A. Doughty, a Federal District Judge in the Western District of Louisiana, denied the motion to dismiss and ordered the case to be tried.

Under Section 230 of the Communications Decency Act, “No provider or user of an interactive computer service [like Twitter] is held liable on account of . . . any action voluntarily taken in good faith to restrict access to or availability of material that the provider considers to be . . . objectionable, whether or not such material is constitutionally protected.”

In other words, Section 230 was intended to relieve Twitter and other social medium firms of liability for censoring material the firm deems objectionable. This broad language could, and does, include opinions of all kinds.

However, the plaintiffs alleged that their opinions and other communications had been censored by Twitter under pressure from elected individuals and employees of government agencies which, they argued, was a violation of the First Amendment’s guarantee of free speech.

In making its decision to proceed to a trial, the court noted that Twitter had been operating under direct threats from powerful individuals that Twitter’s statutory exemptions under Section 230 might be removed if it did not clamp down on what was considered “misinformation.” President Biden, then-House Speaker Nancy Pelosi, Vice President Kamala Harris, and Senator Richard Blumenthal were all cited as having made such statements.

“The Plaintiffs,” said the court, “cite to a plethora of evidence, including a review by the Media Research Center, which ‘identified 646 instances over the last two years where social media firms censored public criticism of then-Candidate and now-President Biden.” The plaintiffs’ claims, as summarized by the court, included violations of the First Amendment by all the agency defendants.

“Plaintiffs further allege,” said the court, “that, aware of the importance of this immunity to social-media companies, the Biden Administration and his political allies ‘have a long history of threatening to use official government authority to impose adverse legal consequences against social-media companies if such companies do not increase censorship of speakers and messages disfavored by Biden and his political allies.’”

“According to Plaintiffs, threats by the government to repeal or amend Section 230 of the CDA—if social-media companies failed to target and censor certain viewpoints—acted as a catalyst in kickstarting more aggressive censorship on social media.”

For example, the court cited the plaintiffs’ allegation that “[t]he Department of Homeland Security created a ‘Disinformation Governance Board,’ apparently intended to prevent the spread of ‘disinformation’ about issues such as the lab-leak of COVID-19, the efficacy of mask mandates and COVID-19 lockdowns, the Hunter Biden laptop story, and election integrity and the security of voting by mail [footnotes omitted]. According to the Plaintiffs, each of these topics has been heavily censored by various social media platforms, resulting in the suppression of speech in violation of the First Amendment.” 

One unusual element of the case was the defendants’ claim that a court order enjoining them from continuing to apply such pressure would not affect the decisions of third-party social-media companies (which were not defendants before the court), and thus would fail to redress Plaintiffs’ injuries. The court found, however, that the Plaintiffs had met their burden of showing that third parties (that is, the social-media companies) “will likely react in predictable ways … Plaintiffs have detailed the temporal and logical connection between Defendants’ statements and the social-media companies’ increased censorship—these allegations explain how stopping Defendants’ statements will likely stop the increased censorship.”

The defendants’ principal defense was based on a claim of sovereign immunity—that there had been no final decision by the agencies which could be challenged in court. However, the court found that the sovereign immunity defense is overcome when the plaintiff is alleging a violation of the Constitution. Other sovereign immunity arguments—that the employees of the agencies were acting without authority or that there had not been a final agency action in each case—were dismissed by the court.

To the defendants’ claim that their effort to stop the publication of plaintiffs’ views did not constitute “state action,” the court found that the Complaint alleges significant encouragement and coercion that converts otherwise private conduct of censorship on social media platforms into state action.” In sum, the Complaint “alleges extensive and highly effective efforts by government officials to ‘silence or muffle the expression of disfavored viewpoints.’”

Having shown that the defendants’ defenses could be overcome, the Court then found that the plaintiffs stated a valid claim for relief under the First Amendment. Although the First Amendment forbids “state action” that restricts free speech, the court found that “Plaintiffs have plausibly alleged joint action, entwinement, and/or specific features of Defendants’ actions combined to create state action.”

What makes this case important and potentially consequential is that it concerns insistent demands on the part of the government for the suppression of certain views, combined with the ability to modify or eliminate the benefits conferred by Section 230. This combination put the administration in a position that a non-governmental organization would not normally be able to attain and made its desires and interests into credible threats. It is possible to conceive of a government agency putting its ideas before Twitter or any other social media company without an implied threat, but the court seems to hold that in this case, the government crossed the line.

If the trial of this case actually results in liability for the individual and agency defendants, it may free the social-media companies of the government pressures that have reduced their publication of a wide variety of opinions. Nevertheless, even without government pressure, the staffs of these firms have shown that they are still willing and able—on various grounds—to [silence] suppress political speech that they find objectionable. For this reason, they will always require close attention from the public.