Do you remember the massive Biden-era censorship case that was litigated mostly as Missouri v. Biden? I wrote about the case in several posts including “Walk away, Joe.”
The case resulted in a disappointing Supreme Court opinion that avoided the merits on the ground of standing in Murthy v. Missouri. I anticipated the result after the oral argument of the case which I summarized in “To the Supreme Court” (citing Professor Philip Hamburger’s article “Courting censorship”). John commented on the result in the post “Anticlimax.”
We now reach the point in the story that Aristotle called peripeteia, or a sudden reversal of fortune. Following up on his massive critique of administrative law, Professor Hamburger founded the New Civil Liberties Alliance. Professor Hamburger has written us to draw attention to the NCLA press release announcing the settlement and consent decree resolving Missouri v. Biden on favorable terms. This is the portion of the press release announcing the resolution (links omitted):
The New Civil Liberties Alliance, on behalf of its clients Jill Hines and Dr. Aaron Kheriaty, has reached a settlement agreement and Consent Decree concluding the landmark Missouri v. Biden lawsuit against government-induced social media censorship. This is the same case that previously went to the U.S. Supreme Court as Murthy v. Missouri when the Biden Administration appealed a Preliminary Injunction that the U.S. Court of Appeals for the Fifth Circuit awarded NCLA’s clients. The Consent Decree awaits final court approval by Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana, along with the attorneys’ fees.
The unprecedented 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. Representing individual plaintiffs in this lawsuit who were censored on social media as part of the Biden Administration’s “whole of government” effort to oppose speech it disliked, NCLA celebrates this milestone victory for First Amendment free speech rights.
In June 2024, the Supreme Court vacated the Preliminary Injunction in this case that barred many government officials from coercing and significantly encouraging social media platforms to censor constitutionally protected speech. The Supreme Court wrongly held that Ms. Hines and Dr. Kheriaty—as well as then-NCLA clients Drs. Jayanta Bhattacharya and Martin Kulldorff who had to withdraw from this case upon joining the Trump Administration—lacked standing to support a preliminary injunction. However, NCLA returned to district court and continued fighting efforts to dismiss the case after the Supreme Court’s ruling. Discovery in this case uncovered a vast operation emanating from the highest levels of government. NCLA revealed how agencies and the White House directed social media companies to censor viewpoints that conflicted with federal government messaging on topics ranging from Covid-19 to elections. These egregious First Amendment violations silenced NCLA’s clients and many other Americans.
The Trump Administration condemned this censorship scheme in an Executive Order on President Trump’s first day back in office last year. He noted that the “government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the government’s preferred narrative about significant matters of public debate.” In today’s settlement, the Trump Administration agrees that government, politicians, media, academics, or anyone else labeling speech “misinformation,” “disinformation,” and “malinformation” does not make it constitutionally unprotected. People are bound to make false statements now and then when they speak their minds, a freedom the First Amendment guarantees. This settlement helps safeguard that marketplace of ideas from the federal government. NCLA’s clients, Jill Hines and Aaron Kheriaty, are granted the right to enforce the Consent Decree should the government violate it.
Former Missouri Attorney General (now Missouri Senator) Eric Schmitt also claims victory in a press release and on X. Current Missouri Attorney General Catherine Hanaway claims victory in her own press release. Returning to my Aristotelian analysis, I would note (as the NCLA press release implies) that the case might have died a tragic death in the Supreme Court were it not for the return of President Trump to office.
MORE: Tyler O’Neil has an excellent account of events in the Daily Signal story “Consent Decree Marks Final Defeat of ‘Orwellian’ Biden ‘Censorship Regime.’”
