Update 2: 10 days later, the 5th Circuit Court of Appeals has paused the injunction pending oral arguments in that jurisdiction.
Update: Bizarrely, there are actually two cases before this same judge, both advancing extremely similar legal arguments, precedents, and evidence. In fact it has been proposed that they be consolidated. I wrote this article based on one, but the injunction was issued in the other (where a separate injunction was being considered). While my assessment of the RFK Jr suit stands, the other is the earlier and more substantial case, though equally political or disingenuous. To correct this mistake, the two cases are now separately treated. I apologize for the error.
Over the July 4 holiday, it emerged that a judge in Louisiana had issued an injunction preventing the White House from speaking to social media companies in certain ways. The lawsuit this decision is part of, it must be said, is quite mad.
The Washington Post first reported the news that the White House, per the injunction, must refrain from “urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
Such injunctions are intended to stop a behavior the plaintiffs allege is illegal, and if a judge believes a suit is likely to succeed, they can preemptively block (or “enjoin”) it to prevent further harm. And in this case there is plenty of purported evidence that the federal government is performing de facto censorship by coordinating with “three social-media companies—Facebook, Google, and Twitter.”
But even a cursory reading of the complaint lays bare the fact that this is a ridiculously inaccurate representation of the events in question. This case, Missouri v Biden et al, is notable not for its own merits but for the potential import of the judge’s decision.
Certainly the role and scope of the federal government in controlling disinformation, misinformation and anything else online is something that should be examined and questioned. But this lawsuit simply trots out the same old complaints of Hunter’s laptop, removal of anti-vaccine content and the Wuhan lab origin theory of COVID-19.
It’s a laundry list of right-wing conspiracies and canards that have been discredited or abandoned for want of interest over the last few years, but which certain operatives can’t seem to let go.
The complaint begins in the Trump administration and many of the agencies and people involved are under his authority at the time of the alleged behavior. But the first time Trump’s name is mentioned is on page 37, when the plaintiffs mention how Twitter removed a Trump associate’s tweet questioning the efficacy of masks. Then on page 41, Trump himself is the victim as he “raised concerns about the security of voting by mail, a major election-security issue.”
It’s a strange thing to blame the White House but not the guy in it. But a very revealing thing as well.
As the case has gone on, the plaintiffs have gotten many White House officials and Biden administration people in to talk about the period in question.
In a 400-page transcript of a deposition of Dr Anthony Fauci, who famously led the U.S. response to the pandemic and frequently clashed with Trump’s leadership, the plaintiff’s lawyer badgers him for hours about minutiae like whether he responded to an email about a study he may might have read in February of 2020. As the defendants later point out, the depositions of White House officials were pretty obviously fishing expeditions to collect enough circumstantial statements with which to garnish their “extravagant inferences.”
It’s almost pitiable how desperately the lawsuit peddles its conspiracy theories, making out routine emails to be collusion and removal of rule-violating content as censorship. The fundamental idea at the heart of the suit is that the government (but not Trump) infringes on the first amendment simply by expressing its own views to the proprietors of a social media company. It doesn’t hold water, or if it does, Trump gets wet too.
The defendants are appealing the decision to impose the injunction.
The RFK Jr. clone case
As noted above, Robert F. Kennedy Jr., a long-shot aspirant to the Democratic nomination, appears to have used the above case as a springboard and template on which to build his own. Many of his case’s additions are lifted directly from the terminally underwhelming Twitter Files, which we examined in detail here. If there was ever any blood to wring from this stone, it’s long gone.
The topics of this feeble retread are so tiresome and familiar and the basic characterizations of companies, practices and terms so egregiously wrong that a comprehensive refutation would be both boring and superfluous. No one should need to have it explained that the Census Bureau is not performing censorship when it asks people to report false census claims so it can correct them.
For the only thing you really need to see in order to understand how absolutely ridiculous this case is, see page 23.
“Sustained, successful efforts by federal officers to induce social-media platforms to censor speech appear to have begun in 2020,” the allegations begin. A variety of agencies allegedly worked closely, clandestinely, and in coordination to censor protected speech.
As many pointed out when this type of accusation appeared during the non-revelations of the Twitter Files, in the year 2020 Donald Trump was president of these United States. Every executive agency was under his authority and had been for years.
But the lawsuit says:
Because the two most prominent censorship “achievements” of that year—the suppression of the lab-leak theory of COVID’s origins and of reporting about Hunter Biden’s laptop—appear to conflict with the interests of and positions taken by then-President Donald Trump, it is doubtful that the White House was organizing or spearheading these federal censorship efforts.
Yes, the reason the administration responsible for the practices alleged by the lawsuit is not named as defendant is because, with no evidence whatsoever backing them up, the plaintiffs assert that the White House was not actually involved. But Biden’s was — starting in 2021 and apparently retroactively into 2020. This is a departure from reality, plain and simple.
The lawsuit cites statements by then-candidates Biden and Harris that social media needed to work harder to catch things like election-related disinfo, and that if they couldn’t do so then the government may need to rethink Section 230.
238. Backed up by these threats, the voluminous efforts by federal agents and federally partnered entities to induce viewpoint-based social-media censorship in the run-up to the presidential election of 2020 would reasonably have been perceived by social-media companies as demands that had to be substantially complied with on pain of potentially catastrophic consequences such as the loss of Section 230 immunity or an antitrust break-up.
239. The government’s censorship campaign proved highly effective.
240. For example, the censorship achieved through these efforts included suppression of President Trump’s own speech as well as many expressions of concern by Republicans about election security as a result of the massive increase in voting by mail during the 2020 general election.
In case you didn’t catch it, in 239 the lawsuit refers to Biden and Harris’s efforts as “the government,” during an ongoing presidential campaign when Trump — supposedly the target of this campaign — was actually, legally and visibly the government. In fact his administration was notorious for its frequent disputes with social media and the very public and frequent threats Trump made against the companies. These official actions, including executive orders and various public statements, are conspicuously not mentioned in the lawsuit.
It seems clear this lawsuit is a purely political document: RFK Jr is attempting to coddle conspiracies, appear tough on tech and scrupulously avoid criticizing or even mentioning Trump in this bizarre, outdated and deeply incorrect list of allegations.
The defense (a long list of officials and entities) has yet to file its response, and may challenge the injunction with a few well-placed points. The case is fresh and evolving, and if the injunction holds it is unclear what communications legally constitute what is enjoined. You can follow the latest filings here.
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