On July 20, 2023, Congress held hearings on whether the Biden administration was “censoring” social media in ways that amounted to violations of the First Amendment. Among those called to testify before the House Select Subcommittee on the Weaponization of the Federal Government was D. John Sauer, a lawyer representing two states and a handful of social media users in a lawsuit alleging that Biden officials had pressured social media platforms to remove content the government did not like.
Sauer asserted that the Biden administration was engaging in a “federal censorship enterprise” that had “succeeded in transforming online discourse throughout America by rendering entire viewpoints virtually unspeakable on social media — the ‘modern public square.’” He also accused the government of directly interfering with the right of citizens to organize to petition the government for redress of grievances. “This ongoing distortion of the most fundamental American freedom,” he said, “is intolerable under the First Amendment.”
In May, the subcommittee, chaired by Rep. Jim Jordan, R-Ohio, published an 880-page report detailing accusations against the Biden administration for executing this “distortion.” The report contained a number of troubling instances in which the Biden White House did indeed exert pressure on social media companies to change their content moderation policies to restrict information related to COVID-19, the 2020 election and other subjects. It detailed how the campaign targeted both obvious falsehoods as well as accurate information, satire and other content that was not in violation of platforms’ content moderation policies. The result, it alleged, was a general chilling effect that distorted public debates and news stories, such as the possible origins of COVID-19 in a Wuhan lab where the U.S. government was funding genetic research. “The Executive Branch’s collusion with third party intermediaries to censor speech,” the report concluded, constituted “serious violations of the First Amendment throughout the Executive Branch during the Biden Administration.”
The report cited the testimony of freelance journalist Matt Taibbi. Speaking before the subcommittee on March 9, Taibbi described the contents and fallout of his reporting project, the “Twitter Files,” which revealed Twitter employees discussing company policies and controversial content moderation decisions in conversation with government officials. According to Taibbi — who was visited at his home by an IRS agent on the day of his testimony — the files revealed “a sweeping effort” to turn the internet into “an instrument of censorship and social control” in which the Biden administration played a lead role. “We learned,” he testified,
Twitter, Facebook, Google and other companies developed a formal system for taking in moderation ‘requests’ from every corner of government: the FBI, DHS, HHS, DOD, the Global Engagement Center at State, even the CIA. [For every government agency scanning Twitter] there were perhaps 20 quasi-private entities doing the same, including Stanford’s Election Integrity Project, Newsguard, the Global Disinformation Index and others, many taxpayer-funded. [The focus of this network was] lists of people whose opinions, beliefs, associations or sympathies are deemed to be misinformation, disinformation or malinformation — a euphemism for information that is true but inconvenient.
As someone who devoted nearly 50 years of practicing law and defending the First Amendment, including decades on the Board of the ACLU of Southern California and in court defending free speech, I am deeply concerned about the extent to which the Biden administration, in its zeal to prevent the spread of misinformation about COVID-19 and the 2020 election, crossed the First Amendment line from permissible advocacy to unlawful coercion. An honest assessment and reckoning with the Biden administration’s free-speech record is a precondition of ensuring that freedom of speech is protected under the second Trump administration. Civil libertarians must call out violations of the First Amendment wherever we find them, regardless of the political affiliations of those who have transgressed. In a democracy that prides itself on the robust protection of free speech, we have much to fear when any government or political party uses the power of the state to threaten, silence or de-platform contrary viewpoints.
Fortunately, the bedrock of the First Amendment has been reaffirmed in two recent Supreme Court decisions related to censorship allegations. Hopefully, the Court will evenhandedly enforce these principles on all future presidents, including the one that takes office on Jan. 20. The big question is whether he will comply.
In two decisions this year, the Supreme Court clarified and reinforced the contours of First Amendment law when it comes to the difference between government persuasion and government coercion.
On May 30, in a rare unanimous opinion written by Justice Sonia Sotomayor, the Court confirmed, in National Rifle Association v. Vullo, that “Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” The Court reaffirmed a 1963 decision holding that a government entity is in violation of the First Amendment if it threatens to invoke “legal sanctions and other means of coercion” against a third party “to achieve the suppression” of disfavored speech.
The Vullo case arose from a complaint filed by the NRA against Gov. Andrew Cuomo, a Democrat, and his appointee, Maria Vullo, the superintendent of the powerful New York Department of Financial Services. The lawsuit alleged that she pressured certain entities she regulated to help her stifle the NRA’s pro-gun advocacy by threatening enforcement actions unless they stopped doing business with the NRA and other gun-promotion advocacy groups. “Those allegations, if true, state a First Amendment claim,” the unified Court held.
Civil libertarians must call out violations of the First Amendment wherever we find them.
Throughout its opinion, the court emphasized that while “Vullo was free to criticize the NRA” and pursue any alleged violations of New York insurance law, she “could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy.” The court concluded that “the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.” The case was sent back to the appellate court to deal with other issues.
Shortly after the Vullo decision, on June 26, the court decided Murthy v. Missouri, which addressed issues at the core of the Weaponization of Government Subcommittee hearings and report. The suit was brought by the Republican attorneys general of Louisiana and Missouri and five individual social media users who accused the White House, U.S. Surgeon General Vivek Murthy, the FBI, the CDC and others in the Biden administration of violating the First Amendment by seeking to persuade social media platforms to remove content the government deemed disinformation about COVID-19, the 2020 election and other subjects. Sauer, Trump’s nominee for solicitor general, represented the plaintiffs.
A federal district judge appointed by Trump issued an injunction forbidding the officials from contacting social media platforms to induce them to suppress content. The Fifth Circuit Court of Appeals agreed that some of the government’s challenged communications violated the First Amendment, but found the injunction too broad. It narrowed the injunction to prevent government actions, “formal or informal … to coerce or significantly encourage” social media companies to remove or reduce content.
While the Supreme Court didn’t directly decide the case on First Amendment grounds — it was technically dismissed for lack of standing — the 6-3 majority, composed of a mixture of conservative and liberal justices, confirmed that permissible government “influence” is different from impermissible government “coercion.” Amy Coney Barrett’s majority opinion — joined by Chief Justice John Roberts, and associate justices Sotomayor, Elena Kagen, Brett Kavanaugh and Ketanji Brown Jackson — explained that the plaintiffs had failed to allege any “concrete link” between the restrictions that the plaintiffs complained of and the conduct of government officials. Even if government officials sometimes “influenced” content-moderation decisions, “the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct.” Although government comments factored in some of the platforms’ moderation decisions, the “evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment.”
Conservative justices Samuel Alito, Clarence Thomas and Neil Gorsuch, in a dissent, explained why they believed the plaintiffs did in fact have standing and why the Biden administration had violated the First Amendment. Alito, speaking for all three, explained that the “most important role” for freedom of speech “is protection of speech that is essential to democratic self-government and speech that advances humanity’s store of knowledge, thought and expression.” The District Court had found “a far-reaching and widespread censorship campaign” conducted by high-ranking Biden administration officials against Americans who expressed certain disfavored views about COVID-19 on social media.
In a notably nuanced explanation, Alito stated, “Our country’s response to the COVID-19 pandemic was and remains a matter of enormous medical, social, political, geopolitical, and economic importance, and our dedication to a free marketplace of ideas demands that dissenting views on such matters be allowed.” He conceded that “a fair portion of what social media users had to say about COVID-19 and the pandemic was of little lasting value. Some was undoubtedly untrue or misleading, and some may have been downright dangerous. But we now know that valuable speech was also suppressed. That is what inevitably happens when entry to the marketplace of ideas is restricted.”
Citing its newly minted decision in Vullo, Alito declared that “government officials may not coerce private entities to suppress speech,” and “that is what happened in this case.” What the officials did, Alito continued, “was more subtle than the ham-handed censorship found to be unconstitutional in Vullo, but it was no less coercive.” And because of the officials’ high positions, “it was even more dangerous.”
Both Murthy and Vullo illuminated the deep democratic challenges that the Biden administration faced. In the case of COVID-19, the government had a duty to protect public health and provide the American people with the most accurate information available to stem the spread of the virus — while also respecting their right to dissent on policy and science. In the case of the 2020 election, the government had a duty on the one hand to maintain order, to ensure the peaceful transition of power and to reassure the American people that the outcome of the election was the result of a reliable voting system in which they could have confidence — while also respecting the people’s right to raise questions about the election and to express their opinions.
Both Murthy and Vullo illuminated the deep democratic challenges that the Biden administration faced.
Under modern First Amendment law, the government is prohibited from engaging in direct censorship; it cannot enforce laws, regulations or executive decrees that punish or silence disfavored viewpoints through the force of law by imposing criminal, civil or regulatory penalties. In addition, as reaffirmed in Vullo, the First Amendment prohibits the government from engaging in indirect censorship, either by enlisting private third parties to act in concert to silence disfavored viewpoints or by threatening to invoke legal sanctions to coerce such parties to punish or suppress views that the government disfavors.
In evaluating whether the government has engaged in direct or indirect censorship, the Supreme Court has consistently acknowledged that government officials are free to share their views and criticize particular beliefs. They can do so forcefully in the hopes of persuading others to follow their lead, and they can rely on the merits and the force of their ideas, the strength of their convictions and their ability to inspire others. What they cannot do is use the power of the State to punish disfavored expression by wielding their awesome power selectively to suppress speech, directly or through private intermediaries.
In their accusations of indirect censorship, the administration’s critics often engaged in frantic right-wing hyperbole that deliberately obscured the distinctions carefully developed by the Supreme Court. A good example is right-wing blogger Jack Posobiec who posted on X, “BREAKING: The Twitter Files show Twitter was Censoring users based [sic] on Direct Requests from the Biden Team in October 2020….There needs to be an impeachment inquiry immediately.” According to the Southern Poverty Law Center, Posobiec is “a political operative and internet performer of the anti-democracy hard right, known primarily for creating and amplifying viral disinformation campaigns.”
Meanwhile, Republican attacks on Biden’s indirect censorship diverted the press and public attention away from Republican efforts in Congress and scores of state legislatures to engage in direct censorship by enacting laws banning books and restricting the comprehensive and unvarnished teaching of American history.
What, then, should we expect from the second Trump administration? As a candidate, the incoming president pledged to “bring back free speech in America, because it’s being taken away.” He has appointed “free speech advocates” Elon Musk and Robert F. Kennedy Jr. to powerful positions and promised, in a video posted to social media after winning reelection on Nov. 5, “to shatter the left-wing censorship regime.”
But this is the same Donald Trump who also threatens to cast aside the Constitution and take revenge against the “enemies within,” including the media (“Take away their licenses!”), political opponents and protesters. Which version of Trump will be sworn in as the 47th President? Will he and his key officials adhere to the guidelines that the Supreme Court has just unanimously reaffirmed? Or will they embrace illiberal threats by prominent liberals to criminally prosecute their adversaries for spreading “disinformation” and “propaganda,” as Robert Reich and Hillary Clinton have done? What happens when the shoe is on the other foot?
Based on his first four years in office, we should be prepared for Trump to carry out his threat to weaponize the Department of Justice, the FBI, the IRS, the Treasury Department and other agencies throughout the federal government to threaten social media platforms in order to silence what he now deems to be “disinformation” and “propaganda.”
In his first administration, Trump grossly abused executive power, including trampling protest and dissent. According to a recent report from the ACLU, Trump
deployed federal agents and surveillance to silence Black Lives Matter protesters or anyone he deemed to oppose his policies, threatened to use his power as president to punish his political enemies, and attacked journalists who criticized him. … Trump has already indicated that his administration would consider invoking the Insurrection Act to deploy the military to America’s cities — potentially targeting those with large BIPOC and immigrant communities — to suppress the right to protest. Trump has also indicated that his administration would attack online free expression by forcing media companies and online platforms to carry conservatives’ preferred speech.
Project 2025, which Trump, despite his previous disavowals, now appears to be using as a blueprint for his second term, lays out a comprehensive plan to dismantle the already insufficient guardrails that previously prevented presidents from abusing their power. The Supreme Court has already removed one such guardrail in Trump v. United States, ruling that the president has absolute immunity and cannot be criminally prosecuted for “official acts,” including using the Justice Department for his personal and political bidding.
As the ACLU sees it, “Trump can use a politicized Justice Department and the vast array of federal agencies to attack voters, protestors, journalists, abortion care providers and patients, his political opponents and any others he perceives as ‘enemies.’” Even now, “Trump allies in Congress are trying to use their investigative tools to chill free speech, including targeting civil society organizations and activists engaged in protected advocacy, such as opposing the war in Gaza or supporting LGBTQ rights.” A second Trump administration could also utilize surveillance programs such as the newly expanded Section 702 of the Foreign Intelligence Surveillance Act, which authorizes the collection of communications between U.S. persons and people outside the United States.
Trump’s new cabinet appointments have promised to do his bidding and take revenge against his political opponents.
In his congressional testimony, Taibbi recalled the infamous “Alien and Sedition Acts of 1798” that outlawed “any false, scandalous, and malicious writing against Congress or the president.” President John Adams, a Federalist, signed the law, denouncing his critics as “sympathizers” with a “hostile foreign power,” which at the time was France. Alexander Hamilton accused Thomas Jefferson, a Republican, and his supporters of being “more Frenchmen than Americans.” At least 26 individuals were prosecuted under the Sedition Act, all of them opponents of the Adams administration. Matthew Lyon, a Republican congressman from Vermont, was convicted for publishing letters in newspapers critical of Adams, and Republican-friendly journalist James Callender was convicted for writing articles supporting Jefferson. Seeing the danger posed by the Sedition Act and the repressive ideology it represented, Jefferson warned that democracy cannot survive where power is given to people “whose suspicions may be the evidence.”
Borrowing a page from this dark chapter in presidential history, Trump’s new cabinet appointments have promised to do his bidding and take revenge against his political opponents. Referring to the many criminal prosecutions against Trump, Pam Bondi, his pick for attorney general, has vowed “prosecutors will be prosecuted, the bad ones,” and “investigators will be investigated.” Kash Patel, Trump’s choice for FBI director, said he and others “will go out and find the conspirators not just in government but in the media. … We’re going to come after the people in the media who lied about American citizens who helped Joe Biden rig presidential elections.” Elsewhere, he has said, “We’re going to come after you, whether it’s criminally or civilly. We’ll figure that out. But yeah, we’re putting you all on notice.”
Will American institutions restrain a new round of presidential abuse? In Murthy and Vullo, the Supreme Court admonished Biden and the Democrats to respect the constraints imposed by the First Amendment. But if Trump and his underlings ignore those constraints, will the court’s conservative super-majority be loyal to the First Amendment or to the leader of their party? And even then, will Trump obey?