Critics of Biden’s ‘Censorship Regime’ Say Government Dragging Its Feet on Lawsuit

The Biden administration is said to be dragging its feet on an explosive free speech case against its alleged “Orwellian” censorship of social media platforms. Those leading the lawsuit say it’s because the government wants to continue its censorship regime as long as possible before the presidential election.The Supreme Court has agreed to hear the case, Missouri v. Biden. In certifying it, the high court last week also approved the government’s request for a stay on a preliminary injunction from the Fifth Circuit. The injunction would’ve enjoined the government from continuing what two lower courts called a “coordinated campaign” by top federal officials and agencies to suppress undesirable opinions on public issues such as Covid lockdowns and election integrity. The suspension of that injunction “is a green light for future censorship,” the founder of the civil rights group representing four of the plaintiffs in the case, Philip Hamburger, of the New Civil Liberties Alliance, tells the Sun. The high court appears to be siding with the executive branch in its latest legal action, known as Murthy v. Missouri. “Undoubtedly,” Mr. Hamburger says, “there’s deference, in the sense of political deference, to the government.”Next year’s presidential election might have something to do with this “deference.” Oral arguments in Murthy will be heard in January or February, but the court won’t complete its review until late in the spring. Even if the ruling requires the government to immediately desist its behavior, several more months of the status quo will have passed as the contest for the U.S. presidency intensifies.“They want to continue censoring for as long as they can, probably leading up to the election,” a plaintiff in the case, Aaron Kheriaty, tells the Sun. “So the slower the court moves, the better for them.” Mr. Hamburger agrees that delays in the legal process will free the government to shape electoral outcomes. “Every month they get, it’s an advantage for them,” he says, noting that the Supreme Court has, in effect, become “the authorizing body for censorship.”Dr. Kheriaty interprets the Murthy ruling as “a procedural issue.” He says that some of the conservative justices on the court, such as Chief Justice Roberts, who voted in favor of the stay, would prefer to defer to the government until they can examine the evidence against it. Mr. Hamburger asserts, though, that “it’s not their job to defer. It’s their job to reach their own judgment. And they have a duty to follow the law, including their doctrines.”The doctrine involved in the government’s request for a stay is “irreparable harm,” a high threshold that ordinarily must be met in order for a court to stay an injunction. In Murthy, filed by the solicitor general of the Department of Justice, Elizabeth Prelogar, “the government made little or no effort to show irreparable harm,” Mr. Hamburger says. “That seems unjustified and unfortunate.”The government instead offered a series of hypotheticals on how a covered official’s desire to make certain statements “might be chilled” in the future if the injunction was applied. Yet as Justice Samuel Alito said in his dissent, joined by Justices Clarence Thomas and Neil Gorsuch, “it does not appear that any of the Government’s hypothetical communications would actually be prohibited by the injunction.”The opinion was no more than a few sentences long and bereft of reasoning, which would have provided “a good check on one’s decisions to make sure one’s not doing something arbitrary,” Mr. Hamburger says. He adds, though, “I don’t think they have an explanation that can stand up to daylight.”The stakes of Missouri are high. The suit is against more than a dozen federal agencies, including the Cybersecurity and Infrastructure Security Agency, which Dr. Khariaty says is “the queen of all Orwellian government euphemisms” in controlling social media users’ cognitive infrastructure and ultimately their choices on the ballot.A physician and bioethicist, Dr. Kheriaty joined the case alongside his colleagues, epidemiologists Jayanta Bhattacharya and Martin Kulldorff, whose skepticism of Covid lockdowns during the pandemic was deemed “dangerous” by Anthony Fauci and other government officials. “They didn’t censor us because we were wrong,” Dr. Kheriaty reflects. “They censored us because we were right.”While the alleged unconstitutional censorship appears to have been politically motivated, Dr. Kheriaty affirms that the fight against it is “not a partisan issue.” The plaintiffs themselves are politically diverse and include independents, Democrats, and Republicans. “We haven’t uncovered evidence that the censorship we’re worried about was happening during the Trump administration,” Dr. Kheriaty says. “But if we uncovered that evidence, we would be the first to bring it forward to the court.”Armed with vast resources and lawyers, the government has been fighting requests for subpoenas and depositions during the pre-trial arguments, as well as appealing the district courts’ granting of those requests. “I think they know they’re going to lose,” Dr. Kheriaty says. “So their tactic right now is to temporize — make the case go as slowly as possible,” while the agencies in question might develop more covert tactics of censorship that will be difficult to litigate. The government might also be waiting until one or more of the Supreme Court justices is no longer on the court and can be replaced by someone more favorable to censorship, Mr. Hamburger speculates. “Then,” he says, “we have a permanent censorship regime.”Mr. Hamburger worries that even a favorable ruling will not ward against the full scope of the government’s First Amendment violations. The Fifth Circuit’s injunction covers the White House, the surgeon general, the Centers for Disease Control and Prevention, the FBI, and the CIA, but not the federal officials involved in supplying information to social media platforms to coordinate censorship.“Some of the censorship will persist even if the government complies with the injunction,” Mr. Hamburger says. He predicts, though, that his side will prevail in court in the end. “The facts of the case are so strong that the court ultimately, I think, will hold most of what the government has done unconstitutional.” All four judges who have heard the case so far have sided in favor of its plaintiffs. As Dr. Kheriaty puts it, “we’re batting 1,000.”After a ruling is issued on the injunction, the Missouri case will progress to the next phase of additional discovery at the district court. The final ruling from the district court, whatever it is, will likely once again reach the Supreme Court on appeal.Asked why he agreed to serve as a plaintiff on a case that could take years to reach a conclusion, Dr. Kheriaty asserts, “This is not about me.” As a father of five children, he fears for the future of Americans’ first freedoms: “If we lose those, we don’t just lose individual rights. We lose the possibility of having a functional representative democracy.”

Critics of Biden’s ‘Censorship Regime’ Say Government Dragging Its Feet on Lawsuit

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