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In the past few years, I've occasionally discussed the perils of censorship by proxy. This is where a democratic government incentivizes or extorts private entities to censor speech on behalf of the government in a way that would be illegal for the government to do directly. In a recent court case, censorship by proxy has reared up once again in case where initial US federal government objections were overruled. The case can now proceed to court.

In a thorough and well-reasoned decision, Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana has denied government defendants’ motion to dismiss in State of Missouri, et al. v. Joseph R. Biden, Jr., et al. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, represents renowned epidemiologists Drs. Jay Bhattacharya and Martin Kulldorff, as well as Dr. Aaron Kheriaty and Ms. Jill Hines, in a lawsuit that has exposed an elaborate, multi-agency federal government censorship regime. Judge Doughty wrote, “The Court finds that the Complaint alleges significant encouragement and coercion that converts the otherwise private conduct of censorship on social media platforms into state action, and is unpersuaded by Defendants’ arguments to the contrary.”

Discovery in the lawsuit unequivocally establishes that at least eleven federal agencies and sub-agencies, including CDC and DHS, directed social media companies to censor viewpoints that conflict with the federal government’s messaging on topics ranging from Covid-19 to elections. Federal officials engaged in a lawless, expansive censorship campaign that employed illicit tactics—including coercion, collusion and coordination—on social media companies to suppress the airing of disfavored perspectives on Covid-19 and other topics. As a direct result of state action, NCLA’s clients were blacklisted, shadow-banned, de-boosted, throttled, and censored, merely for articulating views opposed to government-approved views on Covid-19 restrictions and regulations. Judge Doughty held that “Plaintiffs have plausibly alleged state action under the theories of joint participation, entwinement, and the combining of factors such as subsidization, authorization, and encouragement.”

In confirming Plaintiffs’ standing, Judge Doughty said, “The threat of future censorship is substantial, and the history of past censorship is strong evidence that the threat of further censorship is not illusory or merely speculative.” Judge Doughty also found Plaintiffs’ alleged injuries-in-fact are “redressable by the Court,” and that Plaintiffs had demonstrated sovereign immunity does not bar their First Amendment, ultra vires, or APA claims.

In case one thinks this could somehow not be abused, I'll note a year old study that alleged over 600 times where a large social media outlet (here called "Big Tech") suppressed speech in favor of Joe Biden's 2020 campaign or subsequent administration in a two year period.

MRC [Media Research Center] Free Speech America tallied 646 cases in its CensorTrack database of pro-Biden censorship between March 10, 2020, and March 10, 2022. The tally included cases from Biden’s presidential candidacy to the present day.

The worst cases of censorship involved platforms targeting anyone who dared to speak about any subject related to the New York Post bombshell Hunter Biden story. The Post investigated Hunter Biden and the Biden family’s allegedly corrupt foreign business dealings. Big Tech’s cancellation of that story helped shift the 2020 election in Biden’s favor. Twitter locked the Post’s account for 17 days. In addition, Twitter slapped a “warning label” on the GOP House Judiciary Committee’s website for linking to the Post story.

Big Tech even axed those who blamed the current inflation crisis on Biden. For example, Facebook censored Heritage Action, the advocacy arm of the conservative Heritage Foundation, on March 15, simply for posting a video quoting Biden’s embarrassing statements on energy policy. Facebook placed an interstitial, or filter, over Heritage Action’s video, suppressing the post’s reach. The video showed Biden and officials in his administration explaining how his policies would cause gas prices to rise.

But the largest category by far included users who dared to call out Biden's notoriously creepy, touchy-feely behavior around women and children. The 232 cases of comedic memes, videos, or generic posts about Biden’s conduct composed more than one-third of CensorTrack's total instances of users censored for criticizing the president.

The allegations of the lawsuit are interesting. For example, two US states (Missouri and Louisiana) are among the large mix of plaintiffs and there are assertions that they have special standing to sue for various reasons (such as protecting the interests of their citizens and quasi-sovereignty status). A few of the claims are: various acts of censorship described in the suit are unconstitutional because they were carried out at the behest of the US federal government - censorship by proxy; that in addition, the two states have a duty (based on their state constitutions) to protect the speech of their citizens (I believe every state in the US has something similar in their constitutions); and that similarly, the two states can't hear all the voices of their citizens via social media because of this selective censorship. While the last is a dubious legal argument in this situation IMHO it does bring up an interesting point. If a future state government relies on the large social media platforms to be informed about what its citizens want, is that something that is legally actionable on anyone? Obviously, there's a variety of deception possible with fake accounts (possibly driven by AI) and such to twist the perception, but some of that exists even with older technology like mail. The practice of astroturfing, or creating a fake "grass roots" lobbying campaign, started as automated mass mailings and phone calls to legislators.

So I guess the TL;DR is that once again the courts are addressing abuses of censorship by proxy along with the problems of how a government communicates with its citizens in an age where fake communication is getting easier and real communication can be censored most likely legally.