A Key Ruling Against Social-Media Censorship

This July Fourth there was special reason to celebrate. Judge Terry Doughty issued a preliminary injunction in Missouri v. Biden, which stands to become one of the most important free-speech cases in the nation’s history.

At stake is the federal government’s use of social-media platforms to censor Americans. Officials kept most of their censorship regime secret through two election cycles. Discovery in Missouri v. Biden, however, revealed extensive evidence of government coercion and encouragement of censorship. It is the most massive assault on free speech in the nation’s history.

Holding that the plaintiffs were likely to succeed in their First Amendment claims, Judge Doughty issued a preliminary injunction against eight federal agencies—including the Justice Department, the Federal Bureau of Investigation, the Department of Health and Human Services and the Centers for Disease Control and Prevention. Also enjoined were many officials, including the surgeon general and a host of White House staffers. The judge barred them from (among other things) “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.”

The plaintiffs include two states, Missouri and Louisiana. Epidemiologists Jay Bhattacharya and Martin Kulldorff are among the individual plaintiffs represented by the New Civil Liberties Alliance, where I am the CEO. They were co-authors of the Great Barrington Declaration, which criticized Covid lockdowns. Four days after it was issued, Anthony Fauci and other government officials proposed a “take down” of it.

The government-orchestrated censorship involves monitoring billions of posts and suppressing millions. It targets speech about electoral politics, medical and scientific debates, foreign policy and more.

Judge Doughty observes that “the censorship alleged in this case almost exclusively targeted conservative speech.” That reveals “viewpoint discrimination,” which is distinctively suspect in First Amendment jurisprudence.

“The United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth,’ ” the judge writes. The Cybersecurity and Infrastructure Security Agency has expanded its understanding of “infrastructure” to include “the spread of false and misleading information”—judged, naturally, by CISA. The agency asserts that the “most critical” infrastructure “is our ‘cognitive infrastructure.’ ” It views our minds as public property, to be protected through censorship.

Judge Doughty could have dismissed the case without an opportunity for discovery, as another judge did in another NCLA case, Changizi v. HHS, involving the same sort of censorship. Judge Doughty understood, however, that a largely secret censorship system can’t be evaluated under the First Amendment until after discovery.

The government will surely appeal in hope of preserving its censorial power over our “cognitive infrastructure.” So this isn’t the end of the censorship; it’s just the beginning of the end. But it’s important and well worth celebrating.

Mr. Hamburger teaches at Columbia Law School and is CEO of the New Civil Liberties Alliance.