A federal judge has imposed tough restrictions on Biden administration agencies and officials liaising with social media companies over online content, a ruling that could set back efforts to combat misinformation over vaccine hesitancy and election subversion.
The injunction from a US district judge in Louisiana amounts to a highly unusual intervention by the courts in communications between the government and tech companies. It comes amid mounting pressure from Republican leaders and rightwing groups claiming collusion between the Biden administration and social media platforms to censor conservative speech.
In his ruling, Terry Doughty of the US district court for the western district of Louisiana sided with Republican attorneys general in Louisiana and Missouri who sued the Biden administration, claiming it violated the first amendment right to free speech. The judge said the plaintiffs were likely to succeed on the merits in showing that the government “has used its power to silence the opposition”.
He added that the Biden administration’s handling of social media content during the Covid pandemic resembled the “Orwellian ‘Ministry of Truth’”.
If the allegations raised by the Republican officials were true, Doughty wrote, they would involve “the most massive attack against free speech in United States’ history”.
The injunction covers several agencies including the Department of Health and Human Services and the FBI, as well as named officials such as the homeland security secretary, Alejandro Mayorkas. They are temporarily barred from meeting with social media companies with the purpose of pressuring them to remove or delete “protected free speech”, or encouraging them in any way to do so.
In a caveat, the judge said the government could continue to inform tech companies of criminal activity, voter suppression or threats to public safety or national security.
The White House said it was evaluating its options. The Biden administration is expected to appeal the ruling, which could eventually see the first amendment issues raised by the case reaching the supreme court.
Experts in combatting misinformation online warned that the order could impede arrangements in place for several years, meant to hold back the tide of online conspiracy theories. Especially threatened, they said, were efforts against false information relating to elections, vaccines and other critical areas of public life.
Nina Jankowicz, a specialist in disinformation campaigns, was initially named as a defendant in the Missouri case but removed from the suit on grounds that she no longer has a governmental role. In April 2022, she was appointed to lead a new Department of Homeland Security unit devoted to combating online conspiracy theories and false information.
The board was shut down days later, after it came under a massive storm of rightwing criticism accusing it of censoring conservative speech.
Speaking to the Guardian, Jankowicz said Tuesday’s injunction was the culmination of an ultra-rightwing campaign to crush efforts to constrain disinformation that started with the attack on her board.
“They got a win in shutting us down, so why would they stop there? This is why the lawsuit continues – because they’ve won – and nobody knows how to deal with it.”
Jankowicz said the Missouri and Louisiana lawsuit was consciously intended to stop work to combat misinformation.
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“It’s a weaponisation of the court system that is purposeful in disrupting work that needs to be done ahead of the 2024 election,” she said.
Jankowicz predicted that the ruling would lead to self-censorship on the part of civil servants, who will stop doing their jobs “because they don’t want to be on the end of a lawsuit like this”.
Republican leaders hailed the injunction as a major victory in what they portrayed as a protracted battle against leftwing censorship of their views. Eric Schmitt, the US senator from Missouri who jointly brought the lawsuit when he was attorney general of the state, said the ruling was a “huge win for the first amendment and a blow to censorship”.
In their filings, Missouri and Louisiana Republicans joined with rightwing media figures including Jim Hoft, founder of the conspiracy site Gateway Pundit, to accuse key federal agencies and officials of suppressing speech in violation of the first amendment.
They claimed “widespread collusion between government officials and social media companies” to censor content on issues such as Covid lockdowns, reporting about Hunter Biden, the president’s son, and allegations of fraud in elections.
Academic researchers have also been targeted in the Republican push. The injunction prohibits government agencies from collaborating with the Election Integrity Partnership, an alliance of researchers at Stanford University and the University of Washington who since 2020 have focused on disinformation related to federal elections.
“The fact that they would name these specific institutions is going to increase harassment towards them and stop them from doing the important work they’ve done for years to protect democracy,” Jankowicz said.
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