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The Biden Administration’s Assault on Free Speech

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Among the revelations in the so-called Twitter files was that government officials pressured social-media companies to censor posts unfavorable to the Biden administration. The White House has denied this, insisting that companies like Meta and Twitter adopted content-moderation policies on their own. But internal documents newly released by the House Judiciary Select Subcommittee on Weaponization of the Federal Government prove that government pressure led Meta to go beyond what it otherwise would have in censoring user speech.

Court-ordered discovery in Missouri v. Biden has already revealed that the White House strong-armed platforms into more censorship than they considered justified—prompting the judge to declare that the administration had made “arguably the most massive attack against free speech in United States’ history.” The new documents go further, showing that the administration drove much of Meta’s censorship.

In April 2021, Facebook (now Meta) executive Nick Clegg wrote to the company’s leaders, Mark Zuckerberg and Sheryl Sandberg: “We are facing continued pressure from external stakeholders, including the White House and the press, to remove more COVID-19 vaccine discouraging content” (emphasis in original). Mr. Clegg recounted a conversation he had with Andy Slavitt, then White House senior adviser for the Covid response. Mr. Clegg wrote that Mr. Slavitt was “outraged” that Facebook hadn’t taken down a meme, which joked that 10 years from now trial-lawyer commercials would be soliciting the vaccinated to seek damages. When Mr. Clegg protested that the administration was making “a significant incursion into traditional boundaries of free expression,” Mr. Slavitt (according to Mr. Clegg) dismissed such First Amendment concerns on the ground that the objectionable meme “inhibits confidence in Covid vaccines.” This prompted Mr. Clegg to comment to his colleagues that “given what is at stake here,” the company should “regroup to take stock of where we are in our relations with the WH, and our internal methods too.”

Meta acquiesced to the administration’s pressure. An internal Aug. 2, 2021, email from a Facebook employee on the Trust and Safety Team noted: “Leadership asked Misinfo Policy and a couple of teams on Product Policy to brainstorm some additional policy levers we can pull to be more aggressive against Covid and vaccine misinformation. This is stemming from the continued criticism of our approach from the US administration and a desire to kick the tires further internally on creative options.”

An internal Meta email from a few weeks later confirms that the company increased its censorship under administration pressure. After discussing “our response to the Surgeon General on COVID-19 misinformation,” another employee on the Trust and Safety team wrote, “we agreed to further explore four discreet policy options for reducing the prevalence of COVID-19 misinformation on our platforms.” Those policies targeted 12 individuals known as the “Disinformation Dozen” and were implemented on the platform shortly after the Aug. 2 email, resulting in removal of these accounts and many others.

At the government’s behest, Facebook also adopted a policy of removing posts discussing the lab-leak theory. In July 2021, Mr. Clegg emailed his colleagues to find out “why we were removing—rather than demoting/labeling—claims that Covid is man made.” The company’s vice president in charge of content policy responded that “we were under pressure from the administration and others to do more” and continued with regret: “we shouldn’t have done that.”

The First Amendment prohibits the government from “abridging the freedom of speech.” Supreme Court doctrine makes clear that government can’t constitutionally evade the amendment by working through private companies. The newly released documents paint a clear picture of an administration running roughshod over these protections.

The Fifth U.S. Circuit Court of Appeals is poised to reconsider the injunction against the government in Missouri v. Biden early next month. The government’s case relies to a significant degree on the claim that it isn’t clear the government caused the platforms’ censorship. And the Sixth Circuit will soon be re-evaluating the denial of discovery in a similar case, Changizi v. HHS.

The latest revelations underscore the need for the injunction in Missouri and for discovery, not dismissal, in Changizi. If the appellate courts fail to recognize the spurious nature of the government’s position, the First Amendment might as well be a dead letter.

More generally, the nation needs to come to terms with the reality and scale of the assault on free speech. Our government has established a vast system of censorship. By keeping it largely secret, it has been able to exert unconstitutional control over medical, scientific and political speech, suppressing debate over questions of great public importance. This is a shocking constitutional violation. All of us, not only the courts, need to recognize what is at stake.





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