Dana Mathewson

It has been widely reported that the Biden administration has leaned on tech companies, including social media companies, to censor content with which the administration disagrees. This is not a secret. On the contrary, the administration’s spokespeople have bragged about it, and Congressional Democrats have publicly applied pressure to tech employees, in committee hearings, to censor in accordance with the administration’s preferences.

The social media companies tirelessly tell us that they can engage in censorship because, as private entities, the First Amendment does not apply to them. That is true as far as it goes. However, if the government uses private parties to suppress dissenting opinions, the Constitution is violated.

A number of lawsuits have been brought by various plaintiffs to attack the unholy alliance between the Democratic Party and the social media companies, but so far they have failed, mostly on standing grounds. Which brings us to a lawsuit by the States of Missouri and Louisiana against public officials including, among others, Joe Biden, Anthony Fauci and the Department of Health and Human Services. The case is venued in federal court, in the Western District of Louisiana.

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Plaintiff states have moved for a preliminary injunction and for expedited discovery on issues relevant to their motion. The federal government asserted the usual defenses, but on Tuesday Judge Terry Doughty granted plaintiff states’ motion for expedited discovery. Judge Doughty considered at length and rejected the government’s standing arguments. He concluded his technical discussion with this question:

"If Missouri and Louisiana do not have standing under the facts alleged, when would anyone ever have standing to address these claims?"

The government’s answer, of course, is never. Its alleged violations of the First Amendment would continue forever, without ever being challenged in court.

Judge Doughty’s order granting expedited discovery is potentially seismic. The plaintiff states can serve document requests and interrogatories on the government agencies, as well as social media companies subject to Rule 45 subpoenas, "seeking the identity of federal officials who have been and are communicating with social-media platforms about disinformation, misinformation, malinformation, and/or any censorship or suppression of speech on social media, including the nature and content of those communications.” [Emphasis added.] The order sets forth a rapid timetable for resolution of any objections and disputes arising out of plaintiffs’ service of those discovery requests.

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