LANSING, Mich. (Michigan News Source) – Prominent George Washington University law professor Johnathan Turley recently came out with an end-of-the-year conclusive list of 23 Democrat-led “anti-free speech” states for 2023.

Turley says in his press release on his website, “For years, we have discussed the alarming shift in the Democratic Party on free speech with candidates running on pledges to censor opposing views and politicians supporting blacklisting and censorship on social media.”

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He continues, “Many citizens oppose such efforts to restrict their rights under the First Amendment, but are unaware of the work of their representatives to limit free speech. Now, a filing in the Supreme Court supporting censorship efforts by the Biden Administration has supplied a handy list of the anti-free speech states for citizens.”

Those 23 states include Michigan.

Why is Michigan on the list?

In the case of Murthy v. Missouri (formerly Missouri v. Biden), Michigan Democratic Attorney General Dana Nessel has signed on to an amicus brief in support of continuing censorship coordination between the government and social media companies.

What is the lawsuit about?

The original lawsuit, Missouri v. Biden, was filed in 2022 by the attorneys general of Louisiana and Missouri, and several individuals including epidemiologists and physicians, against the Biden administration for unconstitutionally coordinating with social media companies to censor conservative viewpoints.

The plaintiffs said the government “coerced, threatened, and pressured social-media platforms to censor” them in violation of the First Amendment. They go on to explain in court documents that their social media posts which criticized vaccine mandates, mask mandates and other COVID-19 policies were flagged, censored and deleted.

The Biden administration says they only had content flagged or deleted to “mitigate the hazards of online misinformation” and to combat “harmful content.” They also said that such content violated the social media platforms’ own policies.

Why the case is important.

In the complaint by the plaintiffs, the filing says, “In 1783, George Washington warned that if ‘the Freedom of Speech may be taken away,’ then ‘dumb and silent we may be led, like sheep, to the Slaughter.’”

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It goes on to say, “The freedom of speech in the United States now faces one of its greatest assaults by federal government officials in the Nation’s history.”

According to the Scotus Blog, In July of 2023, a U.S. District judge, Judge Terry Doughty, agreed with the plaintiffs saying that the federal government had “apparently engaged in a massive effort to suppress disfavored conservative speech.” His order limited communications between the White House and several other government agencies with social media platforms about virtually all content.

How did the censorship occur?

According to the Mackinac Center for Public Policy, they explain, “The district court said the federal government ‘used meetings, emails, phone calls, follow-up meetings, and the power of the government to pressure social-media platforms to change their policies and to suppress free speech.’”

How the case has evolved.

 The Biden administration appealed to the U.S. Court of Appeals for the 5th Circuit and they largely upheld Doughty’s order and called the government’s conduct a “coordinated campaign” “orchestrated by federal officials that jeopardized a fundamental aspect of American life.” The new order, however, limited Doughty’s order to pertain only to the White House, the Surgeon General, the CDC, and the FBI.

The Biden administration went to the Supreme Court in September of 2023 to ask the justices to put Doughty’s order on hold. The U.S. Solicitor General Elizabeth Prelogar told the justices that the order would put “unprecedented limits on the ability of the President’s closest aides to use the bully pulpit to address matters of public concern, on the FBI’s ability to address threats to the Nation’s security, and on the CDC’s ability to relay public-health information at platforms’ request.”

Government argues collaboration, not coercion.

Prelogar argued that the government didn’t coerce or threaten – instead they worked in “collaboration” with social media companies. The plaintiffs argued “the bully pulpit is not a pulpit to bully.”

The Scotus Blog says, “Justice Samuel Alito, who handles emergency appeals from the 5th Circuit, put the lower court’s order on hold temporarily to give the justices time to consider the Biden administration’s request.”

Meanwhile, the case was unfolding in the court of appeals. The plaintiffs wanted the court to reinstate the portion of Doughty’s order that applied to the State Dept. and the Cybersecurity and Infrastructure Security Agency (CISA). The court of appeals granted the request in part on October 3rd extending the order only to the CISA.

On October 5th, 2023, the Biden administration urged the justices once again to put the Doughty opinion on hold and asked for the case to be fast-tracked for briefing and oral arguments on the merits.

Supreme Court decides to take the case.

The Supreme Court granted the Biden administration’s request to freeze the Doughty order as modified by the 5th Circuit until they hear the case, which will most likely occur in June of 2024.

Justices Alito, Thomas and Gorsuch dissented from the court’s decision to put the Doughty order on hold. Alito says it was done “without undertaking a full review of the record and without any explanation.” He also said the Biden administration had not shown that they would be permanently harmed if Doughty’s order remained in place.

Why are Michigan and other states involved in the case?

Michigan and 22 other Democrat-led states joined in what Turley calls an “ignoble effort in signing on to the brief of California Attorney General Rob Bonta.”

Turley goes on to say, “The brief lauds past efforts of these states to combat ‘harmful content’ on the Internet and to protect the public from ‘misleading information’ through partnerships with social media companies.”

In the brief, the 23 Democrat-led states argue, “Since the advent of social media, government and private companies have often shared information and engaged in dialogue about best practices in mitigating the spread of harmful content on social-media platforms.”

They contend that the Fifth Circuit’s decision “treats virtually any governmental communication aimed at persuading or helping social-media platforms to remove harmful content, protect vulnerable users, or address threats to public safety as inherently coercive and therefore unconstitutional.” They add it’s a “a result that cannot be reconciled with this Court’s long-standing precedents.”

States want to continue to communicate with social media companies about content.

The Amici States complain that the decision “effectively bars large swaths of the federal government from communicating – no matter how innocuously – with social media companies about content moderation.”

Furthermore, the brief claims that the Amici States have a “substantial interest in protecting their residents from the dangers to residents’ safety and health that the spread of harmful content on social-media platforms can sometimes pose.”

Democrats argue that they are not suppressing First Amendment rights.

The 23 Democrat-led states contend that what the government is doing “fully comports with the First Amendment” and they say the “Fifth Circuit has made a critical error; in purporting to protect First Amendment values, the Fifth Circuit has significantly restricted the federal government’s essential role in participating in the marketplace of ideas. This will impoverish, rather than protect, robust debate on matters of vital public importance.”

The Amici States explains that what the government is doing is “nonbinding guidance” and “information sharing” and that it doesn’t violate the 1st Amendment. They also say that if they were to be stopped, it would “deter state and local governments from advocating their own positions and would eliminate guidance and information that private industry would find useful – and may want to actively request.”

How will the Supreme Court interpret free speech guarantees?

The Mackinac Center for Public Policy says, “This is an unusual First Amendment case because the constitutional free speech guarantee applies to governments and government officials, but not to private businesses. Thus, the case centers on how social media companies may have been coerced to block or censor the accounts of private citizens.”

The Mackinac Center declares, “Michigan is siding with the federal government in support of governmental powers to censor online content on hot-button policy subjects like the COVID–19 lockdowns. In practice, the line seems very blurry between “harmful content” and information that government officials decide is politically inconvenient.”

Michigan on the leading edge of supporting and implementing expansive censorship powers.

The Mackinac Center adds about the state’s support of censorship, “Michigan is now squarely on the side of expansive powers for governments to pressure social media companies into censoring what the government does not want the public to see or know.”

In addition to signing on to the amicus brief, Michigan has been accused of censorship in the past during the COVID-19 pandemic.

The Mackinac Center for Public Policy reminds everyone that “Michigan leaders also took an unprecedented anti-free speech position in a 2020 state executive order (now rescinded) that required retail stores to ‘refrain from the advertising or promotion of goods that are not groceries, medical supplies, or items that are necessary to maintain the safety, sanitation, and basic operation of residences.’”