Washington Examiner: Victory for free speech in Louisiana

Democratic Party efforts to use the power of the federal government to silence conservative ideas suffered a resounding and well-deserved defeat on July 4. A federal judge in Louisiana granted an injunction forbidding an array of federal government law enforcement and health officials from coordinating with social media platforms to suppress conservative content.

Good.

The lawsuit, filed by the attorneys general of Louisiana and Missouri and joined by scientists and activists, alleges that federal government officials coordinated with employees at social media companies such as Twitter, Facebook, and Google to identify supposedly harmful content and then either limit its reach or delete it entirely.

Most of the content silenced by the tech companies involved skepticism about the risks and efficacies of coronavirus vaccines, but the censorship did not end there.

Items flagged for suppression included: stories about Hunter Biden’s laptop computer, stories suggesting COVID-19 originated in a Wuhan lab, negative stories about the economy, and stories critical or merely unfavorable toward President Joe Biden.

Reacting to the judge’s decision, former President Barack Obama’s senior adviser David Axelrod tweeted, “Good news for social media arsonists: A judge says you CAN shout fire in a virtual crowded theater.”

However witty Axelrod thought he was, his tweet demonstrates how necessary and right the judge’s decision was.

When Justice Oliver Wendell Holmes wrote the famous line, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic,” he was upholding the conviction of a man who was charged with violating the Espionage Act for passing out flyers opposing the draft in World War I.

Do Axelrod and the Democratic Party want to recriminalize protests against our government’s foreign policy decisions?

That case, Schenck v. United States, was later overturned in 1969 by Brandenburg v. Ohio.

Where Schenck held that a man could be punished because protesting the draft was a “clear and present danger,” Brandenburg held that the state of Ohio could not stop the Ku Klux Klan from holding a rally because the event was unlikely to produce “imminent lawless action.” It is Brandenburg’s “imminent lawless action” test that is still good law today, and it clearly guides the judge’s injunctive order.

Under the injunction, communications between the federal government and social media companies are allowed — you would not know this from much dishonest reporting — when they involve criminal activities, national security threats, or posts designed to mislead voters about voting procedures, such as when Election Day is scheduled.

These are all examples of imminent lawless action.

But as soon as the federal government starts straying from this narrow list, as soon as it starts policing ideas such as where a virus originated or the efficacy of government policies, it has overstepped its bounds and unnecessarily censored protected speech.

Social media platforms are new and powerful tools that can and do affect human behavior, but the power they possess is all the more reason courts should err on the side of more free speech and not more government censorship.