Trump Administration Agrees to Consent Decree in Missouri v. Biden Social Media Case

From the Consent Decree filed today in Missouri v. Biden (W.D. La.):

As President Trump stated upon taking office on January 20, 2025, “[o]ver the last 4 years, the previous administration trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.” “Under the guise of combatting ‘misinformation,’ ‘disinformation,’ and ‘malinformation,’ the Federal Government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the Government’s preferred narrative about significant matters of public debate.” To prevent such censorship from recurring, Plaintiffs and Defendants agree to the terms set forth below, to be enforced upon approval by the Court, for a period of 10 years.

Individual Plaintiffs, Dr. Aaron Kheriaty, Ms. Jill Hines, and Mr. Jim Hoft, joined by the States of Missouri and Louisiana, alleged … that federal government Defendants unlawfully pressured, coerced, induced, and encouraged major social media platforms to censor their posts about Covid-19, the Hunter Biden laptop report, and the 2020 Presidential election….

The Parties … agree that government, politicians, media, academics, or anyone else applying labels such as “misinformation,” “disinformation,” or “malinformation” to speech does not render it constitutionally unprotected. See United States v. Alvarez (2012) (plurality op.) (“Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.”)….

[T]he Government [therefore] cannot take actions, formal or informal, directly or indirectly—except as authorized by law—to threaten Social-Media Companies with some form of punishment (i.e., an adverse legal, regulatory, or economic government sanction) unless they remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech….

The Surgeon General, the Centers for Disease Control and Prevention (CDC), the Cybersecurity and Infrastructure Security Agency (CISA) (“Enjoined Defendants”), and their employees and agents, shall take no actions, formal or informal, directly or indirectly—except as authorized by the Constitution, statute, judicial order, or regulation—to threaten Social-Media Companies with some form of punishment (i.e., an adverse legal, regulatory, or economic government sanction) unless they remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. Nor shall Enjoined Defendants unilaterally direct or veto social media content moderation decisions of Social Media Companies.

This prohibition does not extend to providing Social-Media Companies with information that the companies are free to use as they wish. Nor does it extend to statements by government officials that posts on Social Media Companies’ platforms are inaccurate, wrong, or contrary to the Administration’s views, unless those statements are otherwise coupled with a threat of punishment within the meaning of the above provision.

For the purposes of this provision, “Social Media Companies” shall include only Facebook, Instagram, Twitter or X, LinkedIn, and YouTube.

This prohibition as set out in Paragraphs 23 to 25 shall be limited to the Plaintiffs’ social-media content and does not extend to social-media content posted by non-parties. For purposes of this provision, Plaintiffs State of Missouri and State of Louisiana shall be construed only to include government officials or agencies of these states acting solely in their official capacities. Plaintiffs shall provide Enjoined Defendants with a list of their social media accounts to assist Enjoined Defendants in complying with this prohibition….

Seems to follow the requirements of NRA v. Vullo (2024), which bars the government from threatening legal or regulatory sanctions based on protected free speech. Query whether it in some measure goes beyond that as to the prohibition on “economic government sanction.”

I’m on the Board of Advisors for the New Civil Liberties Alliance, which represents plaintiffs Kheriaty and Hines, though I haven’t been involved with this litigation.

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