The Biden Administration’s Assault on Free Speech

Emails paint a picture of a White House running roughshod over First Amendment protections

By Philip Hamburger and Jenin Younes. Mr. Hamburger teaches at Columbia and is CEO of the New Civil Liberties Alliance, which represents plaintiffs in Missouri v. Biden and Changizi v. HHS. Ms. Younes led the litigation in those cases for NCLA and more recently served as senior special counsel on the Weaponization Subcommittee. Excerpts:

"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."

"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.”"

"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."

"Supreme Court doctrine makes clear that government can’t constitutionally evade the amendment by working through private companies."

"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."

"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."