(The Washington Times)—If there’s one policy priority that the Biden administration will be remembered for — and that we should be glad to be putting behind us — it’s the censorship of dissenting speech online.
Within days of President Biden’s inauguration in 2021, the White House began privately pressuring social media companies to censor information and opinions that departed from the administration’s narrative on COVID-19.
In May 2021, the administration began doing this publicly, as then-White House press secretary Jen Psaki warned Facebook and other platforms of “legal consequences” — and raised the specter of antitrust charges — if they didn’t comply with demands to suppress what the White House called misinformation.
Throughout the administration’s first two years, Surgeon General Vivek Murthy successfully pressed Facebook, YouTube and Twitter to provide data on and intensify their efforts to suppress “misinformation.” The Centers for Disease Control and Prevention likewise told social media platforms what views on COVID-related topics should and shouldn’t be allowed and even held training sessions for the companies on what to censor.
So countless people found their posts deleted, or their accounts suspended or permanently banned, for stating officially disapproved views on topics such as masking children in schools, the risks and effectiveness of vaccines and other COVID-19 measures.
Finally, on July 4, 2023, a Louisiana federal judge declared that the administration had operated like “an Orwellian ‘Ministry of Truth’” and ordered it to end the censorship campaign. But by then, the administration was moving on from COVID-19, and the damage had been done. When Americans most urgently needed to speak freely about the most pressing political and medical issues of their lifetimes, they hadn’t been able to.
When that case arrived at the Supreme Court this past year, a majority of justices voted to lift the injunction — not because the court approved of the censorship, but because the plaintiffs who brought the case hadn’t presented direct evidence that the government pressured the platforms to censor themselves in particular. The court said the administration and the platforms had backed off their COVID-19 campaigns. So the plaintiffs’ case was too little, too late.
The administration didn’t give up on online censorship, however. It just moved on to its next target: TikTok. In April, Mr. Biden signed the Protecting Foreign Adversary Controlled Applications Act, which will effectively ban that platform as of Jan. 19, 2025.
Unlike its other efforts to control speech online, this one had bipartisan support in Congress. And the people in Congress who voted for it were open about their motive: They don’t like things people say there and might say there in the future. Sen. Mitt Romney, for example, said the bill got so much support in part because of “the number of mentions of Palestinians relative to other social media sites.”
In June, my nonprofit public interest law firm, the Liberty Justice Center, brought a First Amendment lawsuit challenging the ban on behalf of BASED Politics. This organization uses TikTok to bring ideas about free markets and individual liberty to a large Generation Z audience that it can’t reach anywhere else. We argue that the ban violates our client’s free-speech rights and those of the 170 million other Americans who use TikTok to share and hear speech.
In defending against our lawsuit, the administration acknowledges that it enacted the ban largely because the Chinese government might someday direct TikTok to manipulate its content in a way that could affect U.S. elections or undermine our government’s interests.
Our response: That’s a reason it’s unconstitutional, not a reason it’s justified. The First Amendment exists specifically to prevent the government from suppressing speech that it believes to be against its interests.
The government also makes an argument about protecting Americans’ data privacy and national security — but that argument is hardly credible, given that the law doesn’t touch other Chinese apps that don’t involve political expression and given that the current vice president opened a TikTok account even after the president signed the ban.
Besides, the new law isn’t just about TikTok. It also authorizes the president to ban any other social media platform that he determines is “controlled” by a foreign adversary (broadly defined) and a threat to national security.
Could anyone doubt that, when Mr. Biden approved this part of the law, he contemplated a future ban on Twitter/X, where information and ideas challenging official narratives have flourished since Elon Musk brought the platform? And can it be any coincidence that, in the second half of 2024, we began to see news stories suggesting, however dubiously, that Mr. Musk was somehow doing the bidding of Russian dictator Vladimir Putin?
Fortunately, President-elect Donald Trump presumably has no desire to shut down X and has even said that he opposes banning TikTok, for which he says he now has a “warm spot” in his heart because it might have helped him connect with young people and win their votes.
But the ban — which will require app stores to remove TikTok and U.S. servers to stop hosting it — is set to take effect the day before Mr. Trump’s inauguration, so he can do nothing about it. Besides, the free-speech rights of millions of Americans shouldn’t depend on a president’s restraint.
Fortunately, the Supreme Court agreed to hear our case challenging the law (together with similar challenges brought by TikTok and a group of other content creators) on Jan. 10. That means the court will have time before Jan. 19 to issue an order striking the ban down as an unprecedented and unjustifiable violation of Americans’ First Amendment rights.
That would not only be an essential victory for freedom of speech but a fitting way for the country to turn the page on the Biden censorship regime just before starting a new and — we hope — very different chapter on Jan. 20.
Jacob Huebert is president of the Liberty Justice Center and lead attorney for BASED Politics Inc. in its U.S. Supreme Court case challenging the federal TikTok ban.