VINDICATION: Major Consent Decree Blocks Social Media From Colluding With the Federal Government To Censor Americans

For those of us at the ACLJ who were representing Christian conservative and Turning Point USA founder Charlie Kirk at the U.S. Supreme Court in 2024 in a free speech case, together with conservative internet commentators David Harris Jr. and Robby Starbuck, one thing was unthinkable. We never believed that Charlie would be tragically assassinated while exercising the very First Amendment freedoms he so passionately believed in and that we were defending.

Now, the long-fought case against the Biden Administration’s censorship campaign against conservatives like Charlie and so many others has ended in victory. A federal court Consent Decree, entered on March 25, now prohibits similar government censorship over social media in the future. The Decree extends for at least the next 10 years.

The audacity of the Biden Administration’s attack on online speech was breathtaking. For years, it operated below the radar and took the shape of a virtual three-way censorship cartel. One big partner was the Executive branch. As soon as Joe Biden was elected President, both his White House and the unit within the Department of Homeland Security (DHS), the Cybersecurity and Infrastructure Security Agency (CISA), were tasked in early 2021 with attacking what they perceived as online “disinformation;” namely, information and opinions running counter to the Administration’s positions, not only on public protocols for Covid, but also on election policies and procedures as well as other issues.

The second partner in this censorship scheme was a group of social science researchers with a mission to stamp out everything they considered Mis-Dis-Mal-information (MDM) over the internet. They issued reports on ways to target viewpoints that hit the MDM tripwire over Big Tech social media platforms like Facebook, Twitter, and Google’s YouTube. Some of those same academic researchers had previously worked in those same Big Tech companies, but by 2021 they were working closely within the federal CISA unit. Those researchers and their colleagues published a report titled The Long Fuse that targeted online “repeat spreaders” of supposedly dangerous and misleading MDM content. The report provided ammunition for the Biden Administration’s anti-free speech crusade. But for our clients, it became very personal. The Long Fuse specifically targeted Charlie, David, and Robby by name as “repeat spreaders” of disinformation. Their offense? Merely sharing online reports, many times from legitimate news sources, about possible election improprieties, something the report labeled as dangerous for fear of “sowing distrust” in things like mail-in ballots. 

Which leads us to the third party in the censorship cartel – the Big Tech digital platforms themselves, that, in many cases, bowed to the pressure from the Biden White House to censor U.S. citizens. Those tech companies were also peppered with “tickets” from academic researchers who had created a special “switchboard” portal so they and the CISA could lodge MDM complaints directly with the social media platforms about specific social media accounts they wanted targeted.

The result? All three of our clients, along with many other Americans, were having their posts and videos blocked, downranked, or had their reach on social media platforms obliterated, particularly in the lead-up to and through the 2022 midterm elections. When this massive free speech violation finally became public, the states of Missouri and Louisiana and several individual plaintiffs sued the Biden Administration. The lower courts granted a preliminary injunction against the Biden scheme, but it was appealed to the U.S. Supreme Court, which granted review.

We filed our ACLJ amicus (“friend of the court”) brief with the Supreme Court on behalf of Charlie Kirk, David Harris, Jr., and Robby Starbuck, in support of the two states and the individual plaintiffs.

In the brief we argued:

The Government did not simply inform the [social media] platforms, it utilized them as tools for control of online citizen dissent, thus violating the First Amendment. The Government covertly used mammoth companies to do what the Government could not do directly or openly.

But when the Supreme Court issued its opinion from a divided Court, it did not rule on the merits of the First Amendment issue. Instead, it held that those specific plaintiffs had not adequately proven a sufficient factual basis for their standing to bring their lawsuit, and remanded the case back to the lower court for further proceedings to resolve that factual issue.

In our amicus brief to the Supreme Court, we ended with this warning: “We cannot predict all, or even most, of the future abuses to constitutional governance if this [censorship] campaign continues. But past conduct is a good teacher. Unless enjoined, it will certainly continue.”

The ACLJ views the recent Consent Decree from the federal court below as a good start toward preventing future government suppression of legitimate citizen voices over the internet. We hope going forward that we can honor Charlie's memory by preserving the free speech rights he fought for.