Leah Litman and Laurence H. Tribe write:

On July 4, federal Judge Terry A. Doughty in the Western District of Louisiana issued a preliminary injunction in Missouri v. Biden, a case that basically turns some elected Republicans’ fixation on social media censorship into legal reality. The impetus behind the case is the now thoroughly debunked conspiracy theory that the government is somehow strong-arming Big Tech into censoring conservative speech and speakers in violation of the First Amendment.

While there are, in theory, interesting questions about when and how the government can try to jawbone private entities to remove speech from their platforms, this decision doesn’t grapple with any of them. In fact from the 155-page opinion, it’s not even clear this case really raises those questions. Each step in the reasoning of the decision manages to be more outlandish than the last – from the idea that the plaintiffs have standing to the notion that the plaintiffs are entitled to an injunction at this stage of the case to the sweep of the injunction that the district court issued.

But the absurdity of different aspects of the decision in Missouri v. Biden should not obscure the bigger picture of what happened. Invoking the First Amendment, a single district court judge effectively issued a prior restraint on large swaths of speech, cutting short an essential dialogue between the government and social media companies about online speech and potentially lethal misinformation. Compounding that error, the district court crafted its injunction to apply to myriad high-ranking officials in the Biden administration, raising grave separation of powers concerns. And equally troubling is how the court’s order, which prevents the government from even speaking with tech companies about their content moderation policies, deals a huge blow to vital government efforts to harden U.S. democracy against threats of misinformation. [Continue reading…]