By Brownstone Institute at Brownstone dot org.

On Tuesday, attorneys announced a "Consent Decree," which will put an end to the years-long litigation in Murthy v. Missouri (previously called Missouri v. Biden), which focused on government-induced social media censorship. While its proponents herald the settlement agreement as a victory for free speech, the details suggest that Leviathan has not lost this civilizational struggle. Its concessions are decorative, and the text implicitly suggests that the practices will largely continue.

The "victory" for free speech in this case is that the remaining defendants – the CDC, CISA, and the Surgeon General – agree not to "threaten Social-Media Companies with some form of punishment…unless they remove, delete, suppress, or reduce content" that contains "protected free speech." That is akin to a civilian signing an agreement not to steal his neighbor's car; it "prohibits" something that is already illegal under black-letter First Amendment law.

Free speech advocates, however, cannot even celebrate that as a "victory." The agreement not to bludgeon social media companies into imposing state censorship only lasts "for a period of 10 years," per the terms of the agreement. After that, the agreement implies that CISA can return to its practice of "switchboarding," which dictated which posts should be banned from social media.

Further, the "restriction" only applies to three government agencies; the settlement does not apply to similar assaults from any other government group (including DHS, the CIA, the FBI, or the White House).

Moreover, the only people who can enforce the terms are the five remaining plaintiffs, as the agreement is "enforceable only by the Parties." If government warhawks coerce platforms to ban critics of the Iran War, this "Decree" will have no effect.

The supposed triumphs lack substance. The government agencies agree that "modern technology does not alter the Government's obligation to abide by the strictures of the First Amendment" and that "misinformation" labels do not render speech constitutionally unprotected. Excellent. But that is nothing more than a repetition of well-established law.

Unfortunately, this was the predictable endpoint of the litigation following the Supreme Court's dereliction of duty in June 2024, when it concocted procedural excuses to evade the controversy of the indisputable evidence of the Biden White House's censorship apparatus. The history of the Action reveals that the Supreme Court forfeited a generational opportunity to protect American free speech.

July 2023: The District Court Unravels the Censorship Hegemon

On July 4, 2023, District Court Judge Terry Doughty granted a preliminary injunction barring large swaths of the US government from colluding with social media companies to censor "content containing protected free speech." He described the allegations, if true, as "arguably [] the most massive attack against free speech in United States' history."

The order included a 155-page memorandum recounting the Biden administration's wide-ranging assaults on free expression. Provided it survives future digital purges, historians will one day look to it as a guide to the authoritarian madness that overtook the republic under the guise of "public health." The vast conspiracy spanned nearly every federal entity, including the White House, the Department of Justice, the Centers for Disease Control and Prevention, and the Intelligence Community.

That was the high-water mark of this case's victory for freedom.

The Regime Fights Back

The regime would not let an injunction usurp its power. Censorship had been integral to its governing strategy since 2020's crackdown on Covid dissidents and the later election campaign, as Joe Biden anointed Antony Blinken Secretary of State in return for him arranging for the CIA to thwart the Hunter Biden laptop scandal. Once in office, the Biden administration had unprecedented censorship aspirations, inclu...