The explosive growth of the federal government over the past three generations has raised the possibility that its agencies, staffed by unelected bureaucrats, may exercise power over the citizenry in ways that trample constitutionally protected civil rights, especially the rights of dissent and free speech. In an executive order issued shortly after he began his second term as president, Donald Trump proclaimed that

Under the guise of combating “misinformation,” “disinformation” and “malinformation,” the Federal Government [under Joe Biden] infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the Government’s preferred narrative about significant matters of public debate.

On Monday, in an extraordinary consent decree agreed to by the Department of Justice, the states of Missouri and Louisiana, and three private plaintiffs (including Jim Hoft of the conservative Gateway Pundit website), it was noted that plaintiffs had asserted that “federal government Defendants unlawfully pressured, coerced, induced, and encouraged major social media platforms to censor their posts about Covid-19, the Hunter Biden laptop report, and the 2020 Presidential election.” It was further observed that “Plaintiffs uncovered evidence of what they characterize as a coordinated censorship operation emanating from the highest levels of government.”

That censorship operation extended to postings on Facebook, Instagram, Twitter or X, LinkedIn, and YouTube. In the consent decree, the named governmental defendants, the Surgeon General, the Centers for Disease Control and Prevention (CDC), and the Cybersecurity and Infrastructure Security Agency (CISA), in effect, agreed to

take no actions, formal or informal, directly or indirectly—except as authorized by the Constitution, statute, judicial order, or regulation—to threaten Social-Media Companies with some form of punishment (i.e. an adverse legal, regulatory, or economic government sanction) unless they remove, delete, suppress, or reduce, including through altering their algorithms, posted social media content containing protected free speech.

In addition, the defendants agreed not to “unilaterally direct or veto social media content moderation decisions of [the five named] Social Media Companies.”

The consent decree is a truly superb manifestation of the lawyers’ art, and while it is something less than a complete admission of unconstitutional and Orwellian misconduct, the implications are clear. The case, initially filed in 2022, previously wended its way all the way to the Supreme Court, which, in 2024, failed to decide it on the merits, and sidestepped any real judgments, by declaring simply that the plaintiffs lacked the standing they needed to secure a preliminary injunction (there was a powerful dissent on that point filed by Justice Alito, joined by Justices Thomas and Gorsuch).

The consent decree, which is a proposed final settlement of this long-running case, strongly suggests governmental wrongdoing, and it specifically permits plaintiffs to make motions to enforce the decree by asking the district court to order “the removal or retraction of any statements issued in violation [of the decree] and declaring those statements to be null and void and of no effect.” Perhaps of most significance, the consent decree provided that

Defendants agree not to contest that Plaintiffs are prevailing parties for purposes of 28 U.S.C. Section 2412(d), a federal statute providing winning parties with the right to recover attorneys’ fees. The Consent Decree must still be approved by the presiding federal District Court judge, but that should be forthcoming.

Two of the private parties involved in the suit were represented by a public-interest law firm founded by Columbia Law School’s distinguished legal and constitutional historian, Philip Hamburger, who has previously published a book arguing that our current administrative state is unconstitutional. Acknowledging the consent decree, Hamburger observed that “The Federal government’s social media censorship was the most massive suppression of speech in the nation’s history, it was profoundly important to resist it.”

Plaintiff Jim Hoft wrote at Gateway Pundit, “Some of the terms of the ‘consent decree’ are confidential, such as the amount of money that the government is required to pay Jim Hoft and other plaintiffs in fees and damages, but the essential text says that the Biden censorship complex has been stopped in its tracks.” Missouri’s former attorney general, who had originally brought the case, Senator Eric Schmitt, declared that “This is the first real, operational restraint on the federal censorship machine. It locks in the First Amendment principle we fought for: modern technology doesn’t erase your rights, and government labels don’t strip speech of protection. The deep state just got checked.”

Missouri’s current attorney general, Catherine L. Hanaway, stated that “Missouri will not allow politicians to police speech. This consent decree finally ends the biggest violation of the First Amendment in our nation’s history.”

Missouri v. Biden is not exactly on the level of Marbury v. Madison or Brown v. Board of Education in terms of its jurisprudential significance, but it is a powerful, albeit mostly symbolic, reaffirmation that our federal government ought to be limited, and that those limits are enforced by the actions of the states and, in this case, by the efforts of a gifted legal scholar.