Court To Bondi: Demanding Platforms Censor Speech And Bragging About It On Fox News Is, In Fact, A First Amendment Violation
For the better part of five years, we've been treated to an elaborate performance about the unprecedented constitutional horror of jawboning." Jim Jordan held hearings. Missouri's AG sued. The Supreme Court heard Murthy v. Missouri and concluded there wasn't enough evidence of government coercion to establish standing, let alone a First Amendment violation. None of that mattered to the MAGA ecosystem, of course, which continued to treat a handful of out-of-context sternly worded emails from Biden officials as the greatest censorship regime in American history.
Then the Trump administration came in, and a funny thing happened. The same people who'd built entire careers around the supposed horrors of government pressure on tech platforms suddenly had nothing to say when the Attorney General of the United States went on Fox News to brag - brag! - about demanding Apple remove an app and Facebook take down a group, both because their content was critical of ICE enforcement.
On Friday, Judge Jorge L. Alonso of the Northern District of Illinois granted a preliminary injunction against DOJ and DHS, finding that plaintiffs are likely to succeed on their claim that the government violated the First Amendment by coercing Facebook and Apple into suppressing protected speech. The ruling is short and direct in an almost embarrassingly straightforward way - largely because Pam Bondi and the rest of the government handed the plaintiffs most of their case on a silver platter, then held press conferences to make sure everyone knew about it.
We covered the DOJ's demands on Apple back in October and FIRE's subsequent lawsuit in February. As we explained then, the case seemed quite straightforward, and now the district court has agreed.
The plaintiffs are Kassandra Rosado, who ran a Facebook group called ICE Sightings - Chicagoland" with nearly 100,000 members, and Kreisau Group, which made a phone app called Eyes Up" for documenting ICE enforcement activity. Both services existed well before the government got involved. Both had been reviewed by the platforms and found compliant with their respective policies. In fact, as the ruling notes regarding the Facebook group:
Prior to October 14, out of thousands of posts and tens of thousands of comments made in the Chicagoland Facebook group, Facebook's moderators found and removed only five posts and comments that purportedly violated Facebook's guidelines. ... When Facebook removed those posts, Facebook advised Rosado that the posts were participant violations" that don't hurt your group" and that groups aren't penalized when members or visitors break the rules without admin approval."
Then Laura Loomer - a person whose entire public identity was built around suing Facebook and other tech companies for moderating her own posts, and who once argued that content moderation was literal RICO - tagged Pam Bondi and Kristi Noem in a social media post demanding they do something about the Chicagoland group. Because apparently the First Amendment only constrains Meta when Loomer herself is being moderated; when she wants other people silenced, she calls in the actual federal government.
Two days later, Facebook disabled the group. That same day, Bondi posted this to X:
Today following outreach from [the DOJ], Facebook removed a large group that was being used to dox and target [ICE] agents in Chicago.
Noem followed up with her own X post taking credit for the DOJ's leadership" in getting Facebook to act, adding the observation that:
Platforms like Facebook must be PROACTIVE in stopping the doxxing of our [ICE] law enforcement. ... We will prosecute those who dox our agents to the fullest extent of the law.
On the Apple side, Bondi went even further, telling Fox News Digital directly:
We reached out to Apple today demanding they remove the ICEBlock app from their App Store - and Apple did so.
A few days later, she added that we had Apple and Google take down the ICEBlock apps" and - in a sentence that should probably be framed and hung in every law school's First Amendment classroom - followed it with: We're not going to stop at just arresting the violent criminals we can see in the streets."
Apple promptly removed Eyes Up too, informing the developer that law enforcement" had provided information" indicating the app violated Apple's guideline against defamatory, discriminatory, or mean-spirited content" - the same guideline Apple had independently reviewed the app under just two months earlier, when it found no such problem.
The legal framework here is familiar territory for Techdirt readers. Bantam Books v. Sullivan from 1963 established that thinly veiled threats to institute criminal proceedings" against parties who don't come around to the government's preferred speech outcomes violate the First Amendment. 2024's NRA v. Vullo reaffirmed and sharpened that principle, holding that [g]overnment officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors." The test, per Vullo, is whether government conduct, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff's speech."
That's what was missing in the Murthy case - but was clearly present in Vullo. And here.
Judge Alonso applies this framework step-by-step. On causation - the element the Murthy plaintiffs famously failed on - he identifies three facts that, taken together, make it overwhelmingly likely the injuries trace to government coercion rather than independent platform judgment:
First, Facebook had previously reviewed the Chicagoland group, and Apple had previously reviewed Eyes Up. In both cases, Facebook and Apple had determined that the content met their requirements. Second, Facebook and Apple changed their positions and removed the content immediately after Defendants contacted them about it. And third, Defendants made public statements taking credit for the fact that Facebook and Apple had removed the content.
Unlike in Murthy, where it was all vague speculation disconnected from reality, the causal chain here is pretty clear, helped along by a Trump administration that simply can't resist bragging about suppressing the rights of Americans.
Bondi and Noem's inability to resist a Fox News hit really made this case super easy. In Murthy, the Supreme Court found that plaintiffs couldn't even establish the Biden administration had caused the content moderation decisions they were complaining about, because platforms had their own independent reasons for their policies and had often rejected government requests outright. Here, the government has publicly, repeatedly, and proudly announced that it caused the removals.
On the coercion analysis itself, Alonso walks through the Seventh Circuit's Backpage.com v. Dart framework, noting that government officials don't even need direct regulatory authority over the target to cross the line. What matters is the distinction between attempts to convince and attempts to coerce." And here, the court finds, Bondi and Noem demanded rather than requested, and made clear there would be consequences for non-compliance:
Bondi and Noem also intimated that Facebook and Apple may be subject to prosecution for failing to comply with Bondi and Noem's demands. For example, after stating that we had Apple and Google take down the ICEBlock apps," Bondi further stated: We're not going to stop at just arresting the violent criminals we can see in the streets." ... And in the same social media post where Noem wrote that [p]latforms like Facebook must be PROACTIVE in stopping the doxxing of our [ICE] law enforcement," she added: We will prosecute those who dox our agents to the fullest extent of the law." ... Although these statements may not be direct threats to prosecute Facebook and Apple, they are intimations of a threat. And thinly veiled threats such as these constitute sufficient evidence on which Plaintiffs are likely to succeed on their claim.
The quote from Bondi about not stopping at just arresting the violent criminals we can see in the streets," paired with her public announcement that she'd forced Apple's hand, is about as textbook a Bantam Books fact pattern as you're going to find. The Supreme Court's warning in 1963 was that [p]eople do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around." Sixty-three years later, here is the Attorney General of the United States describing the process of coming around, and taking credit for it.
Of course, as you know, Bondi was fired by Trump earlier this month for insufficient commitment to his vindictive fantasies, and Noem has also been replaced. Both are automatically substituted out in the litigation under Rule 25(d) for their successors, Todd Blanche and Markwayne Mullin. The people who orchestrated the censorship may be out of power, but it's not like their replacements are any less likely to violate the free expression rights of Americans. This injunction binds these replacement-level cabinet members all the same.
But still, in all of this, it's astounding that we've heard nothing from the vocal crew who insisted the Murthy case was the quintessential example of American government censorship. The same people who were trumpeting a faux settlement in that case just weeks ago seem to have zero to say about a court finding actual censorship here.
For years, the people who built entire media careers around the supposed Biden jawboning scandal insisted - against all available evidence - that private platforms making their own moderation decisions after receiving polite feedback from the government constituted the greatest assault on free speech in American history. They refused to accept the distinction between persuasion and coercion, dismissed every platform executive who explained that moderation decisions were independent, and treated the Supreme Court's rejection of their standing arguments in Murthy as a miscarriage of justice rather than an accurate assessment of what the evidence actually showed.
And now, confronted with an actual, documented, judicially confirmed case of government coercion - where the Attorney General literally said the word demanding" in a Fox News interview, where the Secretary of Homeland Security publicly warned platforms they must be PROACTIVE" and threatened prosecution, where a federal judge has granted a preliminary injunction applying the exact legal framework they claimed to care about - the response from the usual suspects has been... crickets.
Turns out they didn't actually care about jawboning as a principle - they just cared which way the pressure was pointed. They didn't want government neutrality about platform moderation decisions; they wanted government pressure in their preferred direction. The First Amendment, in their functional view, prohibits making life difficult for people they like and permits - encourages, even - making life difficult for people they don't. And sure, they'll claim this censorship was justified because it was necessary" to protect ICE from harm." But that's not how the First Amendment works, it's wrong as a principle, and - perhaps most importantly - that same logic would have applied to the censorship they (falsely) claimed was happening under Biden regarding COVID information, which was also, in theory, done to protect American lives.
Alonso's ruling is a reminder that the First Amendment doesn't care about your political team. Bantam Books and Vullo don't have political valences. Bantam Books was an 8-1 decision. Vullo was 9-0. Coercing platforms to remove speech the government disfavors is unconstitutional regardless of which administration is doing the coercing and regardless of whether the speech in question is popular with any particular political faction. But you have to actually show the coercion! A court applying the law honestly to the facts here couldn't reach any other conclusion, because Bondi and Noem made the facts unmissable. They said the quiet part loud, on camera, to Fox News, in tweets they pinned to their profiles.
The supposedly monumental Missouri case had none of that - which is exactly why the Supreme Court rejected it. And yet it's still held up by many as some sort of evidence of censorship, by the very same people who seem to have zero interest in this far more direct and documented example.
The takeaway is simple: if you spent five years insisting that jawboning is a grave constitutional offense, you don't get to cheer when your team does the exact same thing. Or, well - you can, but the rest of us are going to notice. And maybe say something about it.
Everyone else gets to file this ruling away for the next time someone starts ranting about Murthy. This is what the law actually looks like when the facts are there. And the facts, in this case, were provided by the government itself, free of charge, on national television.