Ferrer Censorship Lawsuit Heading to Final Arguments

Can the government block public speech?

In theory, no, absolutely, of course not.  There’s this thing called the Frist Amendment that makes that abundantly clear.

In practice, though, agencies across the nation have clearly been doing so for some time – case in point, Barbara Ferrer’s Los Angeles County Department of Public Health.

At the heart of the matter is the lawsuit filed by the Alliance of Los Angeles County Parents saying that Ferrer’s decision to shut off public comments on the department’s social media sites and her communications’ director pushing then-Twitter to shut down an account critical of her and the department was a clear violation of the rights of the public to discuss issues and – heaven forfend! – actually disagree with the government.

The decision to shut off comments came in July, 2022, around the time the department was considering re-imposing a countywide mask mandate.  News of that possibility infuriated members of the public who let Ferrer and her department know (though comments, emails, and such) that they were not supportive of the idea.

The county said it shut off public comments on its social media sites to both stop misinformation and because the comments “had become vitriolic all around.”

Testimony in the case was taken in October – during which Ferrer undermined her own case by saying “I think misinformation to me and misinformation to you would – it’s completely possible that they would be two separate things” – and final briefs were submitted last week.  Closing oral arguments are scheduled for December 1.

In its final brief to the court, the County re-iterated the arguments it had made before: a government agency is allowed to close comments at any time for any reason and that, as to the allegation Ferrer’s PR chief Brett Morrow used his DC political connections to get Twitter (X) to shut down an critical account, that Morrow merely reached out like anyone else could to Twitter to express concern about a potential “terms of service” violation.

“LACDPH’s (county public health) communication to Twitter about the Alt Account was not improper. LACDPH did not coerce Twitter into suspending that account. LACDPH, which has no authority over Twitter and did not refer to any adverse consequences, communicated politely and Twitter responded in the ordinary course,” the county argues.  “Twitter, not LACDPH, suspended the Alt Account because Twitter determined that the Alt Account violated Twitter’s own policies and Alliance did not prove otherwise at trial.  Thus, LACDPH cannot be held liable for Twitter’s suspension of the Alt Account.”

This claim is in large part based upon the idea that Morrow was just another average person with no special connections and no ability to potentially impinge upon Twitter.  That, however, does not appear to be case.

In fact, Morrow got help dealing with the Twitter banning effort from Patrick Boland, at the time a staffer for Rep. Adam Schiff (D-Burbank). Boland is now with Schiff’s senatorial campaign, but like Schiff, is no stranger to speech repression attempts. Schiff famously asked Twitter to ban a number of critics, including Paul Sperry of RealClearInvestigations. Sperry was in fact briefly barred from Twitter, but he stated in a Tweet that Boland also simultaneously threatened his employer regarding his work “exposing Schiff’s impeachment whistleblower and his ties to Schiff’s staffer.”

The Schiff connection is important, because to meet the test of government coercion the “presence of authority, which includes whether it is reasonable to fear retaliation” through increased government scrutiny, regulation, etc. must exist.  The county argues that it clearly had no power over Twitter; while that may be true, Morrow going through Schiff’s office to get help shutting down the account clearly has certain implications as Schiff’s House Intelligence Committee did have direct power over Twitter.

Morrow testified he had no knowledge that Schiff was involved in social media oversight – that assertion, shall we say, strains credulity at the very least.  In other words, the chances that Ferrer and/or county staff were unaware of Schiff’s power over Twitter at the time is simply impossible, so impossible that during his pre-trial deposition Morrow sang a different tune.

That, and why would anyone reach out to Schiff’s office for help crushing a Twitter account if they didn’t know Schiff wielded power in that area?  What would be the point?

David Loy of the First Amendment Coalition said that while he could not comment on the specifics of the case that the Twitter aspect raises the question of the difference between “persuasion” (permissible) and “coercion” (very not permissible.)

“Have they crossed the line?” is what the judge will determine, said Loy.

As to closing public comments, the department claims it did so across the board as required by current case law.  That, also, is not quite accurate: besides a number of occasions in which they were directly left open on certain posts – the county chalks that up to human error – the “reviews” section of the Facebook page was left open, leading to a number of “5 star” positive reviews being posted by advertisers for things like crypto currency and, more troublingly, herbal remedies claiming to cure ailments like HIV.  In fact, the review section is open to this day.

The LA case, says plaintiff’s attorney Julie Hamill, mirrors what has been occurring nationally of late – specifically as it relates to COVID and the pandemic – with multiple government agencies clearly censoring protected speech on-line and threatening social media companies to make sure “only the government narrative” is heard by the public.

“Since March 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country.  Executive officials across the country issued emergency decrees on a breathtaking scale,” Hamill wrote in her final brief.  “While issuing emergency health orders, Defendant Los Angeles County Department of Public Health (“LACDPH”) Director Barbara Ferrer, who oversees 10.3 million residents and a two-billion-dollar budget demonstrated hypersensitivity to criticism and casual disregard for constitutional rights.”

Nationally, the Missouri v. Biden case is the focus of the effort to stop unconstitutional government censorship enacted through agencies and officials pressuring social media companies to quash “misinformation” and use so-called independent groups like NewsGuard to bring the financial hammer down by pushing advertising boycotts of sites that do not play along, like X.

“Defendants here engaged in a similar censorship campaign, albeit on a much smaller scale. Like the federal agencies involved in Biden, Defendants justify their actions as ‘protecting the public from misinformation,’ but evidence shows ‘misinformation’ is subjective,” Hamill wrote.

“The true objective—establishing an orthodoxy on an issue of public concern by quashing dissident speech—is constitutionally impermissible. LACDPH wants to be the single source of truth.”

Hamill and the Alliance are not seeking monetary damages, but an injunction against the department from closing comments in the future and a declaration from the court that Ferrer and her department did in fact violate the first amendment, amongst other things  Such a ruling, Hamill said, would send a clear message to other government agencies that they, too, cannot engage in such practices.

“Loss of the constitutional right to free speech, for even minimal periods of time, unquestionably constitutes irreparable injury,” wrote Hamill, adding a line from a famous ruling on the right to free speech:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion…”