On the day that he began his second term, President Donald Trump issued an executive order entitled “Restoring Freedom of Speech and Ending Federal Censorship.” It affirmed the First Amendment rights of speech and press and repudiated what it believed had been the Biden Administration’s inappropriate attempt to exert coercive pressures on social media companies “to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve,” most notably related to information regarding COVID-19.
Supreme Court had dismissed case
Despite this order, later in the year the U.S. Supreme Court decided in Murthy v. Missouri (2024) that Missouri and Louisiana and other parties had not established proper legal standing to challenge the Biden Administration’s earlier efforts.
On March 23, 2026, however, the states and other individual parties reached an agreement with the U.S. Department of Justice, entering into a consent decree permanently enjoining the federal government agencies in the case from coercing social media companies. The decree was signed by U.S. District Judge Terry A. Doughty of Louisiana and referenced Trump’s executive order and Biden administration officials who had boasted about their coercive efforts.
Consent Decree: Government cannot coerce social media to remove content it disagrees with
The consent decree specifically bars the U.S. Surgeon General, the Centers for Disease Control and Prevention, the Cybersecurity and Infrastructure Security Agency and their employees from threatening social media companies with some form of punishment unless they remove, delete, suppress or reduce certain content.
The decree observes that the First Amendment prohibits governmental censorship of freedoms of speech and press. The parties agreed “that modern technology does not alter the Government’s obligation to abide by the strictures of the First Amendment.”
Citing United States v. Alvarez (2012), the “stolen valor” case, the consent decree further recognizes that “government, politicians, media, academics, or anyone else applying labels such as ‘misinformation,’ ‘disinformation,’ or ‘malinformation’ to speech does not render it constitutionally unprotected.”
Recognizing that some false statements are inevitable in public debate, the consent decree specifies that “the Government cannot take actions, formal or informal, directly or indirectly—except as authorized by law—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.” The decrees also prevents defendants from unilaterally directing or vetoing “social media content moderation decisions of Social Media Companies.”
The decree does indicate that it “does not extend to providing Social-Media Companies with information that the companies are free to use as they wish. Nor does it extend to statements by government officials that posts on Social Media Companies’ platforms are inaccurate, wrong, or contrary to the Administration’s views, unless those statements are otherwise coupled with a threat of punishment.”
Potential effects of consent decree
Although the decree is specifically limited to “Facebook, Instagram, Twitter or X, LinkedIn, and YouTube,” the editorial board of the Washington Post has praised the agreement for setting “an example that future litigants can throw back in the government’s face when there are future rounds of bullying that infringe on constitutional rights.”
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.