Courts find no government coercion of Big Tech to censor COVID 'misinformation'

Appeals court ruling against "bias response team" may help plaintiffs.

Updated: May 8, 2022 - 10:31pm

Social media users alleged that federal authorities used an old gangster tactic to compel Twitter and Facebook to censor purported COVID-19 misinformation: "Nice place you've got here, be a shame if something happened to it."

Federal judges in Ohio and California didn't buy those arguments, dismissing both First Amendment cases Thursday for lack of legal standing. Both claimed Facebook and Twitter might have punished the plaintiffs anyway under their own terms of service.

"The 1st amendment is a dead letter," Stanford University medical professor Jay Bhattacharya, also a target of censorship for his anti-lockdown Great Barrington Declaration, tweeted in response to the rulings.

"The judges are looking at this very technically," faulting the absence of direct orders to censor, New Civil Liberties Alliance lawyer Jenin Younes, counsel in the Ohio case, told Just the News. 

She believes her three clients have better chances in the 6th U.S. Circuit Court of Appeals, pointing to its 2019 ruling against the University of Michigan, which both the court and feds ignored.

The 6th Circuit let a First Amendment group represent students challenging the university's "bias response team," agreeing it imposed an "objective chill" on their speech regardless of whether it had "actual power to punish" them. The student-run Harvard Law Review blasted the ruling at the time for a "lax view of standing" that "seemingly dispensed with the requirement that a plaintiff show actual injury.

The setbacks may take a backseat to a broader lawsuit filed Thursday. The attorneys general of Missouri and Louisiana accused the Biden administration of "colluding" with Big Tech to censor information about the Hunter Biden laptop story, origins of COVID and security of voting via mail during the pandemic.

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Justin Hart, identified by MIT researchers as an "anchor" for data-driven mask skepticism on Twitter, sued Facebook, Twitter, President Biden, U.S. Surgeon General Vivek Murthy and federal offices last summer in California, alleging "state action" against his posts.

Murthy and White House Press Secretary Jen Psaki publicly disclosed "within days" of Hart's suspensions from Facebook and Twitter that the feds were pressuring social media to remove "misinformation super-spreaders" and that White House "senior staff" were directly contacting the companies.

Theoretical cognitive scientist Mark Changizi, lawyer Michael Senger and stay-at-home father Daniel Kotzin sued federal entities in Ohio in March, also citing Murthy's March 3 request for information (RFI) on health misinformation on social media.

U.S. District Judge Charles Breyer mocked Hart's allegations, bypassing oral argument and refusing to let him amend the suit unless Hart's ongoing public records fight turns up any revealing communications about him between the feds and social media companies.

"Hart does not come close to pleading state action" against the companies, whose "contemporary statements plausibly explain" his suspensions by reference to their policies against misinformation and misleading information, Breyer's order says.

Most of Facebook's conduct "occurred long before the administration made any statements at all," the judge said. "Mysteriously, Hart believes" the feds and Facebook took "joint action" months before they were allegedly talking, and "[e]ven more mysteriously" that this started before Biden and Murthy took office.

Breyer dismissed "Psaki’s use of a present tense verb" as evidence of prior discussions with Big Tech. Federal statements are "far too vague and precatory to suggest joint action," he said, noting that, for example, Murthy's 22-page July advisory is, "well, advisory." 

There's no evidence the feds even knew about "his existence," but even if they talked about Hart's posts with the companies, "[o]ne party supplying information to another party does not amount to joint action," the judge wrote. 

Biden's accusations that social media was "killing people" by not removing misinformation, against the backdrop of removing Section 230 immunity for websites, is not "remotely close to coercion," Breyer found.

U.S. District Judge Edmund Sargus in Ohio repeatedly disputed that "the timing of Twitter's actions gives away the game," as alleged by Changizi, Senger and Kotzin against the Department of Health and Human Services (HHS), Secretary Xavier Becerra and Murthy.

The judge also reminded them more than once to stick to allegations against the named defendants, rather than "non-party government officials" such as Psaki and Biden.

Twitter said in March 2020, "months before" Murthy's appointment, that it would censor COVID claims that don't jibe with "authoritative sources," Sargus' order says. 

"Why did Twitter establish — and progressively 'ramp up' the enforcement of— its COVID-19 Policy nearly one year before HHS allegedly 'commandeered' it?" the judge asked. "Plaintiffs do not explain. Nor, evidently, do they think it matters much."

Sargus cited a four-month gap between when Twitter started liberally suspending users and Murthy's July advisory that the plaintiffs claim "command[ed] technology platforms" to censor. They have yet to "establish a chronological chain of causation between" HHS actions and Twitter enforcement.

The plaintiffs also lack standing because Twitter is not required to answer the RFI in any particular way or at all, the judge said, so any private information disclosed would be from "Twitter's own doing." Even if Sargus issued an injunction against HHS, Twitter has a history of punishing the plaintiffs without HHS pressure, he said.

This situation is nothing like New York making "backchannel threats" to banks and insurers if they didn't end their relationships with the National Rifle Association, which another court deemed speech-chilling coercion, according to Sargus. No one was targeted, and the plaintiffs claim HHS doesn't have authority to punish Twitter.

The RFI, which followed Murthy's urging of social media companies to "do more," does not violate the Fourth Amendment because it is "no more coercive than any of the other one-sided views that government officials routinely embrace," the judge said. 

Younes told Just the News it was odd for the judge to exclude statements by non-HHS parties, because the agency is "working for the Biden administration."

The government has "stonewalled us every step of the way" on providing communications between Twitter and Murthy or others in his office, she said. If the judge had approved discovery and they found nothing, that would be different, but "I suspect that there are such communications."

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