Feds' pressure on tech platforms to censor COVID 'misinformation' is unconstitutional, suit says

Surgeon General Vivek Murthy is using same statutory authority Supreme Court struck down for eviction moratorium, suit says.
Surgeon General Vivek Murthy

The government's sustained pressure on social media platforms to censor and report purported COVID-19 misinformation amounts to "state action" that violates the First Amendment, according to a lawsuit filed Friday on behalf of three Twitter users.

The New Civil Liberties Alliance (NCLA), a frequent litigant against COVID-related administrative action, is representing theoretical cognitive scientist Mark Changizi, lawyer Michael Senger and stay-at-home father Daniel Kotzin.

Twitter suspended Kotzin temporarily and Senger permanently within a week of Surgeon General Vivek Murthy's March 3 request for information (RFI) on the "impact and prevalence of health misinformation in the digital information environment during the COVID-19 pandemic," including how it affects "likelihood to vaccinate." 

The RFI not only encompasses search engines and social media but e-commerce platforms and instant messaging systems, "prompting technology companies to ramp up censorship for fear of adverse action against them," including regulation, the suit says.

Murthy is exceeding the statutory power of his office, which lets him quarantine individuals "reasonably believed" to be infected and communicable to prevent interstate transmission, NCLA claims. It's the same legal basis the Supreme Court ruled ineligible for the CDC's COVID eviction moratorium.

The Department of Health and Human Services, which includes Murthy's office, didn't respond to requests for comment from Just the News.

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The suit says the unconstitutional state action started with statements by the White House in May and HHS in July. 

Press Secretary Jen Psaki implied President Biden would take antitrust actions against tech platforms if they didn't censor vaccine misinformation, while Murthy issued an "advisory on building a healthy information environment." The phrasing resembles that used by Chinese state media.

Tech platforms will be held "accountable" for people who reject COVID vaccines and masking and use "unproven treatments," Murthy said. They must increase monitoring of purported misinformation, crack down on "super-spreaders" and "repeat offenders," and "amplify" information from "trusted and credible sources" and "subject matter experts."

Despite using the words "asking" and "proposing," Murthy and Psaki made clear at a press conference these were not suggestions, the suit claims. 

The press secretary said the White House was already reporting "the latest narratives dangerous to public health" to social media companies and even "flagging problematic posts for Facebook that spread disinformation." 

Biden later said platforms were "killing people" by not aggressively censoring misinformation, and USA Today reported the administration was considering "whether social media platforms are legally liable for misinformation spread on their platforms."

The lawsuit's timing may be fortuitous for its visibility. Kotzin's wife Jennifer Sey, a former Olympic gymnast and Levi's executive in the running for CEO until recently, was profiled Friday in The New York Times for her acrimonious exit from the company.

Sey became an ill fit inside Levi's for her strident social media advocacy for school reopening and criticism of masking children and CDC guidance on COVID. She faced criticism for her husband's tweets, according to the Times, quoting one: "Covid masks are obedience training and Covid vaccines are loyalty oaths."

The litigation is also something of a counterpart to independent journalist Alex Berenson's lawsuit against Twitter for his permanent suspension in August 2021.

Berenson had said COVID vaccines don't stop infection or transmission, which National Institute of Allergy and Infectious Diseases Director Anthony Fauci echoed in a New England Journal of Medicine "perspective" months later.

Berenson answered Twitter's motion to dismiss in mid-March, claiming the company "acted in concert with the government" following the July advisory. Also that month, Fauci said hearing the Conservative Political Action Conference cheer for Berenson's criticism of COVID vaccines was "horrifying."

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This was a sharp break from Twitter's previous practice of giving users "context" on specific tweets, Berenson said. An unnamed Twitter executive repeatedly assured him that Berenson's tweets would not be marked as misinformation and that his "name has never come up in discussions around these policies" as late as March 2021.

'Unprecedented in American history'

Senger, Changizi and Kotzin have all been suspended multiple times, sometimes for tweets that differ little from acknowledgments by federal officials and public health experts, the suit claims.

Among them: COVID vaccines don't stop transmission, natural immunity is more important than vaccination in ending the pandemic, and COVID mitigation measures don't work. The lawsuit cites a recent Johns Hopkins University study that found lockdown policies "have had little to no public health effects" while imposing "enormous economic and social costs."

Senger had the largest Twitter following of the three, more than 100,000, and was distinguished by his criticism of the Chinese Community Party. He authored the book "Snake Oil: How Xi Jinping Shut Down the World" and an associated tweet thread with several thousand retweets.

Regardless of Twitter's motivation, "this power to create a false consensus in political discourse ... is unprecedented in American history: it is a power that has historically only been held by authoritarian regimes," according to Senger's affidavit.

Changizi claims Twitter started "de-boosting" his tweets around May 2021, when Psaki floated the quid pro quo, based on a growing plunge he observed in user engagement. Even after his most recent reinstatement in December, Changizi's tweets are often classified as "age-restricted adult content."

Just the News confirmed that Twitter warns users Changizi's profile "may include potentially sensitive content," requiring them to consent to view it. It's the same warning applied to verified porn star Cherie DeVille, recently featured by journalist Matt Taibbi for her activism against censorship by payment processors.

Changizi and Kotzin claim in affidavits they have become much more careful in what they tweet so as not to suffer Senger's fate, particularly by speaking vaguely and not talking about alternative COVID treatments. 

By contrast, Twitter has actively promoted government-approved misinformation "exaggerating the efficacy of masks or the threat the virus poses to children" by CDC Director Rochelle Walensky and nutritionist Eric Feigl-Ding among others, the suit says.