Side-stepping the Question of ‘Advice vs. Coercion’: Calling a Club – A Spade
Instead of ruling explicitly on the merits (i.e., that governmental actions did not constitute censorship), the majority opinion, written by Justice Amy Coney Barrett, held that the plaintiffs -- two states and five SM users – lacked standing (discussed here), a necessary predicate to bring this action. Even conservative jurists saw through the ploy, demonstrating that they, too, value protecting public health over permitting unfettered, dangerous First Amendment liberties and refused to hold that even continued government intercessions, recommendations, and advice – amounted to censorship. [1]
Determining “standing” (which is a preliminary issue) requires examining the nature and extent of governmental actions. The dissent dissects the nature of governmental activities twice, once under “standing” and again when addressing the merits of the claim. But the inquiry is the same: Did the government coerce social media into making their decisions – or did social media act on their own? That is the operative question, whether siloed under a discussion on standing or on the merits.
“To establish standing, the plaintiffs must demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek. Because no plaintiff has carried that burden, none has standing to seek a preliminary injunction.”
- Murthy v. Missouri, SCOTUS decision
In addition to demonstrating that they have suffered or are about to suffer actual harm, the plaintiffs must prove the harm is caused by, or in this case, traceable to, the defendant(s). The harm claimed here is censorship -- which allegedly necessitated the individual plaintiffs to self-censor. The question is, was that censorship directly and particularly traceable to the governmental agencies named?
“[I]t is a bedrock principle that a federal court cannot redress ‘injury that results from the independent action of some third party not before the court.’”
- Murthy v. Missouri, SCOTUS decision
Private entities (e.g., social media) can restrict access to their sites as they wish – they are not governed by the First Amendment. It’s when their actions are a direct and involuntary result of governmental actions that a claim of governmental action of censorship – and a legal right of action accrues. All the Free Speech addicts in the world can’t change that, even as they champion the right to say whatever, whenever, wherever one wants – no matter who gets harmed in the process [2].
A Rose by Any Other Name…: Ruling the Government Didn’t Censor Social Media
The majority danced around the basis for the opinion, isolating the requirement for standing as the predicate for rejecting the suit. However, either government actions confer this standing or they don’t. Deciding whether the government “censored” content or coerced SM’s decisions was, therefore integral to (if unstated in) the determination of standing. The dissent showed no similar reticence, starkly providing their opinion of what transpired rather than exercising the majority’s legal tap-dancing.
However, isolating what transpired isn’t enough –the impact on the SM operatives must also be assessed. That is, did SM feel coerced? Did the platform decision-makers act involuntarily because they were afraid of some real threats?
As one of us (Dr. Billauer) previously wrote: “Acknowledging the fuzzy, ‘nuanced,’ and difficult-to-distinguish line between coercion (forbidden) and persuasion (allowed), in order ‘to differentiate attempts to coerce’ from ‘attempts to convince’ courts focus on four, essentially psychological, factors”:
- the speaker’s “word choice and tone”
- whether the speech was perceived as a threat by the recipient
- the presence of regulatory authority, including whether it is reasonable to fear retaliation
- whether the speaker refers to “adverse consequences” (e.g., threat of punishment)
Indeed, there was much communication between federal officials and SM representatives throughout the height of COVID. To prevent the promulgation of misinformation dangerous to public health, the government evinced a clear interest in knowing what social media was doing, made recommendations, expressed concerns, and pointed to problems. Additionally, the platforms reached out for governmental advice and information, which was freely given. Behaving as good stewards of public health, the government furnished the benefit of their superior resources, expertise, and data. The dissent calls this intercession “demands” for information and responses, whereas the verb used in government e-mails was fundamentally different: They generally “asked” for information. As the majority writes,
“The CDC hosted meetings and sent reports to the platforms, alerting them to misinformation trends and flagging example posts. The platforms often asked the agency for fact checks on specific claims.” [emphasis added]
“Biden is censuring Free Speech -- Horrors!” Cried the Dissent
According to the dissent, the federal government, in the guise of the Surgeon General, White House representatives, and CDC officials, “coerced” social media sites, most pointedly Facebook, into removing, downgrading, or otherwise censoring the posts of the individual plaintiffs. Summarily rejecting the “right to information” claims of the states, the court focused on the individual plaintiffs, including Drs. Jay Bhattacharya, Martin Kulldorff, and Aaron Kheriaty, all of whom we note are widely regarded as holding insupportable, dangerous views at odds with those of the broader scientific community. As the majority writes,
“These plaintiffs are doctors who questioned the wisdom of then-prevailing COVID-19 policies, including lockdowns and mask and vaccine mandates, [claiming] they faced a ‘relentless covert campaign of social-media censorship.’ They refer to the platforms’ suppression of the Great Barrington Declaration, their coauthored report calling for an end to lockdowns.”
Like unruly children on a rampage, these parties smear the entire federal government with their censorship claims. The majority disagrees, holding that no evidence exists that governmental parties before the court were involved with these decisions, noting that each of the the individual doctors faced his first social-media restriction in 2020 before the White House and the CDC entered discussions with the relevant platforms.
Panic or Prudence?
The dissent continues its broad-brush attack, baldly suggesting, for example, that Facebook executives so greatly feared government punishment (in the form of levies of antitrust violations) and were such ninnies that they capitulated to demands for content-moderation (removal, downgrading, or deplatforming). (Notably, such supposed panic had not affected Facebook’s conduct in the past).
Another thought occurs to us: Perhaps it is possible – given the dangers to public health – that Social Media, on its own, decided to rein in misinformation. That possibility eluded the dissent. Indeed, their almost pathological need to blame the government (and ascribe to them nefarious, impermissible acts of censorship) taints their perceptions.
The conclusion of the majority, based on a record of 26,000 pages, is that Social Media began reining in COVID-related misinformation long before the federal government expressed any interest in the matter. As they write,
“Complicating the plaintiffs’ effort to demonstrate that each platform acted due to Government coercion, rather than its own judgment, is the fact that the platforms began to suppress the plaintiffs’ COVID-19 content before the defendants’ challenged communications. [emphasis added]
… In 2019, YouTube announced that it would ‘demonetize’ channels that promote anti-vaccine messages. In 2020, with the outbreak of COVID-19, the platformsannounced that they would enforce their policies against users who post false or misleading content about the pandemic. As early as January 2020, Facebook deleted posts it deemed false “regarding ‘cures,’ ‘treatments,’ and the effect of ‘physical distancing.’ Twitter and YouTube began applying their policies in March and May 2020, respectively. Throughout the pandemic, the platforms removed or reduced posts questioning the efficacy and safety of mask wearing and the COVID-19 vaccine, along with posts on related topics.
…For years, the platforms have targeted speech they judge to be false or misleading.”
If that isn’t enough to refute the dissent’s mischaracterizations, there’s more: In addition to proving traceability (that the acts of the feds directly caused censorship by SM), the plaintiffs must prove that the requested relief (i.e., injunction) will prevent future harm. The majority wasn’t persuaded:
“Without evidence of continued pressure…the platforms remain free to enforce, or not to enforce, their policies — even those tainted by initial governmental coercion. And the available evidence indicates that the platforms have continued to enforce their policies against COVID-19 misinformation even as the Federal Government has wound down its own pandemic response measures. Enjoining the Government defendants, therefore, is unlikely to affect the platforms’ content-moderation decisions.”
Balancing the “Harms”
The federal government certainly evinced concern about misinformation on social media likely to harm the populace, and they recommended actions the platforms could take. But when it came time to balance harms claimed by the plaintiffs (self-censoring) against alleged First Amendment censorship, the court held the plaintiffs to strict standards of proof. They demanded to show us precisely where and when the government did something that coerced SM to stop your ability to communicate. In a 26,000-page record, the plaintiffs couldn’t do that. And the majority refused to help them, ruling:
“Judges are not like pigs, hunting for truffles buried in the record.”
[1] In other words, the court did this by indirection, ruling based on the procedural grounds of standing, which they were skittish about doing explicitly, holding that the government’s actions did not amount to censorship.
[2] Famously, the Supreme Court has prevented free speech from causing imminent harm, like shouting fire in a crowded theater.
Dr. Billauer, JD MA (Occ. Health) Ph.D. is Professor of Law and Bioethics in the International Program in Bioethics of the University of Porto and Research Professor of Scientific Statecraft at the Institute of World Politics in Washington DC.
Henry I. Miller, a physician and molecular biologist, is the Glenn Swogger Distinguished Fellow at the American Council on Science and Health. He was the founding director of the FDA's Office of Biotechnology. Find Henry on X @HenryIMiller
