In July, the US Supreme Court addressed the issue, sort of, in Murthy v. Missouri. Contorting itself to avoid ruling outright that there was no collusion between the federal government and social media and no coercion impacted posting standards., the decision (written by Conservative Justice Amy Coney Barrett) was couched as a lack of standing, meaning the plaintiffs in that case weren’t actually harmed. (Although backhandedly, the Court did articulate that there was no collusion, coercion, or First Amendment censorship).
Last month, the Ninth Circuit ruled on the same issue: did the federal government coerce or pressure Facebook to stop publication of anti-vax or other COVID misinformation? This time, the plaintiffs RFK’s Children’s Health Defense (CHD) claimed they were directly harmed by the “censorship,” even seeking monetary damages in compensation along with an injunction with no room to wiggle out on a technicality like standing. And the Court did not wiggle.
Finding that Meta, Facebook’s owner, was a purely private company, the decision, written by a Trump appointee, held that Meta had its own First Amendment right not to publish material it found distasteful or disagreed with, and that CHD had no right to sue – for anything, given there was no proof of willful participation in a joint activity with the federal government, nor indication of government coercion. Just because Meta’s position agreed with the federal government, ruled the Court, is no basis to infer collusion.
The Court’s characterization of CHD:
“Children’s Health Defense [said the court] …. publishes articles and opinion pieces … often describ[ing] purported links between vaccinations and various illnesses, … [and] claim[ing] …that “[u]nvaccinated kids are healthier” than their vaccinated counterparts. Sometimes, CHD posts messages from its founder, Robert F. Kennedy, Jr., in which he criticizes …. Bill Gates and …[his] efforts to encourage vaccinations.”
It’s clear Meta monkeyed with CHD’s postings, including placing warning labels on their posts, alerting readers that, in Meta’s view, CHD information was not accurate, rejecting ads, and making content less prominent, as early as 2019. Things then got worse: changes were made to the functionality and appearance of the CHD Facebook page, and a banner was placed atop the page proclaiming:
“This page posts about vaccines. When it comes to health, everyone wants reliable, up-to-date information. The Centers for Disease Control (CDC) has information that can help answer questions you may have about vaccines. Go to CDC.gov.” - Meta
Meta then began flagging CHD posts as containing outright factual inaccuracies based on research conducted by two independent research organizations. [1] CHD posts appeared under a grey overlay informing readers that “the post has been labeled false and refers them to a link so that they can “See Why, …independent fact-checkers have determined that the information shared in the post is factually inaccurate.” While the flagged post remained accessible, it was less prominent.
It got worse when Meta determined a post violated Facebook’s Community Standards, it removed the post entirely. Repeat offenses resulted in deactivating the “donate” button on CHD’s page, which had generated $40,000 in contributions. Meta also prohibited CHD, Kennedy, and a related agency from purchasing advertisements on Facebook because “CHD had repeatedly posted content that has been disputed by third-party fact-checkers [for] promoting false content.”
Meta then went on to update its Facebook policies to prohibit users from sharing “any claims that COVID-19 vaccines are not effective in preventing COVID-19… linking the website to the CDC and other leading health organizations for information on the pandemic…. Meta … began displaying messages to CHD’s followers encouraging them to unsubscribe …..” It referred CHD’s visitors to the WHO for facts about COVID-19. Finally, Meta allegedly disabled a dispute page where CHD contested Meta’s decisions.
In August 2022, Meta removed the group's accounts from Facebook and Instagram. By then, CHD had sued Meta, its independent fact-checkers, and Mark Zuckerberg, claiming that the defendants were working in concert with, or under compulsion from, the federal government to censor CHD’s speech — violating their First Amendment rights and depriving CHD of property rights to fundraise on Facebook, in violation of the Fifth Amendment.
The Court said No-Go.
The decision held that CHD didn’t demonstrate that Facebook or Zuckerberg were federal actors, reminding us that the First Amendment only prohibits government abridgment of free speech and not private actions.
Upending Free Speech advocates who might feel such decisions trample their perceived right to say whatever, whenever, and wherever they want, the Court reminds us that Free Speech also protects private entities. Using newspapers as an example, the Court advises that these private entities have the right to choose which work and writers they want to publish, and that preserving the boundary between governmental and private action “protects a robust sphere of individual liberty.”
Synchronicity at Its Best
While Meta is a private corporation, the Court acknowledged exceptional circumstances where private parties can be “treated as a state actor for constitutional purposes.” However, the court rejected that claim here, as CHD had not alleged the required “facts supporting an inference that the government ‘is responsible for the specific conduct of which the plaintiff complains.”
CHD also asked the Court to infer a specific agreement among the Biden Administration, the CDC, and Meta, resulting in censorship. However, the alternative explanation, that Meta shared its view and acted according to its assessment (verified by independent fact-checkers), was considered equally valid by the Court. Further, the Court noted that the platforms have an independent incentive to provide accurate content and moderate content deemed inappropriate, concluding that just because Meta agreed with the government doesn’t provide the basis for an inference of collusion, coercion, or censorship.
“Meta evidently believes that vaccines are safe and effective and that their use should be encouraged. It does not lose the right to promote those views simply because they happen to be shared by the government." - Judge Eric Miller.
The court concluded hat synchronicity of views doesn’t prove that META was in cahoots with the government. Indeed, the Court finds the source of censoring CHD’s posts is Meta’s “own policy of censoring.”
CHD’s counsel Kim Mack Rosenberg objected, saying the First Amendment "seems hollow" when the only speech protected and heard "reinforces the prevailing narrative."
CHD also contended that Meta and the federal government agreed to a joint course of action that deprived CHD of its constitutional rights, and that Meta deprived CHD of these rights because the government pressured it to do so. But the Court said that generalized or vague allegations won’t cut it. Since there was no evidence that the government insinuated itself into an interdependence with Meta, the Court ruled no governmental action was involved.
While letters from two legislators were produced asking for transparency and urging concern, no specific threats of action were included, thereby eliminating that leg of CHD’s claim.
But then comes this CHD allegation: “Meta and Zuckerberg benefited from their $35 million contribution to the CDC Foundation [2], affording vaccine manufacturers millions of dollars of free advertising and reputational benefits accruing to the CDC from Zuckerberg and Meta’s activities.” Initially, CHD even claimed that Meta placed warning labels on CHD’s posts with an “intent to clear the field of CHD’s alternative point of view, thus keeping vaccine manufacturers in business so they would buy ads on Facebook and ensure that Zuckerberg obtained a return on his investments in vaccine technology.
Not surprisingly, CHD withdrew this allegation before the Court could nix it.
In sum, the Court ruled that “Meta evidently believes that vaccines are safe and effective and that their use should be encouraged. It does not lose the right to promote these views simply because they happen to be shared by the government.”
Wheels Within Wheels”
On August 27, 2024, Mark Zuckerberg testified before Congress that the White House did try to pressure Facebook saying senior officials pressured Facebook to “censor” some COVID-19 misinformation.
Huh? Why does this come out now?
Perhaps it hasn’t come to the fore previously because Facebook disagreed with governmental directives, so there would be no collusion, although the extent of the capitulation and/or pushback isn’t clear. It does seem Zuckerberg’s major regret is that he wasn’t outspoken enough about it, not that Meta capitulated.
Of course, there are agendas within agendas, and there may be a political agenda behind Zuckerberg’s remarks rather than true dissonance between CDC and Zuckerberg, whose wife, Priscilla Chan, is a pediatrician.
[1] The Poynter Institute and Science Feedback the two research outfits were both named as defendants.
[2] “The CDC Foundation is an independent nonprofit and the sole entity created by Congress to mobilize philanthropic and private-sector resources to support the Centers for Disease Control and Prevention’s (CDC) critical health protection work.”
