“We don’t want no censorship, we don’t need no censorship!” Kevin Nathaniel’s voice boomed from the podium in front of the Supreme Court as he, frontman of the Spirit Drummers, led the crowd in a series of sing-songy, reggae-inspired chants. His audience was small but excitable. Some wore Kennedy ’24 beanies and “Ivermectin saves lives” T-shirts. Others showed off signs reading “Fauci is the tyrant the founding fathers warned us about,” and “Freedom of speech includes views you don’t like,” and “Media literacy = censorship,” as they bopped along to the bongo drums.
Inside, the Supreme Court was gearing up to hear the oral arguments of Murthy v. Missouri, in which Missouri and Louisiana, as well as several individuals, claim that federal officials violated the First Amendment in their efforts to combat misinformation on social media. The parties contend that the Biden administration effectively coerced platforms into silencing the voices of American citizens, particularly those on the right who posted about the COVID-19 lab leak theory, pandemic lockdowns, vaccine side effects, election fraud, and the Hunter Biden laptop story. The plaintiffs have called it a “sprawling Censorship Enterprise.”
People live with different facts than their neighbors. One reason for this is social media algorithms, which use engagement features such as “like” buttons to feed users more of the content they seem to be interested in. Such a system can result in one person’s feed looking completely alien to another person. That we live in parallel universes is not news, but the dilemma it poses raises crucial questions about the responsibility of social media companies to track what is on their platforms and whether the government even has the right – or the responsibility – to counter what it deems misinformation, and when a line has been crossed into unconstitutional censorship.
Plaintiffs in Murthy v. Missouri claim the line was crossed, and then crossed a few hundred more times. The suit names federal officials including President Joe Biden, former White House Press Secretary Jen Psaki, Anthony Fauci, Surgeon General Vivek Murthy, and others – as well as federal agencies such as the Department of Health and Human Services and the Centers for Disease Control and Prevention.
While the lawsuit ostensibly sets out to detail the many ways the federal government violated Americans’ First Amendment rights, it also spent a great deal of its time explaining why the information the mainstream has labeled “misinformation” is actually the truth.
The Missouri and Louisiana attorneys general cite studies, journal articles, and news stories to bolster their assertions about mail-in voter fraud and about the inefficacy of masking, quarantining, and COVID-19 vaccines. “Yesterday’s ‘misinformation’ often becomes today’s viable theory and tomorrow’s established fact,” they wrote in their legal brief.
The plaintiffs go on to the meat of their complaint, which is about 50 pages of what they hope will be viewed as convincing evidence of a well-oiled censorship machine.
In one example, they present transcripts of Jen Psaki linking encouragement for social media companies to “stop amplifying untrustworthy content … especially related to COVID-19, vaccinations, and elections” with comments about anti-trust regulation and privacy protections, insinuating that the federal government would impose undesirable regulations on social media companies if they do not increase censorship of right-wing messaging.
The suit also states that Dr. Fauci “coordinated with social-media firms to police and suppress speech regarding COVID-19 on social media,” particularly about the lab-leak theory – which contends that COVID-19 originated in a lab in Wuhan, China – because Fauci himself signed off on funding the gain-of-function research that may have created the virus. Instead, Fauci and other officials at the National Institutes of Health pushed the narrative that COVID was a zoonotic virus that jumped to humans in a Wuhan seafood market.
Whether these examples and many others constitute threats or nefarious coercion is what the high court is now weighing. A federal district court judge issued a preliminary injunction that prevents much of the federal government from collaborating with various groups about what should and should not be allowed on social media. The Fifth U.S. Circuit Court of Appeals kept it in place, saying the evidence showed the existence of “a coordinated campaign” of unprecedented “magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life.”
The injunction rang alarm bells as it specifically banned communication between the federal government and the Election Integrity Partnership, which was instrumental in debunking false claims about the 2020 election. The Supreme Court stayed the injunction, suggesting it was less convinced than the lower courts by initial evidence.
One private individual suing alongside the states is Dr. Aaron Kheriaty, who was fired from his job at a University of California school for refusing a COVID-19 vaccine. Author of “The New Abnormal: The Rise of the Biomedical Security State,” Kheriaty describes government censorship as a “leviathan,” a Hobbesian term to describe an entity with utter control over its subjects.
“It’s an interconnected network of public and supposedly private entities that is basically working 24/7 to flag and pressure the social media companies into doing its bidding with censorship,” said Kheriaty. “If these social media companies are not complying, the government can turn the screws and turn up the temperature and basically force them into compliance.”
Some conspiracy theories turn out to be true. But this would be a big one.
It is undeniable that conservative and right-wing voices were censored on social media, mostly beginning in and around March 2020, just as the plaintiffs argue in their suit. Platforms such as Facebook, X (formerly Twitter), and YouTube all made concerted efforts to either outright remove dissenting posts about the COVID-19 pandemic and the 2020 presidential election, or at least to diminish the reach of such posts.
Litigating whether such measures are unconstitutional raises a host of questions, starting with whether platforms such as X or Facebook are solely private sector companies or whether in a highly digital age they have become the de facto public square where censorship is more proscribed. This is not merely an academic concern. The First Amendment protects, in the Supreme Court’s words, a “robust sphere of individual liberty” that allows private actors to make their own decisions about what speech they wish to associate with. Social media companies have been considered private actors under the law and are permitted to moderate user speech and content as they see fit under Section 230 of the Communications Decency Act.
But with social media platforms acting as the present-day town square, it’s no surprise that so many Americans think it unjust that they could be censored for their views. “Modern society is so thoroughly dependent upon social media for communication, news, commerce, education, and entertainment that any restriction of access to it can easily feel like a matter of constitutional significance,” writes legal scholar Mary Anne Franks.
The Murthy v. Missouri suit argues that Section 230 “directly contributed to the rise of a small number of extremely powerful social-media platforms, who have now turned into a ‘censorship cartel.’” In this part of the suit, the case transforms itself into an argument for the overturning of Section 230, which multiple states are considering.
The lawsuit cites numerous examples of censorship that occurred before the Biden administration took office, and claims it was indeed threats from the Biden campaign which coerced social media companies to overly censor. It will be difficult to prove abridgment of free speech on these points, as only a government – not a campaign – is legally bound by the First Amendment.
The plaintiffs cite, “perhaps most notoriously,” the example of the Hunter Biden laptop story. The New York Post ran a story on Oct. 14, 2020, about the computer of then-presidential nominee Joe Biden’s son and the proof it held of corrupt business dealings, but the Post’s Twitter account was blocked until after the election. In fact, no one could share the story (even via Twitter direct message) because, as the Wall Street Journal Editorial Board put it, “nearly all of the media at the time ignored the story or ‘fact-checked’ as false.” The plaintiffs argue the story was censored because social media companies were “parroting the Biden campaign’s false line,” and so treated the story as “disinformation.”
Similar arguments are made about censorship of speech that raised concerns about the security of voting by mail – that the Biden campaign coerced social media companies into censoring such speech because it did not align with their personal interests. Such posts about election fraud spiraled into a narrative that the election was stolen and contributed to the violent Jan. 6 riot at the U.S. Capitol.
In 1783, George Washington warned that if ‘the Freedom of Speech may be taken away,’ then ‘dumb and silent we may be led, like sheep, to the Slaughter.’ Citing this quote, the plaintiffs in Murthy v. Missouri began their quest to unveil the censorship leviathan.
Whether the courts find their evidence compelling enough to reapply the injunction on much of the federal government is the question of the case. The plaintiffs argue that the government has no role at all, insisting that labeling “disfavored speech ‘misinformation’ or ‘disinformation’ does not strip it of First Amendment protection. Some false statements are inevitable if there is to be an open and vigorous expression of views.”
Kheriaty echoed the sentiment. “The constitution is very clear that the government’s role is not to distinguish between true and false information or true and false speech,” he said. “The government’s only role is to distinguish between legal and illegal speech.”
Danger is invited in when people are not exposed to a multitude of viewpoints, they say. Perhaps we are all victims of the certain censorship that comes from our personalized social media feeds, in which we are fed only information we want to hear. Each side thinks the other is brainwashed. This has led to real-world harm, and surely will again in the future. Whose job is it to save us from ourselves?
