Part II: The Clash Between the First Amendment, Social Media, and “Anti-Vax-Misinformation” – GWC Mag

In State of Missouri  v. Biden, renamed Murthy v. Missouri, two states and five contrarian activists sued the federal government (some twelve branches of it and their employees). They sued not because the federal government directly interacted with them, but because they claim the federal government manipulated social media decision-making – which, in turn, impacted their posts. The actionable harm? They now self-censor to avoid penalty.

The suit does not seek relief for past actions when the federal government communicated, advised, monitored, and encouraged social media to rein in their platforms and “vet” unorthodox “science” and vaccine misinformation. Rather, the case seeks to control federal behavior in the future, hampering its ability to respond in future emergencies.

The Fifth Circuit, whose decision is being appealed, spent most of its opinion discussing the type and extent of allowable federal communication with third parties. It concluded that persistent emails providing information and encouragement and conveying the imperative nature of reining in mis- and disinformation was improperly coercive. Sidestepping the four tests traditionally used to parse out the nuances determining whether government activity is persuasive (allowed) or coercive (forbidden), discussed here, and excusing the need for overt threats – which did not exist – the Court concluded that the feds coerced Google, Facebook, X/Twitter, and YouTube into curtailing dissemination of misinformation. Their rationale: the platforms’ acquiescence to the federal position based on social media’s decisions.

“U.S. Solicitor General Elizabeth Prelogar argued in court filings that the relationship between government agencies and social media sites was collaborative and while government officials ‘frequently suggested’ removal of false information, they did not force companies.”

It’s hard to see how these battle-worn, trial-tested conglomerates, which often play Goliath to the governmental David in anti-trust and privacy suits, could feel “threatened” or coerced by the likes of government emails. Nevertheless, after concluding that evidence of their perception of threat comes from the platforms’ mere acquiescence to (or in some cases active collaboration with) government requests, the Court ruled:

“We find that the White House, acting in concert with the Surgeon General’s office, likely the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences [which the Court said were subtly implied], and significantly encouraged the platforms’ decisions by commandeering their decision-making processes, both in violation of the First Amendment.” [1]

We find the accusation of the feds “commandeering their decision-making processes” to be more than a minimal stretch.

Deciding that virtually all federal involvement here was forbidden, the Court, rather than sending the matter back to the lower court as is customary, offered what it apparently considered a generous outcome: It denied nine counts of the injunction sought by the plaintiffs, instead crafting (and broadening) a single directive, rather than sending the matter back to the lower court, ruling:

“Defendants [i.e. branches of the US government], and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.”

But we run into the same conundrum — what constitutes threatening or coercive speech? The Court provides no definitive answer other than referring back to its earlier discussion:

“Distinguishing coercion from persuasion is a more nuanced task than doing the same for encouragement. …Coercion … may be more subtle.”

What About National Security?

Libertarians might applaud the ruling. Until, that is, they dig a little deeper and realize this holding shackles the FBI from addressing misinformation emanating from foreign troll farms, bots, and state-sponsored actors like Russia and China, thereby raising national security concerns. Even the Court noted that sophisticated pundits, bots, trolls, foreign agents, and super-charged adrenalin-fueled-hate rhetoric [including death threats on Tik Tok to vaccine advocates] may amplify misinformation to dangerous levels previously unseen. But rather than providing a carve-out for special redress, the Court ruled that by virtue of its power status, even non-overtly threatening action by the likes of the White House and FBI could be considered threatening.

Competing equities

In addressing competing equities, the Court aligns the equities of the plaintiffs (unfettered free speech) with those of the public-at-large (also characterized as free speech concerns). But, who is championing the protection of public health in this controversy? The answer: No one. That critical element is omitted from the legal calculus as the Court frames the issue as purely dichotomous: government action versus free speech. 

Competing “Viewpoints” and the First Amendment

Another troublesome kink is the Court’s couching this matter as preserving competing “viewpoints.” But the dissemination of intentionally misleading and dangerous vaccine misinformation – or, more accurately, disinformation – should hardly be considered speech warranting constitutional protection [1].

Legal rulings holding that contrarian and unsubstantiated views should be preserved as competing “viewpoints” trivialize the pursuit of scientific knowledge. When the Court considers the weight to be apportioned between public health agencies and outlier pundits, free speech doctrine should not be the deciding mechanism.

The need for careful vetting of novel, unorthodox “science” before it is afforded protection is not intended to cut off, censor, or curtail novel approaches – but rather to assure that they are evidence-based (or in legal terms: reliable, relevant, and methodologically sound).

Indeed, “newer” non-mainstream science is admissible in a court of law, but only if that evidence satisfies tests of reliability and methodological integrity and nexus, and that there is validation of the credentials of the presenting “expert.” In Murthy v. Missouri, neither the plaintiffs nor their materials come close to satisfying these tests. Unreliable opinions untethered to reliable methodology offered by unvalidated proponents, at least per the Supreme Court in the Daubert trilogy, are outlawed as “unsubstantiated expression of opinion” (ipse dixit.)  Rank, untethered beliefs that are contrary to hard science and validated data, and that mislead and endanger the populace and compromise national security, deserve no Constitutional protection at all.

Standing

Perhaps the most dubious conclusion of the Court is that the individual plaintiffs suffered harm. Their claim? Simply that they now self-censor, and that without the injunctive relief, they will continue to vet their own postings.  And yet, they have not asserted any legally recognized right that has been violated. They self-censor to afford themselves the choice – not the right – to post on a private venue.

The Court neglects to acknowledge that the plaintiffs have no right to post on social media. Nor are they being censored by any government agency. Even if their views are not permitted on social media platforms, they can surely be published elsewhere — for example, posted on personal blogs or on individual email listservs. For example, two plaintiffs who orchestrated the Great Barrington Declaration published it as an open letter which achieved widespread dissemination. They are also frequent contributors to Op-Ed pages and publish on various websites. Scientific papers of requisite caliber can be published in scientific journals. As compared to defamation or child pornography, for example, the publishing of their “viewpoints” is not prohibited by law.

Pick Your Poison

In a 6-3 ruling, the Supreme Court put the Fifth Circuit decision on ice until it makes its own ruling.  Yet, the dissent, written by Justice Alito and signed by Justice Thomas, which argues in favor of the injunction, is telling and hypocritical. Previously, in US v. Alvarez, a 2012 case in which a person lied during a political campaign about having served in the military and having received the Congressional Medal of Honor (joined again by Justice Thomas), Justice Alito wrote:

“[T]he right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest.” 

Are we cherry picking, Mr. Justice?

[1] Notwithstanding views of scientifically untutored constitutional lawyers, all-the-time speech availability does not allow for more speech to counteract it.