Highly supportive amicus brief from the Atlantic Legal Foundation for our First Amendment case
"The Court should reverse the district court’s judgment [to dismiss]."
Some excerpts from the amicus brief…
…ALF’s position on the law aligns with Appellants’ position on the law… the purpose of this brief is to discuss why the Court, as required by the First Amendment, should protect the public’s right to openly challenge the scientific bases for the government’s COVID-19 mitigation policies and messaging.
No reasonable person supports the use of social media to promulgate misinformation, especially concerning urgent matters of public health. The federal government, however, should not be permitted to violate the First Amendment, under the rubric of fighting health misinformation, by suppressing free speech that criticizes or questions the scientific bases for its nationwide public health policies and messaging.
Silencing dissenting or cynical views may be politically expedient, but is particularly troubling during an unprecedented public health emergency where, as in the case of the COVID-19 pandemic, a series of mitigation measures (e.g., mandatory quarantines, social distancing, face coverings, and vaccines) necessarily precede sound and robust scientific research.
Labeling criticism or skepticism of such pandemic mitigation measures as “misinformation” simply because it challenges the scientific bases for the government’s shifting, and often contradictory or inconsistent, public health policies and messaging, fundamentally conflicts with the manner in which scientific knowledge evolves.
The U.S. Surgeon General’s March 2022 Request for Information (RFI), 44 Fed. Reg. 12,712 (March 7, 2022), which is directed to COVID-19-related “misinformation” that is posted on social media platforms such as Twitter, unconstitutionally chills freedom of expression.
The RFI’s self-serving definition of “misinformation” is so broad, the Executive Branch, by coercing social media to cooperate, can attempt to justify blatant, unconstitutional censorship of free speech by labeling as misinformation virtually any tweet or other online message that takes issue with the government’s COVID-19 narrative at any particular point in time.
Further, the RFI expressly—and ominously— enlists the aid of social media and other technology platforms in identifying, and sharing with the government, specific sources of supposed misinformation.
As a practical matter, the RFI enables the Executive Branch to monitor and enforce social media’s compliance with the government’s own views on what types of speech constitute COVID- 19 misinformation.
“The Supreme Court’s well-established state-action doctrine prohibits the government from circumventing the Free Speech Clause by coercing, encouraging, and/or joining with social media companies in suppressing freedom of expression.”
Under the Court’s state-action principles, social media are treated as state actors for First Amendment purposes insofar as the RFI, and/or the additional pressure tactics alleged in Appellants’ Complaint, result in censorship of speech that the government is constitutionally barred from suppressing directly.
‘Science is not an encyclopedic body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement.’
The universally accepted process of continually and progressively postulating, testing, and disproving hypotheses is the “scientific method,” which the Supreme Court described as “generating hypotheses and testing them to see if they can be falsified.
In other words, “science is an honorably self-correcting process,” not “a fixed set of facts in a textbook.
Stifling public debate—including on Twitter and other social media—about the validity, accuracy, or adequacy of the scientific evidence supporting the federal government’s COVID-19 mitigation policies and messaging may serve political objectives and the administrative state, but it is fundamentally incompatible with, and detrimental to, the manner in which scientific knowledge evolves. Such freedom of expression is particularly necessary and potent during a public health emergency where, as in the case of a novel coronavirus such as COVID-19, the federal government promotes mitigation measures based on assumptions that have not yet been fully tested in accordance with the scientific method—and that subsequently turn out to be untrue.
The unavailability of sound scientific research supporting public health policies and messaging may be unavoidable at the outset of sudden and unanticipated circumstances such as the COVID-19 pandemic. But the lack of sound scientific research is all the more reason why the government should embrace, and certainly not suppress, public criticism or questions that illuminate the need for ongoing and additional scientific investigation.
Along the same lines, the government should encourage, not muzzle, public discourse that highlights inconsistencies between its public health messaging and available scientific studies. For example, despite public confusion and uncertainty—and the availability of large- scale, peer-reviewed, scientific research published in the August 2021 edition of Science magazine—the Centers for Disease Control and Prevention (CDC) did not acknowledge until recently the natural immunity developed by individuals who have been infected with COVID- 19.
Tweets, blogs, podcasts, online and published articles, books, and other communications are not “misinformation” merely because they criticize or question the scientific bases for the federal government’s shifting public health policies and messaging at a particular point in time. Instead, such freedom of expression serves the vital purpose of emphasizing the need for public health policies and messaging that are forthright and evolve in real time as scientific knowledge advances.
In March 2022 the Office of the Surgeon General, a component of the Department of Health and Human Services, issued a Request for Information (RFI) on the “Impact of Health Misinformation in the Digital Information Environment in the United States Throughout the COVID- 19 Pandemic.”
Waving the banner of battling “misinformation,” this carefully worded, seemingly innocuous document enlists the aid of social media and other technology platforms in censoring, penalizing, and discouraging speech that challenges the Executive Branch’s repeatedly changing COVID-19 narrative.
The RFI broadly defines “health misinformation” as “health information that is false, inaccurate, or misleading according to the best available evidence at the time.”
It seeks, inter alia, “[i]nformation about how widespread COVID-19 misinformation is on technology platforms including: General search engines, content sharing platforms, social media platforms, e-commerce platforms, crowd sourced platforms, and instant messaging systems.”
And most troubling, the RFI endeavors to round up “[i]nformation about sources of COVID-19 misinformation.” Id. at 12,714 (emphasis added). “By source,” the RFI “mean[s] both specific, public actors that are providing misinformation, as well as components of specific platforms that are driving exposure to information.” Id. (emphasis added).
Appellants’ Complaint alleges that the RFI is part of “a coordinated and escalating public campaign to stop the flow of alleged ‘health misinformation’ related to COVID-19.”
According to the Complaint, “the Surgeon General, HHS, and the Biden Administration, are not simply colluding with, but instrumentalizing Twitter and other technology companies to effectuate their goal of silencing opinions that diverge from the White House’s messaging on COVID-19.”
The Complaint alleges, for example, that in July 2021 the Surgeon General and HHS “ratcheted up the pressure by, inter alia, issuing an advisory on the subject” of misinformation, and “directed much of their ire toward social media platforms, which they largely blamed for the problem of ostensible ‘misinformation.’”
The Advisory asserts that “technology platforms have contributed to the spread of misinformation . . . [S]ocial media platforms . . . reward engagement rather than accuracy, allowing emotionally charged misinformation to spread more easily than emotionally neutral information.”
A section of the Advisory, “What Technology Platforms Can Do,” calls upon social media and other technology platforms to “[p]rioritize early detection of misinformation ‘super-spreaders’ and repeat offenders,” and to “[i]mpose clear consequences for accounts that repeatedly violate platform policies.”
the Surgeon General’s RFI, on its face, chills, if not effectively quashes, individuals’ right to express and exchange views on the scientific bases for, and costs/risks and benefits of, the federal government’s pandemic mitigation measures.
The RFI’s freewheeling definition of “health misinformation” is so broad and flexible, it can apply to almost any statement that challenges the scientific bases for the government’s public health policies and messaging.
As indicated above, the RFI construes “health misinformation” as “health information that is false, inaccurate, or misleading according to the best available evidence at the time.”
But viewing tweets and other social media or online posts as “misinformation” merely because—even if scientifically valid today—they were incorrect “according to the best available evidence at the time,” conflicts with the hypothesis-by-hypothesis manner (discussed above) in which scientific knowledge evolves.
For example, under the Surgeon General’s definition, a tweet during the Fall of 2021 disputing President Biden’s assertion that COVID-19 vaccines would prevent a person from becoming infected would be “misinformation” if inconsistent with the sparse scientific research that was available at the time—even though subsequent scientific research and real-world evidence have demonstrated that such a tweet would have been correct at the time it was posted.
As another example, under the Surgeon General’s definition, CDC itself spread misinformation to the American public when it promoted COVID-19 vaccines and boosters to individuals who already had been infected even though the then-available scientific evidence already indicated that the virus produces strong natural immunity. Now, CDC finally has revised its guidance to align with scientific knowledge.
The Surgeon General’s Advisory, supra at 4, recognizes that “[u]pdating assessments and recommendations based on new evidence is an essential part of the scientific process, and further changes are to be expected as we continue learning more about COVID-19.” The Advisory even acknowledges that “what counts as misinformation can change over time with new evidence and scientific consensus.”
Yet, one of the stated rationales for the Surgeon General’s RFI is that “most Americans believe or are unsure of at least one COVID-19 vaccine falsehood.” 44 Fed. Reg. at 12,713. What vaccine falsehoods does the Surgeon General have in mind? President Biden’s statements that COVID-19 is a “pandemic of the unvaccinated” and that vaccinated individuals are “not going to get COVID”? Dr. Fauci’s statement that vaccinated individuals are a “dead end to the virus”?
These widely publicized statements about COVID-19 vaccines, regardless of whether they were consistent or inconsistent with the available evidence at the time they were made, are now known to be false in light of subsequent scientific research and empirical evidence. It would be unreasonable to label such statements as misinformation merely because evolving scientific knowledge has shown them to be untrue. For the same reason, COVID-19-related social media posts should not be treated as misinformation merely if they criticize or question governmental policies or messaging based on scientific knowledge that continues to evolve.
No amount of bureaucratic language can disguise the fact that the RFI encourages a wide range of technology companies to report to the federal government the identifies of “major sources of COVID-19 misinformation.” 44 Fed. Reg. at 12,714. The ostensible voluntary nature of the RFI does not change the fact that the government’s request for the identities of “specific, public actors that are providing misinformation,” id., can be viewed as an effort to silence them.
Even if some supposed sources of misinformation are not intimidated by the government’s tactics, the unmistakable censorship signal that the RFI transmits to every social media and other technology platform is loud and clear.
In addition to banning or suspending supposed purveyors of misinformation, various forms of high-tech censorship, expressly recommended by the Surgeon General, will enable an individual platform such as Twitter to lower its aggregate data “on the prevalence of COVID-19 misinformation.”
In essence, the RFI helps to foster a symbiotic relationship between the federal government and social media for the common purpose of squelching, under the rubric of “misinformation,” any views that undermine the scientific credibility of the Executive Branch’s COVID-19 public health policies and messaging.
This misguided endeavor starkly conflicts with the White House’s stated goal to “develop policy that is science-driven, and based on evidence, exploration, open-mindedness, rigor, honesty, and scientific integrity.”
Under [the Supreme] Court’s cases, a private entity can qualify as a state actor in a few limited circumstances—including, for example, (i) when the private entity performs a traditional, exclusive public function; (ii) when the government compels the private entity to take a particular action; or (iii) when the government acts jointly with the private entity.”
Here, Twitter and other social media should be viewed as state actors insofar as the federal government, to protect its COVID-19 policies and messaging from widespread criticism, has essentially deputized ostensibly private technology companies to help carry out its ongoing efforts, through the Surgeon General’s RFI and other means, to identify and penalize sources of putative “misinformation.”
The situation here is far different. Appellants allege that the federal government is actively compelling or encouraging Twitter’s and other social media’s COVID-19 misinformation censorship activities.
Indeed, at a July 16, 2021 press briefing, White House Press Secretary Jen Psaki stated that “it shouldn’t come as any surprise that we’re in regular touch with social media platforms—just like we’re in regular touch with all of you and your media outlets—about areas where we have concern, information that might be useful . . . so we are regularly making sure social media platforms are aware of the latest narratives dangerous to public health that we and many other Americans . . . are seeing across all of social and traditional media. And we work to engage with them to better understand the enforcement of social media platforms.”
I sounded the alarm on this as loudly as I could at the time. https://www.getrevue.co/profile/markchangizi/issues/big-tech-censorship-is-actually-government-censorship-597190
Under well-established state-action principles, these concerted governmental efforts to compel or encourage censorship transform social media into state actors for First Amendment purposes.
Appellants allege that “[b]y instrumentalizing tech companies including Twitter—through pressure, coercion, and threats—to censor viewpoints that the federal executive has deemed ‘misinformation,’ the Surgeon General has turned Twitter’s censorship into State action.”
the Surgeon General’s RFI is exactly such a pressure tactic. The RFI’s coercive purpose is even more transparent when viewed through the lens of the Surgeon General’s Advisory on Confronting Health Misinformation, supra ̧ and in light of Appellants’ additional allegations about the government’s heavy-handed social media misinformation initiative.
For example, the Complaint quotes former White House Press Secretary Psaki at a May 5, 2021 press briefing, where, on behalf of President Biden, she expressly coupled social media’s “responsibility . . . to stop amplifying untrustworthy content, disinformation, and misinformation” with the threat of “a robust anti-trust program.”
This is an example of “jawboning”—“attempts by government actors to influence private action by threat of future regulation.” Brannon & Novak, supra at 2. “[J]awboning or other government pressure may convert a private party’s conduct into state action subject to the First Amendment if the pressure is so significant that the private party’s act is no longer considered an ‘independent decision.’”
Since the First Amendment indisputably prohibits the federal government from directly censoring the content of tweets and other social media posts that criticize or question the scientific bases for its COVID-19-related policies and messaging, Appellees are attempting to engage in what one legal scholar termed “censorship by proxy.
almost 60 years ago the Supreme Court recognized the affront to the Free Speech Clause where a state- created “Commission to Encourage Morality in Youth” attempted to coerce distributors into acting as censorship proxies by halting sale of books that the Commission deemed “objectionable.”
The Court explained that the Commission “was in fact a scheme of state censorship effectuated by extralegal sanctions; they acted as an agency not to advise but to suppress.”
As in Bantam Books, the Executive Branch cannot coerce social media into acting as censorship proxies, such as by threatening them with robust antitrust enforcement if they fail to comply with the government’s COVID-19 “misinformation” suppression efforts.
Even if the RFI and the government’s additional efforts to induce social media to censor COVID-19 misinformation and identify sources of such misinformation are not tantamount to coercion, they certainly overtly encourage social media to do so.
In view of the RFI and the government’s health misinformation dragnet, social media’s COVID-19 misinformation censorship activities certainly have been significantly influenced by the government, and indeed, have the government’s “imprimatur.”
And if as a result, Twitter or another social media platform is a “willful participant in joint activity,” Lugar, 457 U.S. at 941 (internal quotation marks omitted), to censor free speech, that too is enough to trigger state action subject to the First Amendment.
The Court should reverse the district court’s judgment. Alternatively, the Court should vacate the district court’s judgment and remand the action to the district court for additional factual development.
Kudos to you, Mark and the other plaintiffs for the courage and principles to push back against a pernicious anti-Constitutional stance. This amicus brief is thorough, well-argued & powerful!
Frustrating that people like Murthy & Becerra r never compelled to examine whether their censorship WORKED as intended.
Here’s what all the censorship did NOT do: Improve compliance or confidence.
Here's what all the censorship DID do *successfully”:
irreparably eroded trust in science, the medical profession, politicians
prevented critically needed discussion on solutions that could’ve prevented deaths
fostered intense anger
led to polarization
ramped up the contempt of the censoring cohort
destroyed science w/an overcertain message that the science has spoken
engendered resistance
destroyed careers of previously lauded scientists/doctors
created self-censorship
put the policy reins in the hands of authoritarians
lowered vaccination rates of previous childhood vaccines
put double-standards on ‘roids
damaged democracy on the absurd altar of *saving democracy*
Gonna stop here but not because this list is complete.
https://jasonpowers.substack.com/p/the-great-game-2022
What a wicked game we are in. Stay frosty.