Litigating The Government's Metastasizing Censorship Regime

March 28, 2023Francis Menton @ Manhattan Contrarian

For years, conservatives have complained of apparent censorship of their voices on the principal social media platforms, like Facebook, Google and Twitter. Posts or tweets get taken down, or de-boosted, or de-monetized, or degraded in search results, or “shadow-banned,” or slapped with content warnings, or otherwise suppressed. But the response from Big Tech has always been, hey, we’re private companies, and we’re not subject to the First Amendment. We can do as we please.

Then Elon Musk took over Twitter, and followed by giving several journalists access to Twitter’s electronic archives to investigate any untoward government manipulation. The result has been the Twitter Files, an ongoing series of Twitter threads laying bare the coordination between pre-Musk Twitter and dozens of government actors to suppress disfavored speech. The most recent nineteenth segment of the Twitter Files series was published on March 20 by Matt Taibbi.

Now that it is clear that the systematic censorship of conservative voices is very real and has been largely directed and coordinated by the government itself behind the scenes, is there anything that can be done about that through litigation? There actually are some significant efforts under way in that regard. Probably the most important is the case titled Missouri v. Biden, pending in the Western District of Louisiana. The case seeks declaratory and injunctive relief against the government under the First Amendment to stop it from continuing to pressure social media platforms to suppress speech that the current government does not like. On March 20, the court issued a major opinion denying the government’s motion to dismiss. That opinion is available here. With the motion to dismiss denied, the case will proceed through full discovery and, presumably, trial.

The plaintiffs in Missouri v. Biden are the states of Missouri and Louisiana, plus a group of private plaintiffs that includes some prominent names in the area of Covid-19 response — most notably Jay Bhattacharya of Stanford and Martin Kulldorff of Harvard. The two states are represented by their offices of Attorney General. The individual plaintiffs are represented by the New Civil Liberties Alliance, the public interest law firm that is recently making a huge name for itself in cutting-edge civil rights litigation.

Being no dummies, the NCLA has brought this case in a Louisiana District Court where it was likely to find a favorable judge, and which is part of the federal Fifth Circuit, known as the most conservative of the federal courts of appeal. It’s the flip side of how the game of environmental and “climate” litigation has long been played by the Left. When climate activists brought federal lawsuits trying to get some judge to declare a constitutional right to shut down use of energy, they went to the federal courts in San Francisco and Oregon, known to be home to multiple activist judges, and both part of the liberal Ninth Circuit. OK, two can play this game.

Although the original Complaint in Missouri v. Biden pre-dates the Twitter Files exposé, the plaintiffs were able to compile substantial information about federal involvement in the suppression of their speech. And, as more information has come out, the plaintiffs have amended their complaint twice. Here are just a few examples from the court’s Opinion of allegations of speech suppressed as a result of threat from or coordination with the government. (The allegations in question come either from the plaintiffs’ Second Amended Complaint, or from declarations submitted by plaintiffs as part of the motion papers.):

• “The Media Research Center found more than 640 examples of bans, deleted content and other speech restrictions placed on those who criticized [President] Biden on social media over the past two years.” . . . “The list of censorship targets included an array of prominent influencers on social media: Trump; lawmakers like Sen. Ted Cruz (R-TX) and House Minority Leader Kevin McCarthy (R-CA); news outlets like the New York Post, The Washington Free Beacon and The Federalist; satire site The Babylon Bee; and others.”

• Jay Bhattacharya, one of the Private Plaintiffs, stated in his declaration, “Because of my views on COVID-19 restrictions, I have been specifically targeted for censorship by federal government officials.” . . . [T]he “Great Barrington Declaration,” which Bhattacharya co-authored, was subject to “immediate backlash from senior government officials who were the architects of the lockdown policies” for COVID- 19. . . . Bhattacharya alleges that “Google deboosted search results for the Declaration, pointing users to media hit pieces critical of it, and placing the link to the actual Declaration lower on this list of results.” Further, a “roundtable” discussion between Bhattacharya and others, posted via video to YouTube, was removed from the social-media platform, with YouTube claiming that the video “contradicts the consensus of local and global health authorities regarding the efficacy of masks to prevent the spread of COVID-19.” Additionally, Bhattacharya alleges that he and his co-authors of the Great Barrington Declaration were personally censored on social media, primarily on Twitter and LinkedIn.

• [Martin] Kulldorff co-authored the Great Barrington Declaration and allegedly “experienced censorship on social media platforms due to [his] views on the appropriate strategy for handling the COVID-19 pandemic.” . . . As just one example, Kulldorff alleged that Twitter censored the following tweet in March of 2021: “Thinking that everyone must be vaccinated is as scientifically flawed as thinking that nobody should. COVID vaccines are important for older, higher risk people and their caretakers. Those with prior natural infection do not need it. Nor children.” Kulldorff echoed Bhattacharya’s belief that the censorship of COVID-19-related opinions on social media was driven by government officials.

There are numerous additional examples in the Opinion, and the Opinion indicates that it has only scratched the surface of the many allegations in the Complaint.

So is there precedent for the proposition that sufficient government involvement in speech suppression can turn what would otherwise be private activity into “state action” that violates the First Amendment? The court cites several precedents that have so found. Notable examples are:

• Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67, is a 1963 case from the U.S. Supreme Court. In that case the Court held that a legislatively-created commission, by notifying publishing distributors, on official commission stationary, that certain designated books or magazines had been declared objectionable for sale or distribution, thereby engaged in a scheme of governmental censorship.

• A more recent precedent is Backpage.com, LLC v. Dart, 807 F.3d 229, 230, from the Seventh Circuit Court of Appeals in 2015. That case involved threats by a local law enforcement official against MasterCard and Visa to get them to stop processing payments for the backpage.com website. (Backpage was known as a site featuring advertisements from people in the sex trade, although that was far from its only business.). The Seventh Circuit held “A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff's First Amendment rights.”

So it looks like the two states and the individual plaintiffs are going to get the chance to prove their cases. Given the material so far revealed in the Twitter Files, there may be no shortage of evidence of deep government involvement in widespread censorship.

In addition, the Louisiana court is giving the plaintiffs substantial opportunity to take discovery of the government players to explore their involvement in censorship. From November 2022 through January of this year, a series of depositions has already been taken of government officials on this subject. Deponents so far have included the likes of Anthony Fauci of NIAID and Elvis Chan of the FBI. The NCLA has posted the full videos of the depositions on its YouTube channel. The depositions average almost 7 hours in length, so there’s no way I have time to watch them, but I’m sure there are plenty of interesting revelations for those willing to watch.

It may be some considerable time before there is a trial in this matter. However, as discovery proceeds, more and more information about the government censorship regime is likely to come out. Thanks are due to NCLA for undertaking the large effort to expose this completely improper conduct by our authorities.