Suppression by proxy

An explosive decision was handed down late last week by a U.S. Court of Appeals in Missouri v. Biden, striking a big blow against the Biden administration and its attempts to use political pressure to induce social media companies to suppress content.

While several categories of expression and content were subject to such government pressure, the lion’s share of the suppression was about dissenting views regarding the government’s handling of, and claims about, COVID-19. This ruling largely upheld a preliminary injunction that would forbid, with immediate effect, key Biden administration officials from continuing to coordinate with tech companies about the removal of content the administration did not like.

The complaint was brought by the attorneys general of Louisiana and Missouri and by Jay Bhattacharya, a Stanford University professor who was himself censored for expressing quite reasonable views that were contrary to the enforced consensus on COVID-19 and related topics. Dr. Bhattacharya is far from a fringe figure. A professor of medicine, he endorses COVID-19 vaccines and credits them with his recovery from the virus. He also believes that people should have personal liberty regarding masking and vaccination. He strongly advocates a free and open debate on these matters.

“My misinformation crime,” he told this writer, “was that I said that there was no high-quality randomized evidence to support child masking.” This occurred in a conversation with the governor of Florida. It is astonishing that a conversation between a renowned Stanford professor and an elected governor could simply be pulled from YouTube at the behest of a White House staffer.

Professor Bhattacharya was one of the parties to the suit led by the two state attorneys general seeking to stop the federal government from coordinating with technology companies regarding what content should be blocked by those companies. Chief U.S. District Judge Terry Doughty granted the injunction and predicted that the plaintiffs would likely prevail in court, and last week, they did. He offered a blistering critique of the “Orwellian” practice of government using social media as a kind of one-degree-of-separation censorship service.

The complaint and the amicus curiae brief from Alliance Defending Freedom show that the government and technology companies were in continual contact, with social media companies sometimes responding within minutes to instructions about what to remove. Of course, this all occurred in an environment in which Mark Zuckerburg said the threat of government retaliation, such as a regulatory breakup action, constituted “an existential threat” to the company.

However, the ADF brief argued that tech companies were not exactly strong in the free expression department before government pressure. They have vague standards regarding what content is permitted and what is forbidden, as documented by the low viewpoint diversity scores achieved by Alphabet and Meta on an ADF index. The ADF brief states, “Social media companies are eager to silence viewpoints they dislike, giving the government a ready source of accomplices.” In short, they were censorious on topics outside the public health consensus machine, which formed around the epidemic. Before it was the vaccine viziers, it had been the pronoun police.

Alphabet, Amazon, Verizon, and Meta fought against shareholder proposals from the National Legal and Policy Center, attempting to get the companies to disclose how they decided who should be suppressed. In the proposal to Alphabet, the center alluded to the case regarding which the injunction itself was issued. The proposal earlier this year on the Meta ballot called on the company to disclose its collusion with government. The company took a “nothing to see here approach,” saying that it complies with local laws and there is no need to disclose instances in which the government has specifically issued takedown requests regarding disfavored content.

Sadly, the proposals failed due to a lack of support from the big institutions such as the large asset managers and the proxy services. ISS, the largest and most influential proxy advisory service, opposed the idea based on the claim that content takedowns were not an area of significant controversy, which could only be said by someone who has never read conservative media.

Social media was supposed to widen, not narrow, the discussion. The recent unfortunate experiment in applying the public/private partnership model to dissent suppression has been exposed and ruled illegal. The government has no right to demand the censorship of views it does not like. It’s time for social media companies to be what they’ve always claimed they are—free speech platforms. The judicial branch has given them a mandate to do so. Twitter is showing that it can actually be done. Leave it up to free people to sort out the good ideas from the bad without Big Brother’s coercive guidance.