The Covid-19 pandemic revealed a split between those who believe that the government has broad authority to control every aspect of the economy and society in the name of the public good, and those who believe that such intrusions are beyond the government’s constitutional authority. A pending case gives the U.S. Supreme Court the opportunity to decide whether the purported need to protect public health can trump the First Amendment.
The Court granted certiorari to hear an appeal of the Fifth Circuit Court of Appeals’ decision in Murthy v. Missouri (formerly Missouri v. Biden), which prohibited federal health and other officials from communicating with social media platforms about removing posts that the government identifies as false or misleading. The appellate court found evidence of “a coordinated campaign” of unprecedented “magnitude orchestrated by federal officials” to suppress disfavored, generally conservative, points of view on social media. It held that “the district court was correct in its assessment—‘unrelenting pressure’ from certain government officials likely ‘had the intended result of suppressing millions of protected free speech postings by American citizens.’”
The alleged censorship reviewed by the court covered several topics but mostly related to supposed Covid-19 “misinformation”—including opposition to Covid masking and lockdowns, the lab-leak theory of Covid’s origin, and questioning the need for universal Covid vaccination.
Two of the private plaintiffs, infectious-disease epidemiologists Jay Bhattacharya of Stanford and Martin Kulldorff of Harvard, were among the suit’s alleged victims. Bhattacharya and Kulldorff coauthored the Great Barrington Declaration, which expressed concern about the damaging physical- and mental-health impacts of Covid lockdowns and proposed the alternative approach of “focused protection” of vulnerable groups. In court, the two scientists provided convincing evidence that Francis Collins and Anthony Fauci of the National Institutes of Health conspired to organize, as Collins advocated in an email to Fauci, “a quick and devastating published take down” of the GBD and its authors, and that other NIH personnel directly contacted social media companies, resulting in the censorship of the GBD and its authors.
Their claim was bolstered by emails obtained by Reason, which revealed that officials from the Centers for Disease Control and Prevention and the Biden administration interacted almost daily with Twitter and Facebook in an often successful attempt to influence online content about the pandemic. Pronouncements by administration officials—including President Biden, who accused social media companies of killing people with misinformation—carried the implied threat that firms would suffer if they didn’t censor government-designated misinformation.
While they warned against supposed misinformation, Fauci and Collins and CDC officials were supporting lockdown measures that had no evidentiary basis, either before or during the pandemic. An empirical analysis that I coauthored found no significant connection between the severity of states’ lockdown measures and their health outcomes. States that imposed more severe lockdowns, however, had far worse economic and education outcomes. Lockdowns were associated with increased non-Covid-related deaths and poorer mental health.
In fact, many CDC communications were themselves misinformation. A report that I coauthored for the Competitive Enterprise Institute (where I am a senior fellow) and the Paragon Health Institute (where I direct the institute’s public health initiative) found that the CDC presented incomplete and inconclusive data as scientific fact. It relied on faulty science to advance damaging guidance on social distancing, masking, and school closures, and maintained arbitrary, overly cautious guidelines long after published evidence made clear that those guidelines were unnecessary and harmful.
Without clear judicial direction to stop, the government seems poised to continue its censorship efforts. A Food and Drug Administration–commissioned report by the nonprofit Reagan–Udall Foundation advised the agency to engage in “pre-bunking” of misinformation (“false, misleading, or inaccurate information that is shared unintentionally or intentionally”) and of disinformation (“deliberate dissemination of false, misleading, or inaccurate information to discredit a person or organization”). One prominent study defined pre-bunking as a strategy to “preemptively build resilience against anticipated exposure to misinformation.”
Future censorship efforts will likely be partisan. A Pew Research Center survey found that support for government restricting false information online, even if it limits freedom of information, has risen from 39 percent of American adults in 2018 to 55 percent in 2023. Yet, this increase is almost entirely a partisan phenomenon: while there was little difference between the parties in their support for this view in 2018, the share of Democrats who think that the government should suppress false information jumped from 40 percent in 2018 to 70 percent in 2023, while the percentage of Republicans supporting government censorship was almost unchanged (37 percent to 39 percent).
The Supreme Court will hear the case early this year, though the justices are unlikely to issue a decision before the spring. Meantime, the Court has stayed the lower court’s injunction prohibiting federal officials from “coerc[ing]” social media companies to engage in censorship or “meaningfully” controlling companies’ content-moderation decisions. A decision barring government-sponsored censorship cannot come soon enough.
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