Mark Changizi, Michael Senger, and Daniel Kotzin became active Twitter users in March 2020, focusing on criticism of government pandemic policy and rapidly gaining large followings. Many of their more-controversial contentions—for instance, that lockdowns and mandates for masks and vaccines would be ineffective at curbing viral spread while having deleterious societal effects—have turned out to be true.
In the spring of 2021, federal officials began making public statements threatening tech companies with regulatory sanctions if they failed to police “misinformation.” Coincidentally, beginning around April 2021, Changizi, Senger, and Kotzin began experiencing censorship, including temporary suspensions, shadow bans, and even permanent loss of their accounts. Then, in March 2022, the surgeon general issued a “request for information” (RFI), demanding that tech companies turn over the identities of “misinformers” on a wide variety of platforms.
The three men sued the Department of Health and Human Services, arguing that, by coercing social-media companies to censor so-called misinformation, the federal government violated their First Amendment rights. They also argued that the RFI: (1) had a chilling effect on speech; (2) constituted an unlawful search in violation of the Fourth Amendment; and (3) lay beyond the administrative authority granted the surgeon general.
A federal district court in Ohio dismissed the lawsuit after finding that the plaintiffs could not demonstrate that what was going on with their accounts was tied to the government, since Twitter had engaged in such restrictions before any official “jawboning.” The court rejected the plaintiffs’ contentions that they had observed censorship escalate around the time the federal government began its public campaign, and that they should at least be permitted to get discovery and ascertain whether there existed additional evidence of illicit government involvement. (Notably, a district court in Louisiana granted discovery in a similar suit, Missouri v. Biden.)
Since the district court’s ruling on May 5, 2022, new evidence has surfaced corroborating the theory that the government was driving Covid-related censorship. A whistleblower exposed Department of Homeland Security emails showing a campaign to pressure social-media companies to censor purveyors of “misinformation” (including those who cast doubt on the efficacy of masks and vaccines), and a FOIA request recently turned up CDC emails demonstrating that agency’s use of the same tactics.
The Manhattan Institute, together with the Institute for Free Speech, has filed an amicus brief supporting the Changizi plaintiffs before the U.S. Court of Appeals for the Sixth Circuit. We argue that state action exists, and thus constitutional scrutiny attaches, when government threats—some not-so-loosely veiled—affect the decisions of private entities such that their actions effectively become those of the state. The same state action occurs when, in lieu of coercion, the government colludes with private actors.
We face untold regulatory challenges in adapting to the digital age, particularly with the explosion of social-media platforms as forums for expressing political ideas, but there’s little difference between twenty-first-century censorship and that which came before. Censorship by a government-coerced or -induced or -collaborating agent violates the First Amendment no less than an official order to “stop the presses.”
Alas, the district court in Changizi v. HHS didn’t appreciate the all-too-real prospect that government can drive social-media censorship. But the plaintiffs are entitled to prove that this possibility in fact came to fruition: by many accounts, numerous tech platforms followed the government’s direction and began heavily censoring or even banning users for their allegedly misleading posts about the pandemic. Indeed, recent reporting confirms that federal agencies colluded with and coerced platforms to suppress Covid-related “misinformation.”
The government justifies its speech suppression by calling it a fight against “domestic terrorism,” but the posts at issue are either factually accurate or simply state disagreements with government policy—and in any case, “fake news” can also be protected speech. The plaintiffs seek to hold the government liable for its transgressions.
Supreme Court jurisprudence prohibits the use of pressure applied by government officials to compel speech suppression by private actors. Twitter is of course at least somewhat free to apply whatever terms of service it likes—whether we should regulate Big Tech as we did railroads or other common carriers is a subject for another day—but the Changizi plaintiffs assert no legal claim against Twitter. Instead, they credibly allege that Twitter became a government tool and thus seek redress from the government.
Currying favor to escape adverse regulatory action or prosecution translates to state action, as does colluding with the government to advance mutual goals. At the very least, additional discovery is warranted so that plaintiffs can show (or not) that the government engages in censorship by proxy.
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