Federal Pressure on Big Tech to Censor COVID-19 ‘Misinformation’ Violates Constitution: Lawsuit

U.S. Surgeon General Dr. Vivek Murthy speaks during a press briefing in the Brady Briefing Room of the White House in Washington on July 15, 2021. Saul Loeb/AFP via Getty Images

The public government campaign to pressure Big Tech platforms such as Twitter to crack down on supposed misinformation violates the U.S. Constitution, according to a new lawsuit.

U.S. Surgeon General Vivek Murthy has repeatedly pressed Twitter and other platforms to suppress COVID-19 misinformation, while White House press secretary Jen Psaki has said President Joe Biden thinks it’s the responsibility of social media companies to “stop amplifying untrustworthy content, disinformation, and misinformation, especially related to COVID-19, vaccinations, and elections.”

Those and similar statements made clear the government was demanding action and was contemplating penalties against platforms that did not ramp up censorship, the 65-page suit asserts.

Murthy, the Department of Health and Human Services (HHS), and other Biden administration officials “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,” it says, adding, “That commandeering transforms the Surgeon General’s initiative into government action.”

Alleging the government effort led directly to their suspension from Twitter, three critics of lockdowns and other harsh policies imposed in response to COVID-19 sued HHS, Murthy, and HHS Director Xavier Becerra.

Scientist Mark Changizi, attorney Michael Senger, and stay-at-home father Daniel Kotzin want a federal court in Ohio to declare that the effort violated the First Amendment of the Constitution; that Murthy’s campaign against misinformation lacked statutory authorities; that a request by the government for Twitter and other companies to turn over information about “sources of misinformation” violates the Fourth Amendment since no warrant has been granted; and that Twitter and other companies are under no obligation to censor content and will not be penalized if they choose not to do so.

According to the suit, Changizi, of Ohio, was permanently suspended in December 2021 for a post stating influenza is more deadly than COVID-19 to children, that the vaccines have not been studied in the long-term, and that COVID-19 vaccines do not slow the spread of SARS-CoV-2, the virus that causes COVID-19.

“All of these views are shared by some scientists, including CDC Director Rochelle Walensky, who remarked in August of 2021 that the vaccines do not stop transmission,” the suit notes.

Kotzin, of Colorado, was suspended for posting that the pandemic would end when most people have been infected by COVID-19, a widely held view given vaccines rapidly wane in protection against infection and provide little initial shielding from the Omicron virus variant.

Senger, of California, was permanently suspended for alleging mitigation measures did not work against COVID-19. That belief was based on research, including a study published in January.

“It’s difficult to overstate the federal government’s cynicism in pretending to respect the First Amendment rights of American citizens while explicitly working with a company whose CEO says it ‘is not to be bound by the First Amendment’ in silencing American citizens on the most widely-used platform for political discourse,” Senger said in a statement.

Twitter and HHS did not respond to requests for comment.

Changizi, Kotzin, and Senger are being represented by the New Civil Liberties Alliance, which describes itself as a nonpartisan, nonprofit civil rights group.

“The Surgeon General apparently believes he can do whatever he wishes, even going so far as to commandeer technology companies to stifle the perspectives of those who differ from the government on COVID policies. But Congress has not given him the authority to coerce social media platforms into censoring the voices of those with whom he disagrees, and in fact it could not have given him this power,“ Jenin Younes, litigation counsel at the group, said in a statement. ”The Surgeon General’s demand has turned Twitter’s censorship into government action. Thus, this viewpoint-based suppression of speech violates our clients’ First Amendment rights to free speech.”