The Biden-Big Tech Collusion Case

Big news on big tech and free speech. A federal judge ruled Tuesday that government officials can’t coerce social-media platforms to do what the Constitution forbids the government from doing.

Missouri and Louisiana, joined by scientists and conservatives whose posts were censored, sued to protect their First Amendment rights. The issue in Missouri v. Biden isn’t whether social-media platforms are government actors, but whether government officials can be held responsible for their censorship. Judge Terry Doughty ruled they can and his 155-page opinion describes disturbing coordination between the government and tech firms to suppress unpopular views, especially on Covid-19.

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White House officials and public-health agency leaders held biweekly meetings with tech companies over how to curb the spread of misinformation during the pandemic. Former White House director of digital strategy Rob Flaherty and Covid-19 adviser Andy Slavitt were in constant contact with social-media executives, as former press secretary Jen Psaki acknowledged.

“We are in regular touch with these social-media platforms” and are “flagging problematic posts for Facebook that spread disinformation,” Ms. Psaki said on July 15, 2021. But officials weren’t merely flagging false statements. They were bullying companies to censor anything contradicting government guidance.

On March 15, 2021, Mr. Flaherty accused Facebook of “hiding the ball” on the company’s efforts to combat vaccine “borderline content.” He repeatedly lambasted Facebook as a “top driver of vaccine hesitancy.” In one email he wrote that “I care mostly about what actions and changes you are making to ensure you’re not making our country’s vaccine hesitancy problem worse.”

Facebook employees typically responded with solicitude, insisting they were doing their best to reduce the spread of content the government found problematic. But White House officials weren’t satisfied because the companies hadn’t booted the supposed offenders from their platforms.

Ms. Psaki said Facebook’s censorship actions were “clearly not sufficient.” On July 16, 2021, the President accused social-media companies of “killing people,” though the White House later claimed he was referring to individuals spreading vaccine misinformation.

Two days later a Facebook executive reached out to Surgeon General Vivek Murthy : “I imagine you and your team are feeling a little aggrieved—as is the [Facebook] team, it’s not great to be accused of killing people—but as I said by email, I’m keen to find a way to deescalate and work together collaboratively. I am available to meet/speak whenever suits.”

Judge Doughty concludes from all this that “the public and private pressure from the White House apparently had its intended effect.” All 12 people dubbed the “Disinformation Dozen” by the Center for Countering Digital Hate were censored, and pages, groups and accounts linked to them were removed. On July 16, Twitter also booted Covid vaccine skeptic Alex Berenson,

Some Covid claims flagged by the White House were clearly erroneous, such as that vaccine ingredients can cause people to become magnetic. But many are scientifically debatable—for instance, that vaccines can cause Bell’s palsy and multisystem inflammatory syndrome in children, and that Covid had a 99.96% survival rate.

The private intimidation was amplified by public threats to use antitrust action and regulation if tech companies didn’t follow orders. Ms. Psaki warned on May 5, 2021, that platforms could face “legal consequences” if they didn’t do more. White House communications director Kate Bedingfield warned on July 21 that the White House was weighing whether social-media companies should be legally liable for misinformation on their platforms and whether to amend Section 230 to ensure platforms “be held accountable.”

The Biden Administration claims government officials were merely making “recommendations,” not demands. But the threats were explicit, and the companies knew they could face government investigations and punishment if they disobeyed.

The government also claims officials’ statements are protected speech. But as the judge notes, “It was not the public statements that were the problem. It was the alleged use of government agencies and employees to coerce and/or significantly encourage social-media platforms to suppress free speech on those platforms.”

The link between government and private censorship at its behest isn’t well developed under law, so this could be a major test case. The plaintiffs are doing a public service by teeing up whether government can use the cover of private business to censor views it dislikes.