Did government overstep on COVID ‘misinfo’? Courts weigh in.

A few weeks after he was dubbed “The Pandemic’s Wrongest Man” by The Atlantic, Alex Berenson’s name came up in an April 2021 White House meeting with Twitter representatives.

Officials were keen to address how people were being influenced online against the COVID-19 vaccine, with only about 4 in 10 people having gotten the shot. Senior White House adviser Andy Slavitt said it didn’t seem like Twitter was enforcing its rules against Mr. Berenson, citing an MIT data visualization that showed him as the “epicenter” of misinformation around the vaccine.

A former New York Times investigative journalist turned COVID-19 contrarian, Mr. Berenson frequently linked to scientific studies and government data. But critics said his posts were dangerously misleading, often leaving out key context. 

Twitter followed up a week or two later. They would not be removing Mr. Berenson.

Government officials’ frustration with Twitter and other social media platforms intensified, boiling over in mid-July 2021 when President Joe Biden said “they’re killing people” – though he later said he meant specific users, not the platforms themselves. Hours later, Mr. Berenson’s Twitter account was suspended for the first time. By August, he was kicked off entirely. 

Mr. Berenson sued Twitter, and was later reinstated after a settlement. But now, he is suing current and former administration officials as well as a Pfizer board member and the company’s CEO for allegedly working together to get him censored. His case also argues that he lost out on the opportunity to promote his November 2021 book, “Pandemia,” to his Twitter audience of more than 300,000.

Mr. Berenson’s case is one of several lawsuits and congressional investigations alleging government censorship on social media, not only regarding the COVID-19 vaccine but also on topics such as the pandemic’s origins, the Hunter Biden laptop story, and allegations about the 2020 presidential election. In a related but broader free speech case, Missouri v. Biden, an appeals court ruled on Friday that the government had indeed run afoul of First Amendment rights by coercing social media platforms to suppress disfavored speech. That case is likely to go to the Supreme Court. 

These lawsuits represent the first major pushback against the Biden administration’s efforts to curb COVID-19 misinformation. They could have broader impacts on everything from public health officials’ ability to lead in times of crisis to what users see on social media. 

The White House and the Department of Justice, which is representing the administration in both cases, both declined to comment for this article. But the DOJ argues in court documents that the plaintiffs did not prove a causal link between government officials’ conversations with social media companies and the platforms’ misinformation policy decisions. Moreover, allies say, the government has not only the right but the responsibility to speak out on issues affecting the public welfare.

“I think governments have a duty to inform their citizenry,” says Nina Jankowicz, who headed the Biden administration’s short-lived Disinformation Governance Board and was initially named in the Missouri v. Biden case. 

“I am not in favor of any sort of censorship from the government – deciding what is true or false and then issuing penalties,” she adds. But she takes issue with comparing posts on social media to protests in a public square. “Individuals don’t have a right to say falsehoods at scale to millions of people, or direct them precisely to the people who are going to be most vulnerable to these narratives.” 

Fallout over the censorship of dissenting views on COVID-19, some of which turned out to be correct, has already damaged trust in public health officials. It may also spur Congress to erect new guardrails circumscribing how government can interact with Big Tech, which could limit the ability to curb misinformation and disinformation. And the courts’ rulings could have a profound effect on future scientific and societal debates, not only surrounding things like vaccines but also on other divisive issues, such as climate change. 

“A prosperous, scientifically advanced society depends on the right to dissent, especially in science and medicine,” says Philip Hamburger, a Columbia law professor and head of the New Civil Liberties Alliance, which is representing four of the five individual plaintiffs in Missouri v. Biden. “Censorship not only suppresses some Americans, it also leaves the rest of us blind.” 

Is a government “request” coercive? 

Three days before Mr. Slavitt, a senior adviser on the White House’s COVID-19 response, brought up Mr. Berenson with Twitter on April 21, 2021, he had posed similarly tough questions to Facebook executive Nick Clegg. In an email, Mr. Clegg summarized their hour-long call for his colleagues, writing that Mr. Slavitt was “outraged” that Facebook had not taken down a highly ranked meme that he said would inhibit confidence in the COVID-19 vaccine. The email came from a trove of internal Facebook documents obtained by House Republicans who, angered by what they believe to be government-orchestrated suppression of conservative viewpoints, last month signed on to the Missouri suit. 

“I countered that removing content like that would represent a significant incursion into traditional boundaries of free expression in the US,” wrote Mr. Clegg. But he concluded by recommending that Facebook take stock of its relations with the White House.

While social media companies repeatedly rebuffed such requests from the administration, the backdrop was a growing push from the White House and Congress to change a law known as Sect. 230 that could have profound implications for platforms’ operations, influence, and bottom line. Under the current law, they cannot be held liable for third-party content on their sites – a government-provided immunity that has enabled them to grow into massively influential and profitable entities.

On July 20, 2021, White House communications director Kate Bedingfield said on MSNBC that the White House was reviewing Sect. 230 and “assessing whether social media platforms are legally liable for misinformation spread on their platforms.”

“Certainly, they should be held accountable,” she said. 

Mr. Clegg recommended that Facebook consider making some course corrections, “given the bigger fish we have to fry with the Administration.” 

A key question in both lawsuits is whether the requests officials made of social media platforms, juxtaposed against the administration’s ability to affect their bottom line with policy decisions, amount to coercion. 

“You don’t even need to say, ‘There will be consequences’ when you’re in the White House,” says Mr. Berenson.

But proving coercion is difficult, and the government’s lawyers have argued that neither case identifies any concrete demands that were backed by threats. They also point to the fact that the platforms repeatedly rebuffed government requests to suppress certain content, arguing that that proves they were acting independently. 

While White House officials did urge platforms to remove content they considered problematic, and expressed frustration that social media companies were not being fully transparent about their algorithms and data, exchanges that have since been made public also suggest the government was genuinely trying to understand a highly complex, technical issue.

“If people do their own homework, we ought to trust them. Not everyone will choose to get a vaccine,” said Mr. Slavitt, according to internal Facebook notes of an April 14, 2021, meeting. He noted that he didn’t regard news about the Johnson & Johnson vaccine being temporarily suspended for safety reasons as misinformation, or even problematic.

What did concern him, he said, was people being “unduly influenced” – including by those who misrepresent data, knowingly or unknowingly. “We want to know the most effective way to respond.”

Much of the debate has focused on the pros and cons of content moderation – but some experts say that approach has limited value, given that most misinformation is seen shortly after posting. Laura Edelson, a computer scientist who worked on the Virality Project, which tracked COVID-19 misinformation and shared findings with the government, says a better solution lies in designing improved algorithms. That would enable platforms to combat the spread of misinformation without infringing on free speech, she adds. 

“I think people need to stop thinking about these two goals as being in tension, because I just don’t think that they are,” she says.

What does this mean societally?

Missouri v. Biden alleges that the government coerced social media platforms to suppress dissenting viewpoints – including those expressed by plaintiffs Martin Kulldorff and Jay Bhattacharya, epidemiologists at Harvard and Stanford, respectively. 

One of the main examples they give is “an organized campaign” against the Great Barrington Declaration, which they co-wrote with Oxford epidemiologist Sunetra Gupta. Published in October 2020, it called for replacing broad government-mandated COVID-19 restrictions with a more narrow focus on protecting vulnerable individuals, while lifting the lockdowns for everyone else to avoid other harms. It has since been co-signed by nearly 1 million people, including more than 62,000 scientists and health care professionals.

About a week after publication, the co-authors noticed that Google’s search results led with criticism of the declaration instead of the declaration itself, despite other search engines still showing it as a top hit. Facebook took down the Great Barrington Declaration page for a week. Reddit removed links to it.

Declarations from Drs. Kulldorff and Bhattacharya note that these actions were in line with a behind-the-scenes request from the head of the National Institutes of Health, Dr. Francis Collins, to Dr. Anthony Fauci and another colleague for a “quick and devastating published take down” of the declaration’s premises, though there’s no evidence that the officials contacted those platforms about the matter specifically. Both epidemiologists say they were also personally censored on social media. 

“The United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth,’ ” wrote Judge Terry Doughty of Louisiana when he issued a preliminary injunction July 4 that barred dozens of agencies and officials from working with social media platforms to address protected free speech. “Each United States citizen has the right to decide for himself or herself what is true and what is false.”

The government appealed, but on Sept. 8 the Fifth Circuit partially upheld the injunction, blocking certain federal entities and officials from “significantly encourag[ing]” social media companies to suppress content. These officials included Surgeon General Vivek Murthy and the successors to Mr. Slavitt and then-Director of Digital Strategy Rob Flaherty – all of whom are also defendants in Mr. Berenson’s case.

In the Berenson case, the defense filed a motion to dismiss last month, arguing that Mr. Berenson did not prove a causal link between federal officials’ requests and Twitter’s decision to remove him on Aug. 28, 2021. On that same day, former Food and Drug Administration chief Scott Gottlieb, who left government and became a Pfizer board member, had contacted Twitter about a Berenson tweet which said that the COVID-19 vaccine doesn’t stop infection or transmission and has a “terrible side effect profile.” “And we want to mandate it? Insanity,” Mr. Berenson wrote. 

He was deplatformed that day. Less than two weeks later, President Biden announced vaccine mandates for all federal employees and large businesses, and extended mandates for health care workers to cover 17 million people. 

A decision on the defense’s motion to dismiss Mr. Berenson’s case is expected later this year. 

Dr. Ezekiel Emanuel, a bioethicist who advised the Biden transition team on COVID-19 issues including misinformation, says there’s not a simple answer in how to weigh the value of a robust public debate that includes fringe views against a more controlled information environment that may turn out not to be 100% correct.

“The problem is, first of all, the facts do change,” he says, noting that frequently in fast-moving situations, people are dealing with incomplete data. 

Secondly, “the interpretation of data is, in science, often contested – that’s the nature of research and science,” he adds, noting that today everyone, not just experts, can read scientific journals as soon as they’re published. “What the appropriate response is – even if we agreed on the facts – is also highly contested.”

Critics say that when the government tries to become the arbiter of truth, particularly if it is censoring not only factually untrue statements but also misleading or politically inconvenient ones, citizens lose trust. And while COVID-19 misinformation policies might have mostly irked conservatives, liberals would likely care just as much if the same approach were taken to issues that matter more to them. 

“The government, every government, always has an incentive to silence people with messages that they don’t like – that’s why we have a First Amendment,” says John Vecchione, one of the lead counsels in the Missouri case. “Would you want your worst political enemy to have the power that the government used in this case against you and your posts?”