In mid-July, White House Press Secretary Jen Psaki and Surgeon General Vivek Murthy appeared together at a press briefing where they issued recommendations aimed at curbing false information about COVID-19.
Those recommendations were aimed at individuals, families, news organizations, doctors and tech companies, among others. Some of the advice was fairly bland. For instance, Murthy urged individuals to vet information by checking to determine whether the source was credible. “If you’re not sure, don’t share,” he said
But the recommendations regarding Silicon Valley proved more controversial.
“We expect more from our technology companies,” Murthy said. “We’re asking them to operate with greater transparency and accountability. We’re asking them to monitor misinformation more closely. We’re asking them to consistently take action against misinformation super-spreaders on their platforms.”
Psaki later elaborated that the government was “flagging problematic posts for Facebook that spread disinformation.”
The officials' comments that day are now at the center of a lawsuit by mask critic Justin Hart, who was suspended by Facebook and Twitter over his posts.
The Twitter post that resulted in a temporary suspension reads as follows: “So the CDC just reported that 70% of those who came down with #COVID19 symptoms had been wearing a mask. We know that masks don't protect you ... but at some point you have to wonder if they are part of the problem.”
Hart alleges in a federal lawsuit filed last week that Facebook and Twitter, along with President Joe Biden and Murthy, violated the First Amendment.
“When the federal government admits to conspiring with social media companies to censor messages with which it disagrees, as it has in this case, both the government and private companies are guilty of unconstitutional viewpoint discrimination,” he says in a complaint brought in U.S. District Court for the Southern District of California.
He adds that he believes Biden and Murthy “directed” Facebook and Twitter to remove the posts.
Despite that claim, there's a big difference between the government making a recommendation -- which is what happened here -- and issuing an enforceable directive.
It's worth noting that a federal judge in California has already rejected claims similar to Hart's in a lawsuit brought against Facebook by the group Children's Health Defense, which was founded by Robert F. Kennedy, Jr. (That organization, which has been characterized as anti-vax, describes itself as advocating “for informed patient consent based on full disclosure of all relevant medical information.”)
Children's Health Defense alleged its First Amendment rights were violated when its posts were suppressed by Facebook, arguing that Facebook's policies were the result of “coercion” by the government.
U.S. District Court Judge Susan Illston in San Francisco dismissed the lawsuit earlier this summer, ruling that Children's Health Defense hadn't put forward any facts to show that the government coerced Facebook to suppress speech.
She specifically said in the ruling that the organization didn't allege that anyone in the government “directed” Facebook to take action regarding Children's Health Defense's page on the platform.
It's also worth pointing out that dozens of people, including former President Donald Trump, have sued social media platforms for taking down posts or removing accounts. So far, none of those cases have succeeded.
On the contrary, judges have repeatedly ruled that only the government, and not private social media companies, are bound by the First Amendment's prohibition on censorship.