The White House's 'Misinformation' Pressure Campaign Was Unconstitutional

My latest on Missouri v. Biden published in Newsweek.

BATH, UNITED KINGDOM - AUGUST 01: In this photo illustration the logo of US online social media and social networking site 'X' (formerly known as Twitter) is displayed centrally on a smartphone screen alongside that of Threads (L) and Instagram (R) on August 01, 2023 in Bath, England.

We expect to get a ruling from the Supreme Court by the end of today regarding the injunction in Missouri v. Biden. In the meantime, I’m sharing my latest piece on this case and the issue of government censorship, published yesterday in Newsweek and reprinted here with permission.

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I am one of five private plaintiffs in the landmark free speech case Missouri v. Biden. Earlier this month, the Fifth Circuit Court found that the government "engaged in a years-long pressure campaign designed to ensure that the censorship [on social media] aligned with the government's preferred viewpoints" and that "the platforms, in capitulation to state-sponsored pressure, changed their moderation policies." This resulted in the censoring of constitutionally protected speech of hundreds of thousands of Americans, tens of millions of times. Based on this finding, the Fifth Circuit in part upheld an injunction on certain public officials put in place by a district court.

Even when the government appealed the injunction to the Fifth Circuit, its lawyers hardly disputed a single factual finding from the court's ruling. A unanimous three-judge panel upheld the core findings that "several officials—namely the White House, the Surgeon General, the CDC, and the FBI—likely coerced or significantly encouraged social-media platforms to moderate content, rendering those decisions state actions. In doing so, the officials likely violated the First Amendment." The government again appealed the injunction to the Supreme Court, where we expect a ruling this week.

The government's claim that the injunction limits public officials' own speech is absurd misdirection. The government can say whatever it wants publicly; it just cannot stop other Americans from saying something else. Free speech matters not to ensure that every pariah can say whatever odious thing he or she chooses. Rather, free speech prevents the government from identifying every critic as a pariah whose speech must be shut down.

We are all harmed when our rulers silence criticism. Our government's self-inflicted deafness prevented officials and their constituents from hearing viewpoints that should have had a meaningful impact on our policy decisions. Instead, government censorship resulted time and again in the silencing of scientifically informed criticisms of, for example, harmful COVID policies. This allowed misguided and divisive policies to persist far too long.

The scope of the current government censorship regime is historically unprecedented. "The present case arguably involves the most massive attack against free speech in United States' history," the district court judge explained in his ruling. He went on, "The evidence produced thus far depicts an almost dystopian scenario... The United States Government seems to have assumed a role similar to an Orwellian 'Ministry of Truth'." The Fifth Circuit panel concurred: "The Supreme Court has rarely been faced with a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life."

The government's only attempted defense is that it was merely offering help to the platforms without jawboning them—"just your friendly neighborhood government agency." But the law is clear that even "significant encouragement" to censor protected speech—not just overt threats or coercion—is unconstitutional. We discovered that social media companies frequently tried to push back against government demands, before finally caving to relentless pressure and threats. The evidence we presented from 20,000 pages of communications between government and social media demonstrated both significant encouragement and coercion—as when Rob Flaherty, White House director of digital strategy, berated executives at Facebook and Google, dropping F-bombs, launching tirades, and browbeating the companies into submission—until they removed even a parody account satirizing President Joe Biden.

But the more insidious and powerful censorship happens when government pressures companies to change their terms of service and modify their algorithms to control what information goes viral and what information disappears down the memory hole. With sophisticated deboosting, shadowbanning, search results prioritization, and so forth, citizens do not even realize they are being silenced, and viewers remain unaware that their feeds are carefully curated by the government. Novelist Walter Kirn compared this to mixing a record: turn the volume up on this idea (more cowbell) and turn the volume down on that idea (less snare drum). The goal is complete top-down information control online.

We were dismayed to discover the number of government agencies now engaged in censorship (at least a dozen) and the range of issues they targeted: the State Department censored criticism of our withdrawal from Afghanistan and the Ukraine War, the Treasury Department censored criticism of our monetary policy, the FBI (surprise!) ran point on several censorship ops, and even the Census Bureau got in on the game. Other targeted topics ranged from abortion and gender to election integrity and COVID policy.

Much of the state censorship grunt work is outsourced to a tightly integrated network of quasi-private (i.e., government funded) NGOs, universities, and government cutouts employing thousands of people working round the clock to flag posts for takedown. But constitutional jurisprudence is clear: the government cannot outsource to private entities actions that would be illegal for the government itself to do. If a government agent hires a hit man, he is not off the hook simply because he did not personally pull the trigger.

So-called "misinformation research" at places like the Stanford Internet Observatory is a slippery euphemism for censorship—not only because Facebook executives admitted to censoring "often true" but inconvenient information under government pressure, but because these entities function as laundering operations for government censorship. Recent attempts to rebrand the work of the censorship-industrial complex with more anodyne euphemisms—"information integrity" or "civic participation online"—don't change the fact that this is not disinterested academic research, but cooperation in state-sponsored suppression of constitutionally protected speech, always in favor of the government's preferred narratives.

CISA, the government's censorship switchboard and clearinghouse agency housed within the Department of Homeland Security, described its work as protecting our "cognitive infrastructure"—i.e., the thoughts inside your head—from bad ideas, such as the ones advanced in this article. (Not kidding: YouTube recently censored a video of our lawyers giving a talk on our censorship case.) These ideas aren't throttled by government censors because they are untrue, but because they are unwelcome. There's a more accurate term for the government's takeover of our "cognitive infrastructure": mind control. I don't know a single American of any political persuasion who wants to be subjected to that.

Aaron Kheriaty, M.D., is the author of The New Abnormal: The Rise of the Biomedical Security State and a Fellow and Director of the Bioethics and American Democracy Program at the Ethics and Public Policy Center.

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