Government Pressure on Covid-Era Speech a Dangerous Precedent

In oral arguments on Monday, the U.S. Department of Justice urged the Supreme Court to let government officials, including federal law-enforcement agencies, tell social-media company officials, in secret, what content to delete. In the case of Murthy v. Missouri, the central question is when government coordination with social media violates the First Amendment. The government’s lawyer conceded that the government’s intense, multi-agency pressure on social-media companies to remove content and accounts was unusual, but he effectively threw tech companies under the bus, saying that the companies were voluntary partners in the government’s fight against “misinformation.” As former CIA analyst Martin Gurri has remarked, “There’s no precedent for what’s going on unless you go back to Franklin Roosevelt’s wartime censorship.”

The people suing the government, including former Harvard professor Martin Kulldorf, allege that government officials coerced YouTube, Twitter, and other tech companies to remove their online posts and commentary, including criticisms of the government’s Covid-19 policies. The plaintiffs presented damning evidence, including internal government emails and testimony from government officials. They documented federal officials’ immense pressure on social-media companies, including profane emails and vague threats from White House officials to Facebook officials to remove vaccine “disinformation,” as well as messages from the FBI to several social-media companies with spreadsheets of accounts and content that the agency wanted removed. The FBI followed up on its requests at quarterly meetings with companies, keeping internal notes of which companies were complying with FBI demands. Perhaps the messages were innocent — we may never know because the FBI used encrypted communications and has not revealed their contents.

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Brent Skorup

Brent Skorup is an attorney and research fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies.

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In oral arguments on Monday, the U.S. Department of Justice urged the Supreme Court to let government officials, including federal law-enforcement agencies, tell social-media company officials, in secret, what content to delete. In the case of Murthy v. Missouri, the central question is when government coordination with social media violates the First Amendment. The government’s lawyer conceded that the government’s intense, multi-agency pressure on social-media companies to remove content and accounts was unusual, but he effectively threw tech companies under the bus, saying that the companies were voluntary partners in the government’s fight against “misinformation.” As former CIA analyst Martin Gurri has remarked, “There’s no precedent for what’s going on unless you go back to Franklin Roosevelt’s wartime censorship.”

The people suing the government, including former Harvard professor Martin Kulldorf, allege that government officials coerced YouTube, Twitter, and other tech companies to remove their online posts and commentary, including criticisms of the government’s Covid-19 policies. The plaintiffs presented damning evidence, including internal government emails and testimony from government officials. They documented federal officials’ immense pressure on social-media companies, including profane emails and vague threats from White House officials to Facebook officials to remove vaccine “disinformation,” as well as messages from the FBI to several social-media companies with spreadsheets of accounts and content that the agency wanted removed. The FBI followed up on its requests at quarterly meetings with companies, keeping internal notes of which companies were complying with FBI demands. Perhaps the messages were innocent — we may never know because the FBI used encrypted communications and has not revealed their contents.