March 18, 2024 - 8:00pm
The US Supreme Court has been hearing arguments today on what could be one of the most consequential rulings related to free speech in decades. The case, Murthy v. Missouri, revolves around efforts by US Government agencies, including the CDC and the FBI, to influence the narrative around major events, such as Covid-19, by leaning on social media platforms to censor posts, topics and accounts.
The case — brought by two states, Missouri and Louisiana, as well as five individuals against the federal government — was in part animated by Elon Musk’s decision to publish the Twitter Files, a trove of emails, text and other company correspondence which showed the extent to which Government agencies ranging from the CDC to the CIA were in contact with managers at social media platforms over issues such as claims about the vaccine and the effectiveness of lockdowns.
The case could not be more significant for American society as far as freedom of speech is concerned. The reason is that at the heart of the case is what constitutes disinformation and what steps governments can take to combat it. In this case, many of the claims censored by social media companies at the behest of the Government turned out to be true. This includes widespread censorship of social media posts claiming that the Covid-19 vaccines carry health risks and that the lockdowns were not only ineffective but also damaging.
Republicans have alleged that the same dynamic was at play when social media giants censored the New York Post’s reporting on the now infamous Hunter Biden laptop story, arguing that deep state actors leant on the platform to block the coverage. Twitter executives involved in the decisions denied this, with one of them, Yoel Roth, saying “I believe Twitter erred in this case because we wanted to avoid repeating the mistakes of 2016.”
The irony, of course, is that “the mistakes of 2016” refers to the widespread allegations that Trump colluded with the Russian government to sway that year’s election, including on Facebook. None of these claims have been proved true — and some, like the effect of “fake news” on the election, have been debunked.
Nevertheless, the “Russiagate” narrative — itself one of the most sweeping disinformation campaigns of recent years — took a firm hold in American public life, in large part thanks to claims of disinformation that lay at the heart of the campaign.
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SubscribeThroughout history, the people arguing in favour of censorship have always been the bad guys.
While I am VERY pro free speech I don’t think that is true. The Brits and Yanks had censorship during WW2 yet we were the good guys. Or are you saying we were just the less bad guys?
Compared to the censorship and government propaganda imposed by the enemy, the British and US versions were mild indeed. The BBC in particular built up a level of national and global trust during WW2, and which it retained for many decades, thanks to the honesty of its reporting. It is legitimate in time of war to curtail the dissemination of some information which would assist the enemy or demoralise the population. But public trust, once won, is far more useful than censorship and propaganda, a fact now sadly forgotten by our political and medical leadership.
Well, whether Jim says it or not I will. In war there are no good guys and bad guys. There are enemies and allies but that’s not the same. After the conflict is over, history can judge who was good, bad, or otherwise. Consider that the USA put Japanese Americans in camps as well. That wasn’t as bad as the holocaust, not even close, but I wouldn’t call it ‘good’ either. The US and UK were allied with Josef Stalin, and he murdered more people than Hitler did, so yes, I’d say ‘less bad’ is a pretty charitable assessment. Countries do a lot of things in war that aren’t good, and it’s accepted because of the nature of warfare and the severity of the consequences of losing, not because we should all feel good about ourselves afterwards. On the contrary, the things done in wartime should be understood to be unacceptable at most any other time.
People don’t realize the hysteria caused by Pearl Harbor, where a sizeable portion of the Hawaiian-born and ex-patriot Japanese favored Imperial Japan and the same was quite naturally believed to be true of the Japanese-Americans on the West Coast. The panic on the mainland was so great in the beginning that the Army seriously considered withdrawing to the Rockies to make a stand.
“Consider that the USA put Japanese Americans in camps as well. That wasn’t as bad as the holocaust, not even close, but I wouldn’t call it ‘good’ either.”
No, it wasn’t “good.” But even mentioning it in the same sentence as Nazi death camps literally and intentionally slaughtering millions of civilians does a huge, huge disservice to both the logic of the comparison and, frankly, the deaths of those millions.
A world war would be an exception, if for the sole reason of literally protecting the lives of soldiers in combat and even civilians far behind the lines. Yes, we were just the less bad guys.
Very, very, much less bad guys! Imagine a Nazi dominated Europe – or world.
Maybe it’s true that bad guys censor, in a general sense, but I don’t think this Murthy v. Missouri case has bad guys censoring good guys. It’s more complex than that. There’s no good/bad binary here, but people trying to find a practical solution to a difficult problem.
It’s like when UnHerd censors people in the comments here. They don’t always get it right, but they are trying to keep out the nutters and the spam. UnHerd is not promoting a political agenda. Same with the social media platforms, with the government assist.
What are you talking about? The FBI, the CIA, and other govt agencies were directly pressuring big tech companies to censor Covid information.
misinformation
Misinformation? You mean like the extraordinary and far-fetched notion that Covid may have come from a lab? Wait a minute …
Who decides Robbie? The govt or me as an individual human being?
Covid does not give one natural immunity. Masks prevent spread. 6 foot rule. All gov sponsored misinformation.
No, this case was not about the FBI or the CIA. It was about people like Andy Slavitt and Tony Fauci spouting off a bit. People are playing this up as a big deal. It’s not. It’s a small deal, like people being banned by overzealous censors at UnHerd.
The social media platforms (other than Twitter) are too biased against conservatives in their censorship. But that is their doing. They’re not coerced into it by the government.
The FBI accepted Facebook’s offer to put dozens of agents on the payroll to facilitate cooperation with the surveillance state.
Aye. It’s one of the few reliable ways of separating the one from the other.
The new justice, a black woman, has come down hard on the side that government may ignore the First Amendment if it believes there is sufficient cause. This would vastly increase the power of the deep state.
Why did you feel the need to point out that the justice is “a black woman?”
Yes, the “ignorant” justice would have been more apt. And everyone would know who you were talking about.
Because that is why Joe Biden selected her. Is that wrong?
Perhaps because it was repeatedly said this was her most important qualification for the job
Even if the ‘woman’ part presumably came as something of a surprise to her.
Blackness almost always explains whatever the story is, from crime in the streets to political corruption in big cities (NYC, Chicago, Baltimore, etc) and why we see so many mixed marriages on TV commercials and absurd casting decisions in film and stage. Your next question?
Google C63 in Canada. Pure totalitarianism.
“If you think about what is the purpose of the Government, why do governments exist, it’s really to protect the health and safety and welfare of its citizens,”
The purpose of the government is to defend the rights of its citizens, whether those rights are being violated by fellow citizens or foreign enemies. To claim that the purpose of government is to protect the welfare of its citizens is to give the government unlimited license to do virtually anything and to infantilize its citizens. I’m perfectly capable of protecting my own health and safety and welfare, provided my rights are guaranteed. To paraphrase Benjamin Franklin, those who would give up essential rights to purchase a little temporary safety will possess neither rights nor safety.
Excellent post.
That’s too abstract for me. I can’t see any difference.
Put it like this: a pet owner is morally obligated to protect the welfare of his pet; he is not obligated to protect the rights of his pet, because a pet has no rights. A pet owner may take his cat to the vet without its consent, a pet owner may kennel his dog without its consent, a pet owner may sell his tortoise if he can no longer care for it without its consent–all in the name of the animal’s welfare…and would be perfectly justified in doing so. Yet there are steps that a government simply cannot take in the name of the welfare of either the community or the individual without doing irreparable and unjustifiable harm to their rights. Some of those rights are connected with safety and welfare, such as the right to live a life free of violence, hence the criminalization of acts such as assault and murder. But the rights are more fundamental. To use an extreme example, a government could eliminate violent crime by imprisoning every citizen in solitary confinement, but it would never be justified in doing so, because doing so would infringe upon the fundamental rights of the citizens.
Governments are compacts of mutual respect between free citizens designed to protect their rights from a Hobbesian state of nature. When a citizen violates that compact by infringing on the rights of his fellow citizens, we understand that the government is therefore justified in limiting his rights in return, in proportion to the severity of his crime, both for punitive and preventative purposes. When a government violates that contract, either it is impotent–because it is unable to stop others from violating its citizens’ rights–or it is tyrannical–because it itself is violating their rights. It is the obligation of a free government to liberate its citizens from the tyranny of other men who would violate their rights, whether those other men are criminals who violate rights of person or property, foreign powers who violate rights of nation and self-governance, or the government itself which violates all of the above plus fundamental civil rights such as the right to liberty or to one’s life.
To give, as many now do, a broad remit to government to preserve the individual’s “welfare”, whether couched in the language of rights or not, is to invite tyranny, since promoting welfare above any and all other considerations necessitates violating a citizen’s rights and reducing them to less than a citizen. It turns them into a pet.
One of the clearest explanations of the rights issue I’ve seen in any comment thread. I hope you teach somewhere.
As for the downvoters:
Which specific elements do you disagree with? And what is the basis for that disagreement?
I downvoted the post because I can’t figure out what Hippie’s view means in real life.
The woman quoted said she thinks we create governments to protect health and safety and welfare. Hippie takes issue with that, saying governments should protect rights instead.
How does all of that relate to the US Supreme Court’s expected ruling in Murthy v. Missouri? Does it matter why governments exist and whether governments should focus on individual rights?
An excellent summation. And going slightly off-topic, infertile couples, gay couples, single people claiming the right to have children through technology rather than the more traditional method reduces children to the status of pets.
John Stuart Mill could not have put it any better. Unfortunately I don’t imagine that many Washington bureaucrats have any idea who Mill was, much less any grasp of his ideas.
Then why is there a national welfare state with social security, NHS, health and safety, etc?
Great question, Robbie: The welfare state is precisely for those people who are disabled or otherwise unable to fend for themselves. If the welfare state is extended to those who ARE able to fend for themselves, then the pet analogy applies directly.
You have actually hit on the fundamental difference between the republican view of rights that the Founders envisaged, and a democratic view which says. “everyone should have an equal amount of treats”. The latter view ends up as communism, and we all know how that pans out.
You only answered part of that, but it does seem therefore in reality, that the state obviously does have responsibility for people’s welfare – firstly in times of need, but also in terms of medication, treatments, health advice, financial advice, the list is extensive. Many people don’t need it, but ultimately if one can park cynicism for a moment people’s lives are substantially improved with it.
*deleted as duplicate*
Ashley Rindberg says: “the case could not be more significant for American society as far as freedom of speech is concerned,” I disagree. In my mind, it’s not a significant case at all, and the lower courts should be reversed.
The problem here is not censorship where the government has an agenda and censors public comments to promote that agenda. Here it is the social media platforms who are doing the censoring. They adopt policies about what type of content to block (such as medical misinformation). They apply their policies in specific cases.
The government did not force the social media platforms to adopt policies or to apply them in specific cases. What did the government do? Sent to the social media platforms lists of accounts the government thought were violating the policies. They left it to the social media platforms to decide what to do. For most of the accounts on the lists, the social media platforms took no action.
Rather than political censorship, what the social media platforms were doing was censorship like that UnHerd does, to keep out nutters and spammers. Some government people (like Andy Slavitt) did get carried away in talking to the social media platforms, but there was no evidence of coercion by the government. The social media platforms chose what to do. They weren’t forced.
I predict the Supreme Court will reverse the lower courts 6-3 (Clarence Thomas, Samuel Alito, and Neil Gorsuch dissenting). The plaintiffs in this case should have aimed their ire, and their lawsuits, at the social media platforms. They are the censors, not the government.
Seriously? The first amendment specifically restricts the govts right to censor. Unherd is a private business. Two different countries, but same principles. Big tech companies exist at the regulatory whims of govt. What the govt calls friendly suggestions can and would be interpreted as coercion. Sure, these companies didn’t follow all of the suggestions, but there was a tsunami of requests and suggestions from multiple departments. It is completely inappropriate.
I’m a lawyer with a strong personal interest in content moderation policies by the social media platforms. That stems in part from being banned several years ago by a platform for my conservative views.
Since that time I’ve brought two legal actions myself, and followed many others, including this case Murthy v. Missouri. I’ve read the decisions of the lower courts in this case. I’ve read the briefs to the Supreme Court (including the amici). I listened live to the oral arguments.
My sympathies in this case lie with the plaintiffs. I don’t think their posts should have been censored. But their beef is with the social media platforms, not with the government. The government didn’t censor the plaintiffs, and there is no evidence of governmental coercion in the normal sense. The issue is whether the government can bring pressure short of coercion, and the answer will (I think) be yes, it can.
This was not a good case for the plaintiffs to bring. The district court opinion was sloppy and its injunction too strong. Supreme Court justice Sonia Sotomayor chastised the lawyer for Louisiana for falsely stating some key facts, and he apologized, but he was relying on the district court’s statement of facts in his opinion. That judge was the bungler, not the lawyer.
The appeals court did a better job than the district court, narrowing the injunction, but its opinion too is weak. It expands the concept of coercion to include “significant encouragement”, but that’s a concept it invents without much, if any, support.
My take on the case follows that of most observers. The Supreme Court will reverse the lower courts, on grounds that will not change the basics of free speech rights. The plaintiffs will lose. Things will continue as they have. The government will continue to work with the social media platforms, and they will continue to moderate content as in the past.
That’s unfortunate. There is a bias against conservatives at the social media platforms, which heavily lean liberal. Former British politician Nick Clegg heads up content moderation at Facebook. Former FBI honcho Jim Baker was general counsel at Twitter. (Of course, Twitter is now X, and under Elon Musk, things have changed there.) Former Obama press secretary Jay Carney was a top policymaker at Amazon.
So if we want content moderation to be fair, we have our work cut out for us. We have to fight our battles carefully. We can’t ignore the fact that content moderation is essential on any social media platform. Without it, the discussion quickly degenerates. But content moderation is really hard to do. Even with the best of intentions, mistakes will be made. (As is seen daily here with UnHerd’s reader comments.)
I wrote a blog post once on how the Covid-19 virus likely originated in the Wuhan Institute of Virology that received a slew of comments. Mostly nutters. There is no virus, it’s all a hoax, many said. The vaccines are killing millions, said others. If there was any insight in any of the comments, I missed it. Initially pleased, when I read them I finally decided to delete the whole mess. Too little wheat amongst too much chaff.
Overall, though, I’m optimistic — I think we can make progress in how social media platforms moderate content. But cases like Murthy v. Missouri hurt, they don’t help. The plaintiffs in this case ignored reality, and when they get shot down for it (as they will) we all lose ground. Better to look to the social media platforms as the ones who need to moderate their moderation, not the government.
Thanks for this Carlos. Very detailed, reasonable and persuasive response. I still argue there is a fundamental power imbalance between govt and big tech. Even if the govt asks nicely for content moderation, it is still a form of coercion because of the govt’s regulatory power. Section 230 looms large in any discussion and is really an anvil hanging over the head of social media companies. The relationship is different than it was 20 years ago between govt and traditional media. Back then, there were so many outlets, the govt couldn’t possibly coerce even a small fraction of them. Today, there are basically three or four and it makes govt intimidation much easier and more realistic.
I agree there were a lot of nutters out there making wild claims about Covid. I happen to think vaccines likely saved million of lives, but the rollout was unethical, dishonest and immoral. Young, healthy people were coerced into taking a vaccine they didn’t need for a reason that was dishonest – to create herd immunity to save granny. However, lots of people think the vaccines were terrible and didn’t help anyone. Even more thought the vaccine was effective for kids and did create herd immunity. Every single one of these arguments have at least a kernel of truth and needed to be publically debated.
Any prove that vaccines saved million of lives?
So how come that we have excess deaths in so many countries?
We can argue what percentage is attributable to lack of medical care due to lockdowns and what due to side effects of the vaccines, but excess deaths, especially in younger cohorts, are terrible indictment of covid vaccines.
I think you’re making my point for me. An 80 year with health issues was absolutely right to take the vaccines
Problem is that Big Tech platforms claim that they are not publishers when challenged about allowing content harmful to children etc.
But we know now, based on Twitter Files, that they censored content at the instigation of the government.
Naive view. Absence of evidence does not lead to the conclusion no crime was committed. Especially when the perpetrator has a high motivation to commit the crime. It may mean the evidence is too hard to uncover.
‘What did the government do?’
Isn’t determining this, and if what they did is OK, the whole point of the case?
The principle of democracy is that the government is ‘us’. When the people employed in government start to believe they are separate from ‘us’ and can choose to command and control ‘us’, we are no longer in charge, and it is no longer a democracy.
It is even more dangerous when a conceited gov believes it does represent us? Or even when it does when we are considered as numbers merely, each looking out for himself?.
I have yet to see the evidence – unless you count the obvious point, that no one ever denied, that all vaccines carry health risks. Then there are all the social media posts claiming that Ivermectin or bleach or vitamin D could cure COVID. Of course Unherders have an iron conviction that everything that was done about COVID was wrong and damaging and a horrible plot against their freedom, but then, they have had that conviction all along, from before anybody had any evidence at all.
If you have any evidence that could convince someone who was not anti-lockdown or anti-vaxx from the word go, could you please publish it? It would be great go move beyond the shouting match and the of course I was right all along!!! to some kind of agreement.
Surely the government led censoring by social media/main stream media of the Great Barrington Declaration (written by Professors of epidemiology/medicine at Yale, Oxford and Harvard) tells you something went wrong with our democracies? The GBD argued (based on well established normal principles of epidemiology) that we should not lockdown everyone but instead just shelter/protect the vulnerable and let the rest of society get on with normal life. This valuable (and now seen as correct) point of view was supressed and the writers – even though they were leaders in their academic field – were shunned by colleagues and the world as a result. Sigh! It really is like the propaganda psyop described in George Orwell’ Animal Farm.
The big problem with the Barrington declaration was that they claimed it was actually possible to protect the vulnerable with their strategy. Which remains extremely unlikely, and completely unsupported by evidence. If you could tell me who sees this valuable point of view as correct, and what evidence they are basing it on, we might get somewhere. The people who were shouting they were right then and are shouting they are right now are not going to convince me.
Can you not see that your opinion as to whether the Barrington Declaration was supported by evidence or not has absolutely nothing at all to do with the issue at hand? I don’t think your view about Hillary Clinton’s laptop is supported by evidence, but that doesn’t mean I think I or anyone else has any right to suppress it.
Different discussion. OK, her main point is about the censorship. But to get there she is just taking for granted that the Barrington lot were right and making a constructive contribution. And since I disagree on both points I am not going to let that one pass.
Start with the CDC’s own VAERS database? Pfizer’s own test data? Claims that are manifestly untrue about the level of testing performed? Cancelling from social media anyone who asserts that the vaccines are unsafe? The fact that Pfizer, Moderna et al were free from litigation?
If you have ever worked on complex systems, in technology or medicine, you know that claiming “100% safe” would itself be a bald-faced lie. The most complex server platforms today operate at 7 9’s of availability, or 99.99999% available. That is still not 100%. It leaves a few minutes a year. You don’t get to claim “completely safe” unless you can prove it, and what we actually observed in the last 4 years was that anyone who said they were adversely affected by the COVID vaccines were silenced.
So you have this exactly backwards. There was no convincing proof that the vaccines were safe (as if that were even possible), only the ridicule of weird remedies (drink bleach) and full government and media pressure to silence scientific dissent. An honest government would have published risks widely and let people decide for themselves.
VAERS again? The databases that record unanalysed adverse events signalled by anyone to have happened after vaccination, sometimes including traffic accidents?
If you already know the answer you do not need evidence. If this is the best you have, nothing you can say will convince me.
By the time we were six months into it (and certainly by now) there was plenty of information available to compare and contrast the results between different States, each with different lockdown and masking rules. Or between the different nations of Europe. (The NYTimes published an up-dated “dashboard” on the opening page everyday for more than two years.) It was obvious that lockdowns and mask mandates had no significant effects on hospitalizations or deaths.
The effectiveness of vaccinations was more difficult to understand.
And, of course, the potential harms were never mentioned.
You have a problem here. When this was actually happening a majority of specialists and informed people believed that the lockdowns, not to speak of the vaccinations, were the right and absolutely necessary thing to do. Then there was a minority who were absolutely convinced that this was total nonsense. My conclusion is that the best course was not obvious – to either side – and I would wait till enough evidence was in for a reasoned conclusion before I made a final judgement. Which reasoned conclusion has still not arrived, BTW. If you really think that it was obvious to any idiot what should be done, you need to explain why most people thought otherwise. Does it just so happen that everybody who disagrees with you is a congenital idiot? Or do you think there is a world-wide conspiracy bent on forcing you to wear a piece of cloth on your face for some nefarious purpose? In either case I would say that you are clearly impervious to reasoned argument.
I doubt it. More likely ‘the mistakes of 2016’ refers to all the press furore about Hilary Clinton’s laptop. Ultimately it came to nothing – just like Russiagate – but revelations came out just the right few weeks before the election to dominate the final debating and weaken Hilary. Arguably that won Trump the election. Nothing illegal in running smear operations, of course, but when the news of Hunter Biden’s laptop came out – just the right few weeks before the election to dominate the final debating – the media decided that they were not going to help Trump win a second time in a row. Why should they have?
No reason at all, if they considered themselves first and foremost as agents of and propagandists for the Democrats (along with associated never-Trumpers in the GOP).
Every reason, if they wished still to be considered as reliable *news* sources. But apparently they have long since given up that fond conceit.
So: no, no reason at all.
Problem with Hilary Clinton was her use of non government email server as Secretary of State.
It is clearly illegal and anyone junior would loose job or worse if found out doing so.
OK. Would you admit, then, that Trump’s false declarations of his net worth to get better loan conditions were clearly illegal and the fines of several hundred million are entirely justified? Or do you start talking about ‘victimless crimes’ when it is your friends that are being accused?
That the Supreme Court even took this case tells you it’s only a matter of time until the 1st Amendment becomes just words on a page.
“(P)roponents argue that a core Government function is to POLICE INFORMATION.” Emphasis added.
We are in deep, deep trouble, because these barely disguised authoritarians are in power everywhere and determined to use whatever means necessary to stay there, including – surprise – policing information.