Meta’s U-Turn on Censorship: A Win for Free Speech or Too Little, Too Late?
Meta announced that it will discontinue its fact-checking program, which it will replace with a Community Notes model akin to that utilized by X (formerly known as Twitter). Free speech proponents are celebrating this policy change as effectively ending viewpoint-based censorship on Meta’s social media platforms (Facebook, Instagram, and Threads). To accompany Meta’s written statement, Mark Zuckerberg, the company’s CEO, released a videorecorded declaration acknowledging that content moderation is subject to human bias and error, and thus results in censorship of posts that should not be suppressed. While governments and media have pushed for more and more content moderation on privately owned social media platforms under the guise of combatting dangerous “mis-” and “disinformation,” he explains, they are prone to doing so for political reasons, ultimately silencing legitimate debate. The fallibility of censors and inevitability of political motives factoring into government-influenced censorship determinations are, of course, two of the main reasons the Constitution’s framers included the First Amendment in the Bill of Rights.
The most explosive revelation comes near the end of the five-minute video, when Zuckerberg blames United States government for Meta’s recent failure to protect free speech and expression: “that’s why it’s been so difficult over the past four years, when even the US government has pushed for censorship. By going after us and other American companies, it has emboldened other governments to go even further. But now we have the opportunity to restore free expression[.]” Zuckerberg’s reference to the past four years implicitly confirms that the company experienced—and bowed to—pressure from the Biden Administration that it did not under the Trump Administration.
Zuckerberg’s concession—that the federal government, especially the Biden Administration, has unconstitutionally coerced, pressured, encouraged, and collaborated with social media companies to censor First Amendment protected speech—is at the epicenter of several NCLA cases. In March of 2022, we brought Changizi v. Dep’t of Health and Human Services on behalf of three Twitter users who had been censored on the platform for challenging Covid-19 restrictions. They alleged that government actors were responsible for suppression of their speech, based on public statements that the Surgeon General and others in the Biden Administration had made threatening to hold social media companies accountable if they did not do more to suppress “misinformation” about Covid-19. The district court dismissed the case for lack of standing, agreeing with the government that the plaintiffs had failed to show that they were censored due to government intervention, as opposed to the platforms’ independent decision-making processes. The court rejected the Changizi plaintiffs’ claim that they were at least entitled to discovery based upon the government defendants’ public announcements, without which it would be impossible for them to demonstrate direct causation.
This foreshadowed the Supreme Court’s determination in Murthy v. Missouri last June, in which NCLA represented four individual plaintiffs, including Great Barrington Declaration co-authors Drs. Jayanta Bhattacharya (currently nominated to lead the National Institutes of Health) and Martin Kulldorff, alongside the States of Missouri and Louisiana. Initially, the plaintiffs obtained a preliminary injunction in the district court, most of which the Fifth Circuit upheld. Both courts observed that the government conduct in question was unprecedented, and not in a good way: the district court described it as “arguably the most massive attack against free speech in United States’ history.” The Fifth Circuit acknowledged that there was little precedent to guide its decision as “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.”
Yet the Supreme Court concluded, in a 6-3 decision, that the lower courts’ grant of a preliminary injunction was improvident, as the plaintiffs had not adequately demonstrated that their past censorship had resulted from government action and regardless, they had not eked out a showing of likely future injury. Ironically, in concluding that the plaintiffs lacked standing, the Court complained that
without any concrete link between their injuries and the defendants’ conduct, [they] ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics. This Court’s standing doctrine prevents us from exercising such general legal oversight of the other branches of Government.
This reasoning is rather circular: the Court essentially refused to conduct the review necessary to grasp the government’s influence on social media companies’ content moderation policies and practices, on the grounds that the plaintiffs did not show that the government’s influence had resulted in their censorship. As Justice Alito warned in a scathing dissent, the majority “shirks [its] duty and thus permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think.”[1]
The new revelations from Meta illuminate the wrongheadedness of the Murthy decision—and vindicate Justice Alito and his fellow dissenters, Justices Thomas and Gorsuch. Zuckerberg’s statements corroborate the mountains of evidence in the record (and evidence that surfaced later, through a congressional investigation) unequivocally revealing that Meta, X, Google, YouTube, and other online platforms changed their content moderation policies in the face of government pressure, and interpreted existing policies more generously to accommodate government demands.
While it is nice that Zuckerberg has chosen to embrace free expression now that the political winds have shifted, it cannot be overlooked that he remained silent about the government’s interference in censorship on his platform for years, when he perceived no benefit to fighting back. Americans’ free speech rights should not hinge on the will of a handful of billionaires to stand up to the powers that be. Unfortunately, the Supreme Court has sent the message to the next administration that finds censorship an appealing prospect, as Justice Alito lamented: “[i]f a coercive campaign is carried out with enough sophistication, it may get by.” In short, while Meta’s policy changes are a step in the right direction, they are not enough to preserve Americans’ free speech rights in the digital age—especially in the shadow of the Supreme Court’s decision in Murthy.
[1] Contrary to media reports, the Plaintiffs in Missouri continue to fight on in the district court, which has recently given them the opportunity to conduct discovery in order to verify their standing.
January 10, 2025