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Partners in Crime

Jenin Younes
Litigation Counsel

August 20, 2023

In July of 2021, Meta’s head of global affairs, Nick Clegg, emailed a Facebook vice president in charge of content policy, asking why the company had removed from Facebook, rather than demoted or flagged, claims that COVID-19 was “man-made.” Rice responded, “Because we were under pressure from the [Biden] administration and others to do more and it was part of the ‘more’ package.” He concluded his reply to Clegg with an acknowledgment of error: “We shouldn’t have done it.”

These emails make clear that the company had removed posts discussing the lab leak theory not pursuant to their own judgment and policies, but because the Biden administration pressured them to do so. This is a remarkable set of facts, given that in the two years that have passed since that exchange, the lab leak theory has gained credibility in mainstream circles, including within the Biden administration. In direct opposition to their 2021 edicts calling it “misinformation,” the Biden administration recently halted funding to the Wuhan Institute of Virology over concerns that the COVID-19 virus originated there.

The discovery of Clegg’s and Rice’s emails—along with a number of other internal Meta documents the House Judiciary Committee’s Select Subcommittee on Weaponization of the Federal Government obtained late last month—was a pivotal development in what has turned into a yearslong investigation of unconstitutional federal government entanglements in social media platforms’ content moderation.

A case known as Missouri v. Biden has been driving the litigation component of this inquiry. The plaintiffs allege that various federal agencies and the White House pressured, coerced, and encouraged platforms to censor certain disfavored views on subjects including COVID-19, the 2020 election, and the Hunter Biden laptop story, in violation of the First Amendment. While other lawsuits alleging First Amendment violations based on government involvement in social media censorship have been filed over the past two years, Missouri has proven uniquely successful. Originally brought by the attorneys general of Missouri and Louisiana, individual plaintiffs, including co-authors of the Great Barrington Declaration Jayanta Bhattacharya and Martin Kulldorff, joined the lawsuit.

When the complaint was filed in May of 2022, the main proof the Missouri plaintiffs had were public statements from high-ranking members of the administration, including former White House Press Secretary Jennifer Psaki, Surgeon General Vivek Murthy, and President Biden himself. The plaintiffs cited public statements of government officials unabashedly proclaiming they were flagging posts for social media companies to censor; openly criticizing the companies for inadequate removal of content (especially anything that cast doubt on the safety and efficacy of the COVID-19 vaccines); accusing tech executives of “killing people” for not adequately censoring so-called misinformation; and threatening to hold them accountable should they refuse to comply.

Judge Terrence Doughty ordered discovery at an early stage of litigation in Missouri v. Biden, allowing the plaintiffs to acquire documents and take depositions that substantiated their claims. For the first time, the public became aware of the Biden administration’s clandestine censorship operation, which began a mere three days after President Biden’s inauguration. White House Digital Director Clarke Humphrey wrote an email to Twitter with the subject line “Flagging Hank Aaron misinfo” that said: “Wanted to flag the below tweet and am wondering if we can get moving on the process for having it removed ASAP.” The tweet had been written by current Democratic presidential candidate Robert F. Kennedy, and suggested that the legendary baseball player had died as a result of side effects from the COVID-19 vaccine. Humphrey continued: “And then if we can keep an eye out for tweets that fall in this same ~genre that would be great.” Within minutes, Twitter responded without resistance: “We recently escalated this.”

By February of 2021, then-White House Director of Digital Media Robert Flaherty had intensified the administration’s tactics to achieve bold censorship aims. He began bullying companies—using expletives, wielding accusations, and making demands—in his efforts to get them to remove content that he claimed might cause people to decline vaccines. Andy Slavitt, former White House senior adviser for the COVID-19 response, took a page out of his colleague’s playbook, condemning Meta for failing to adequately censor posts that might stoke vaccine hesitancy. He ended his email with an ominous, barely veiled threat: “Internally we have been considering our options on what to do about it.”

Social media companies have removed posts discussing the lab leak theory not pursuant to their own judgment and policies, but because the Biden administration pressured them to do so.

Email chains indicate that social media companies altered their existing policies to more aggressively censor content that the White House insisted might jeopardize its agenda of vaccinating America.  On numerous occasions, Brian Rice and other Meta employees sent the White House detailed lists of agreed-upon policy changes after initial attempts to assuage Mr. Flaherty’s wrath proved unsuccessful.

On July 4 of this year, Judge Doughty granted the plaintiffs’ request for a preliminary injunction in Missouri, observing that “the present case arguably involves the most massive attack against free speech in United States’ history,” and describing the administration’s censorship regime as akin to an “Orwellian Ministry of Truth.”

Crucial to the outcome was the court’s finding that the Biden administration and various federal executive agencies coerced, pressured, and encouraged social media companies to suppress First Amendment protected speech, converting otherwise private action into that of the state.

The core principle at issue, which forbids the government to co-opt private industry to circumvent constitutional prohibitions, is known as “state action doctrine.” Without it, the Bill of Rights would be worthless. Police could, for instance, hire a private company to search your home despite lacking probable cause, in order to get around the Fourth Amendment’s prohibition against warrantless searches and seizures. Or the government could evade the guarantees of Equal Protection in the 14th Amendment by funding racially segregated private schools.

The judge agreed with the plaintiffs in Missouri v. Biden that the logic undergirding these clearly unconstitutional historic examples should apply in the First Amendment context: In other words, since the First Amendment prohibits government from abridging freedom of speech, the Constitution cannot be read to permit government to commandeer private companies to accomplish its viewpoint-based censorship aims.

While all of this evidence constituted robust circumstantial proof that the Administration’s coercive tactics were a driving force behind a significant amount of social media censorship (sufficient to warrant injunctive relief in the plaintiffs’ favor), direct evidence was lacking until late July of this year.

That changed when internal Meta documents were uncovered by the Weaponization Subcommittee, which Congress empowered to investigate government involvement in social media censorship. These documents tie the knot: They unequivocally establish that but for the Biden administration’s strong-arm tactics, certain viewpoints would not have been suppressed. The exchange between Nick Clegg and Brian Rice illustrates this. Not only did Rice explicitly state that pressure from the White House caused Meta to remove content endorsing the lab leak theory of COVID’s origins, he also expressed remorse for this decision.

These new documents also prove that the removal of “vaccine discouraging content” occurred because of government pressure. In April of 2021, a Meta employee wrote to Mark Zuckerberg and Sheryl Sandberg, the company’s top executives, “seeking [their] guidance on whether to take more aggressive action against certain vaccine discouraging content.” His email went on to say, “We are facing continued pressure from external stakeholders, including the White House and the press, to remove more COVID-19 vaccine discouraging content.” Also in this email, the employee explained that the material the White House wanted to censor included “humorous or satirical content that suggests the vaccine isn’t safe”—such as “a vaccine discouraging humorous meme and they called on us to delete the meme.”

Nick Clegg described Andy Slavitt as “outraged” that such a meme had not been removed from the platform (it is not clear if the exchanges refer to two separate memes, or the same one). When Clegg expressed hesitation to cater to the White House’s demands, noting that “removing content like that would represent a significant incursion into traditional boundaries of free expression in the US” Slavitt dismissed his concerns, replying that the post “inhibits confidence in COVID-19 vaccines amongst those the Biden administration is trying to reach.” Apparently to the White House, the First Amendment and free speech are dispensable when they conflict with political aims.

The Constitution cannot be read to permit government to commandeer private companies to accomplish its viewpoint-based censorship aims.

The White House’s coercive tactics had the desired effect. Both Clegg and Sandberg urged acquiescence to avoid adverse consequences. In Clegg’s words, “Sheryl is keen that we continue to explore some moves that we can make to show that we are trying to be responsive to the WH.” He explained that the company’s “current course … is a recipe for protracted and increased acrimony with the WH as the vaccine roll out continues to stutter through the Fall and Winter. Given the bigger fish we have to fry with the Administration – data flows etc – that doesn’t seem a great place for us to be.” Thus, “given what is at stake here, it would also be a good idea if we could regroup to take stock of where we are in our relations with the WH, and our internal methods too.”

The “data flow” referenced a dispute Meta was having with the European Union at the time over transfer of users’ data. If resolved in favor of the EU, Meta could face significant fines. As Twitter files journalist Michael Shellenberger and his co-authors recently explained in analyzing this exchange, “the series of events suggests a quid pro quo. Facebook would bow to White House requests for censorship in exchange for its help with the European Union.”

There are many more examples of the administration successfully exploiting its clout to achieve its censorship goals. For instance, on Aug. 2, an employee on the Trust and Safety team wrote to her colleagues proposing policy changes to “be more aggressive against covid and vaccine misinformation,” which she said leadership had requested. “This is stemming from the continued criticism of our approach from the US administration and a desire to kick the tires further internally on creative options.” The email was sent just two weeks after President Biden publicly accused social media companies of “killing people” by inadequately censoring so-called vaccine misinformation, and White House Communications Director Kate Bedingfield told media outlets that the administration was looking into ways to hold companies accountable through Section 230 (of the Communications Decency Act).

Surgeon General Vivek Murthy exerted similar pressure and achieved similar results. According to Clegg, the surgeon general “wants us to remove true information about [vaccine] side effects if the user does not provide complete information about whether the side effect is rare and treatable.” Weeks after catering to the White House’s demands, another Trust and Safety employee referred via email to a discussion with the surgeon general, during which Meta “agreed to further explore four discreet [sic] policy options for reducing the prevalence of Covid-19 misinformation on our platforms.” The first three of those policy options would be implemented “over the next coming weeks.”

According to the employee who wrote the email, the new policies were designed to target certain individuals, called the “disinformation dozen,” for removal from social media. It is certainly not a coincidence that the administration had loudly asserted for several months that these 12 people were responsible for over half of the vaccine misinformation on social media based on a report from an organization of dubious credibility known as the Center for Countering Digital Hate.

One of those policy changes was that, once a user had an account removed for COVID-19 misinformation on a Meta platform, his or her groups, pages, profiles, and accounts on other platforms would not be recommended to other users. Another provided for further demotion of COVID-19 and vaccine misinformation, and a third ensured that repeat offenders would be more quickly penalized for COVID-19 and vaccine misinformation. The fourth, which would only take effect if the company decided to further escalate efforts to combat misinformation, targeted posts that were “partly false” or “missing context.” All of these policies were designed to heighten suppression of speech on Meta’s platforms.

Shortly after this email was sent, Meta made these policy changes and the so-called disinformation dozen were removed from the company’s sites.

Before assuming office, President-elect Biden promised the electorate he would make mass vaccination against COVID-19 central to his agenda. Not only should Americans get vaccinated to safeguard their own lives, the president declared, but also as good citizens to protect each other. Those who declined vaccination were not only foolish, but selfish. Mainstream media outlets, rather than serving as a check on government, uncritically parroted these talking points.

The administration apparently failed to anticipate a significant obstacle. Many Americans—including a significant number who had recovered from COVID-19 and acquired natural immunity—did not want to get inoculated with a vaccine that lacked long-term safety data. But President Biden had no patience for impediments to his plan to vaccinate America. When berating and demonizing the COVID-19 vaccine-hesitant proved ineffective, social media companies served as convenient scapegoats.

This was clear to some of Meta’s employees, who discerned the administration’s real motivations. Discussing the relentless demands from the White House, one wrote: “[I]t also just seems like when the vaccination campaign isn’t going as hoped, it’s convenient for them to blame us.” “I agree,” the recipient responded, “This seems like a political battle that’s not fully grounded in facts, and it’s frustrating.”

Judge Doughty recognized that at the heart of President Biden’s censorship campaign was a desire to suppress voices that posed a danger to his agenda. Quoting President Harry Truman, Doughty concluded his decision:

“Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.”

A government using its power to suppress dissent is precisely what the First Amendment sought to prevent. “Freedom of speech is a principal pillar of a free government: When this support is taken away, the constitution of a free society is dissolved,” Benjamin Franklin, one of the Founding Fathers, famously wrote. The first president of the United States, George Washington, once said, “If men are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away, and dumb and silent we may be led, like sheep to the slaughter.”

Let us hope that when the Fifth Circuit Court of Appeals, and probably the Supreme Court, consider these cases in the upcoming months, they interpret the First Amendment as the Constitution’s Framers understood it. Otherwise, the future of free speech, and liberty itself, is in grave danger.


Originally Published in Tablet