Data analyst Justin Hart has filed a federal lawsuit against Facebook and Twitter and the Biden administration for working together to censor his constitutional right to free speech after both companies removed his posts on masking children and suspended his accounts — just days before Press Secretary Jen Psaki admitted that the Biden administration is providing guidance to Facebook and other Big Tech firms to monitor, flag, and delete “misinformation” on COVID-19.
Quick Facts
The lawsuit names six defendants: Facebook, Twitter, President Joe Biden, and Surgeon General Vivek Murthy, the Department of Health and Human Services, and the Office of Management and Budget.
In his filing, Hart noted that the post that got him censored and suspended was an infographic that he created and entitled, “Masking Children is Impractical and Not Backed by Research or Real World Data,” and which was backed up by footnotes detailing his scientific sources (see below).
Hart’s profile was suspended by Facebook on July 13 and the post deleted. A few days later, Hart posted a tweet on his Twitter account that stated, “So the CDC just reported that 70% of those who came down with #COvId19 symptoms had been wearing a mask. We know that masks don’t protect you… but at some point you have to wonder if they are PART of the problem.”
Hart then got a message from Twitter telling him that his account had been locked for “violating the policy on spreading misleading or potentially harmful information related to COVID-19.”
Censorship by social media platforms is, of course, nothing new. Big Tech platforms routinely determine what is true and false by their standards and suspend or ban accounts that post disapproved content.
What is a new development is the admission that the federal government is cooperating with Big Tech and even providing guidance on who and what to censor.
On July 15, White House Press Secretary Jen Psaki admitted that the Biden administration has been working with social media companies to remove posts and profiles that it claims are spreading disinformation.
Psaki said, “We’ve increased disinformation research and tracking within the surgeon general’s office. We’re flagging problematic posts for Facebook that spread disinformation. We’re working with doctors and medical professionals to connect medical experts who are popular with our audiences with accurate information and boost trusted content — so we are helping get trusted content out there.”
She also admitted that the administration “is in regular touch” with companies such as Facebook and Twitter.
In August, Surgeon General Vivek Murthy went on CNN and said that while social media companies were doing “some things to reduce the spread of misinformation,” it’s “not nearly enough.” He added that “there are people who are super spreaders of misinformation” and social media companies have a “moral responsibility” to do all they can to silence those people.
Brian Kelsey, managing attorney at the Liberty Justice Center, which represents Hart said, “The recent admission that the White House has a team of government workers flagging Americans’ social media posts for removal is extremely disturbing, and it’s illegal.”
He added, “Regardless of one’s politics or views about COVID, every citizen should be greatly alarmed by this melding of Big Government and Big Tech to control what you see, hear and know about one of the greatest public issues of our time.”
Hart has been a data analyst for over 25 years and is the founder of RationalGround.com, which helps companies and public officials track the impact of COVID-19. He said,
“It’s clear to Americans that what is said at the White House podium isn’t always true, so why do we think it’s acceptable for the government to direct social media companies to censor people on critical issues such as COVID? Until it happens to you, the average citizen probably has no idea how much excessive control Facebook, Twitter, and others have over our public dialogue. Now, the federal government is working with these companies to stamp out free speech. It’s grossly unconstitutional and it must stop.”
Legal scholar and professor Jonathan Turley, who writes often about Big Tech censorship, weighed in on Hart’s suit by noting,
“The concern is obvious that this allows for a direct role of the government in a massive censorship program run by private companies. There have been repeated examples of the censoring of stories that were embarrassing or problematic for the Biden Administration. Even when Twitter expressed regret for the censoring of the Hunter Biden laptop story before the election, there was an immediate push back for greater censorship from Democrats.”
Turley continued,
“The same problems have arisen on Covid stories. For a year, Big Tech has been censoring those who wanted to discuss the origins of [the] pandemic. It was not until Biden admitted that the virus may have originated in the Wuhan lab that social media suddenly changed its position. Facebook only recently announced that people on its platform will be able to discuss the origins of Covid-19 after censoring any such discussion. The back channel coordination with Facebook further supports the view that this is a de facto state-supporting censorship program.”
Still, Turley argued that the legal pathway is unclear and predicted that Hart’s lawsuit and others like it are unlikely to prevail. He did state that censorship is a major concern and that social media companies should be treated as monopolies or government subsidies should be given to form competitors. However, he said, any competitor that receives its funding from government would likely be as bad or worse than Facebook and Twitter.
Hart’s filing cites several legal precedents to back up his challenge, including Ohno v. Yasuma, in which the 9th Circuit Court of Appeals ruled, “Joint action exists where the government…encourages… unconstitutional conduct through its involvement with a private party,” and Rosenberger v. Rector & Visitors of the University of Virginia, in which the Supreme Court ruled, “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.”
Whether Hart can win against an increasingly powerful government/Big Tech partnership remains to be seen, but in a saner period, legislators of both parties would recognize that Big Tech firms have become way too powerful and that they must have their liability protections removed and their monopolistic power broken up.
Of even greater concern, however, is that social media companies has gone from being openly biased in favor of the Biden administration to openly engaging in censorship directed by the Biden administration. And the government is not only encouraging but directing Big Tech firms to act as its proxy in engaging in viewpoint censorship, which is nothing less than a state-endorsed infringement on the First Amendment.
What the government is doing is illegal and the exact antithesis of the free speech rights granted by the Constitution. If the presidential administration monitoring speech and giving disapproved lists of people and opinions to social media companies in order to ban and silence them isn’t Big Brother, then what is?
