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Lawsuit: Biden admin pressuring Big Tech to censor COVID-19 “misinformation” violated First Amendment

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A rights group representing three people who had their Twitter accounts banned and suspended over tweets that were critical of COVID policies has sued the US Department of Health and Human Services (HHS), Surgeon General, and Secretary of HHS, with the lawsuit alleging that the Biden administration’s persistent calls for tech platforms to censor COVID-19 “misinformation” violated the First Amendment.

The lawsuit was filed by the National Civil Liberties Organization (NCLA), a nonpartisan, nonprofit civil rights group, and names the Department of HHS, Surgeon General Vivek Murthy, and Secretary of HHS Xavier Becerra as defendants.

The plaintiffs in the lawsuit are attorney and author Michael P. Senger, theoretical cognitive scientist Mark Changizi, and stay-at-home father Daniel Kotzin. All three have used their Twitter accounts to criticize restrictions imposed by governments in response to COVID-19 and challenge other COVID narratives pushed by health authorities.

During the pandemic, the plaintiffs accrued tens of thousands of followers with Senger’s account growing to 112,000 followers, Changizi’s account growing to 37,000 followers, and Kotzin’s account growing to 29,700 followers. However, Twitter took punitive action against all three accounts after they posted tweets that were critical of COVID policies and measures.

Senger’s account was permanently banned on March 8, 2022, Changizi’s account was permanently banned on December 18, 2021 and reinstated after an appeal, and Kotzin’s account has been suspended twice. Changizi also claims that his Twitter account has been heavily censored and de-boosted since May 2021.

The lawsuit alleges that Twitter’s censorship of these accounts was in response to federal government pressure to censor misinformation which began in May 2021 when White House Press Secretary Jen Psaki told reporters that President Joe Biden’s view is that major platforms have a responsibility to censor misinformation related to COVID-19 vaccinations.

The lawsuit cites Surgeon General Vivek Murthy’s July 2021 advisory (which called for technology companies to “address misinformation”) and Murthy’s March 2022 demand for Big Tech platforms to hand over COVID misinformation data as examples of the White House’s “coordinated and escalating campaign.”

The lawsuit also points to various other comments from government officials that heaped the pressure on tech giants to censor misinformation. These comments include Psaki’s July 2021 admission that the US government is flagging content for Facebook to censor, Psaki’s call for users who are banned from one platform for sharing misinformation to be banned from all platforms, and Murthy’s January 2022 comments that Big Tech platforms should do more to stop misinformation.

Specifically, the lawsuit argues that the timing of Twitter’s censorship of Senger, Changizi, and Kotzin’s accounts indicates that Twitter took action against the plaintiffs in response to the Biden administration and the HHS pressuring tech platforms to censor misinformation.

Additionally, the lawsuit alleges that the Surgeon General, HHS, and the Biden administration are “instrumentalizing Twitter and other technology companies to effectuate their goal of silencing opinions that diverge from the White House’s messaging on COVID-19” and by doing so, violating the First Amendment of the US Constitution.

The lawsuit also claims that Murthy’s demand for Big Tech platforms to hand over COVID misinformation data violates the Fourth Amendment because it constitutes a search and that the federal government pressuring the tech giants to censor misinformation unlawfully violated the Administrative Procedure Act.

The lawsuit is seeking relief that restrains the defendants and their agents from “enforcing coercive or otherwise pressuring policies or conditions…that exert pressure upon Twitter and other technology companies to censor users.”

A motion for preliminary injunction filed Wednesday is seeking “an immediate halt to Surgeon General’s unlawful demand that tech companies censor those whose views diverge from Government’s on COVID and turn over info to the government about those people.”

We obtained a copy of the lawsuit for you here.

“The Surgeon General apparently believes he can do whatever he wishes, even going so far as to commandeer technology companies to stifle the perspectives of those who differ from the government on Covid policies,” NCLA Litigation Counsel Jenin Younes said. “But Congress has not given him the authority to coerce social media platforms into censoring the voices of those with whom he disagrees, and in fact it could not have given him this power. The Surgeon General’s demand has turned Twitter’s censorship into government action. Thus, this viewpoint-based suppression of speech violates our clients’ First Amendment rights to free speech.”

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