‘Disinformation’ Campaign vs. Open Debate


On July 4, in Missouri v. Biden, Judge Terry A. Doughty issued a broad injunction whose primary function is to prevent the Department of Health and Human Services, the FBI, and multiple other federal agencies from speaking to or meeting with social-media companies for the purpose of “encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.” The government has insisted throughout the litigation that its active cooperation with these companies is part of a vital public campaign to stop the spread of “disinformation” on social media, including its efforts to prevent what the Biden administration termed “vaccine hesitancy” on the part of the public.

The Doughty decision has generated fierce opposition in the liberal press. Thus Paul Barrett fumes in The Hill about “how a right-wing judge got social media and free speech dead wrong,” and then misses the point by writing: “Doughty’s dubious notion that there is a First Amendment right to spread socially harmful disinformation could well become constitutional law.” In so doing, he makes the fundamental blunder of insisting that he knows the right answer without the need for debate in which counterspeech, not suppression, is the order of the day. The Biden administration has appealed the ruling to the Fifth Circuit, which has already issued a stay order of Doughty’s initial injunction. The case seems destined for the Supreme Court. But no matter how far it goes, the government ought to lose.

The campaign against Doughty rests heavily on the claim that the suit, brought by two right-wing attorneys general, from Louisiana and Missouri, has all the marks of a political vendetta brought before a sympathetic judge in a favorable forum. The critics do not mention that three of the plaintiffs in this case are Dr. Jayanta Bhattacharya, Dr. Aaron Kheriaty, and biostatistician and epidemiologist Martin Kulldorff. Bhattacharya and Kulldorff were two of the original authors and signers of the Great Barrington Declaration, which sought in fall 2020 to defend the proposition that COVID-19 lockdown policies were harmful and should be replaced by a program of “focused protection” aimed at the most vulnerable subpopulations, typically older individuals often with additional comorbidities such as diabetes and kidney diseases.

The relevant policy issues spawned, as expected, sharp disagreement. Using the term “disinformation” to describe the position taken by these three physicians cuts out the heart of the First Amendment. The progressive side of the debate posits that disinformation is what their opponents are peddling and then asks, if we know that the critics are wrong, why not clamp down on these dangerous sentiments? But as Juvenal said long ago, “Who guards the guardians?” No one, really, which is why it is good to recall the famous remark of Justice Oliver Wendell Holmes in Abrams v. United States (1919): “The best test of truth is the power of the thought to get itself accepted in the competition of the market.” Tests, of course, always have errors in both directions, but the chances of getting the wrong answer are far greater if one person can dictate what other individuals can say and read.

Just who is making these decisions about access to information? At one time, many cases, such as O’Handley v. Padilla (2022), made an explicit statement that “there is a ‘lack of involvement’ by the State here,” and then accordingly held that the media companies were all independent private actors, entitled to exercise their First Amendment rights by excluding content that they regard as inappropriate, no questions asked. Against that view, I expressed cautious sympathy for the view that these platforms had sufficient clout that they should be treated as if they were common carriers, subject to a duty to take all content on fair and reasonable terms, given their quasi-monopoly position.

That earlier debate has been overtaken by events. Judge Doughty’s many critics decline to take issue with his detailed evidence showing the extensive coordination between the government agents and the private social media companies that was repeatedly and urgently addressed to these COVID issues. Was the relationship between the two sides consensual or coercive? The best response is that it was a bit of both. As the court noted—and the defendants conceded—“Defendants have threatened adverse consequences to social-media companies, such as reform of Section 230 immunity under the Communications Decency Act, antitrust scrutiny/enforcement, increased regulations, and other measures, if those companies refuse to increase censorship.” On the other hand, the social media platforms, in sympathy with the Biden administration, feared the dangers of delay in combating the risk of vaccine hesitancy, which could in their view lead to lost lives.

The key point is that both forms of intervention undercut any claim that the decisions to ban were private decisions. If the government enlists private parties to cooperate, the private firms become their agents. If it bludgeons them, then it adds to the first offense the additional prospect that its behavior is illegal with respect to the targeted media companies. Either way, state involvement is plain.

The government has shifted ground to argue that the steps it took were justified in light of imminent peril. But the evidence reveals that the representatives for the Biden administration, Rob Flaherty, Clarke Humphrey, and Andrew Slavitt, had no medical expertise. Their job was to urge companies to engage in such practices as mandating vaccines for young children, which Bhattacharya has condemned as medically unethical, given the low levels of risk of death or injury from COVID-19 in that cohort of the population.

So, just what specific misinformation was the Biden administration seeking to combat? The many attacks on the Doughty opinion are long on denunciations but short on specifics. We do not see any reasoned response from a government official that answers some very pointed criticisms, all of which enlist studies that cut against their position. At this point, the right response to this systematic uncertainty can be summarized in one sentence: don’t ban drugs, don’t mandate vaccines. Downstream decisions by patients and their physicians will in the end yield better outcomes, given their superior knowledge of their own situations, than broad pre-emptive restrictions on medical care.

If a drug does not work, people will stop taking it. As for the concerns over disinformation, it’s worth remembering that when many people began showing interest in ivermectin, an anti-parasitic medication that also comes in veterinary formulations, as a potential COVID treatment, the FDA tweeted its disapproval with the words “You are not a cow. . . . Stop it.” This condescension is far from an argument based on science, given that ivermectin had been approved for human use for decades. Don’t such heavy-handed statements in social media count as disinformation?

Against this backdrop, vaccine hesitancy is not irrational. The COVID vaccines involve a novel mRNA technique, and issues of risks and effectiveness are still unsettled. And the situation is dynamic, such that the case for using the vaccine should respond to the most current reports in the field as to its effectiveness. But the government still relies on portraying a refusal to be vaccinated as merely the bad behavior of free-riders who do not care about the welfare of others. (Such people would not be vaccinated no matter what anyone else did.) Meanwhile, reports of myocarditis and other ailments in the general population, including among children and those serving in the military, suggest that vaccine risk should continue to be investigated. And the rate of breakthrough infections—COVID infections that occur even after vaccination—cannot be ignored either.

The Hippocratic maxim, “First, do no harm,” cannot be out of place when there continues to be so much conflicting evidence about lockdowns, school and hospital closures, masking, drugs and vaccines, prospective treatments, and death rates. Yet the White House defends its prerogative to steer online discussion of risks and consequences. Judge Doughty’s ban on government meddling in the market for health information should stand. We need to keep the public debate alive.

© 2023 by the Board of Trustees of Leland Stanford Junior University.

Published in Law
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  1. Unsk Member

    Great Post; I am surprised there are no other comments by now. 

    Freedom of Speech is really the fundamental bedrock on which the rest of our Bill of Rights are built.  Without it, or at least without the proper,  rigorous and unyielding enforcement of it as a fundamental right to all   whose  grossly unconstitutional and partisan manipulation unfortunately is being pushed so heavy handedly right  now by the Left and the Biden Administration, all of our other rights  are in jeopardy  and can be easily cancelled out of existence in our increasingly partisan court system , paving the way for a Totalitarian Dictatorship. 

    There are several aspects to this problem.

     1. As a result of the Freedom  of Speech’s far too effective nullification by the Department of Justice, the Biden Administration has all too often been able to impose a strict Thought and Speech Control code where actions and speech outside  the approved Narrative can and often have led to severe punitive actions by the Government and it’s agencies and in even some cases criminal actions being filed. Dissent is effectively stifled. 

    2. As a result of point 1, many people become increasingly intimidated by this Thought and  Speech Code and choose to be submissive  to it often without even realizing it. Many people then become very hesitant of speaking against or even allowing their   thinking  to stray from  the Official Approve Narrative,  even to the point of getting angry with  those who challenge the narrative around them as if they will be penalized by mere association with such miscreants. Fear then becomes  pervasive. 

    3. As the intimidation factor in point 2 takes hold, it becomes easier and easier for the Government to lie outrageously and to punish those not totally submissive to the Narrative because such a small percentage of the population is willing to challenge  them.  We are seeing many officials within the Biden Administration as an example of this point develop very elaborate lies that on their face are ridiculous but are accepted anyway  by the populace. 

    4. The most vibrant societies in history  like with  the Golden Age of Athens or Renaissance Florence  or even America for much of it’s history, have reached those prosperity and innovations unknown before them  because there was vigorous and intellectually stimulating debate in much of society.  Now in America rigorous debate is strongly discouraged lest that debate runs afoul of the now sacred   Narrative, to the point that this phenomenon has already led to many failures in public polices regarding the War, COVID, Crime, Homelessness, the economy and many other issues because  effective problem solving and effective policies require intense public debate to flesh out the best alternatives which now are not even allowed to be discussed. Public shaming of the curious and inventive and those willing to question and challenge  have become the norm. Societies with such repression quickly start to decline just as America is now.





    • #1
  2. Unsk Member

    continued ..

    5.   We now have Fraudulent Policies that would have been normally found totally wanting if discussed publicly with any kind of rational analysis but which have been developed almost entirely behind closed doors that now benefit special connected interests and the privileged political class that have  become endemic.

    • In America we have seen hundreds of thousands  people die because of the  politically and corruption driven studies that prevented Ivermectin and HCQ to be applied appropriately to  treat COVID.  At a minimum this should result in tens of thousands of prosecutions for manslaughter of what really was unbelievably  politically driven mass murder to protect Big Pharma and even worse it institute a country wide mind control of the population to learn to obey without question faulty government directives.

    • Similarly the fraudulent development of the COVID Vaccines and the studies to gain the Emergency Use Authorizations has developed a shockingly immense and growing medical crisis among our citizenry which again has been covered up in a shocking display of purposeful public official malfeasance and malpractice  which has  increased the death rate of the entire population across the board by at least a 15%, or by at least a half a million people with      un- necessary deaths  a year in yet another gut wrenching  case of politically driven mass murder. The evidence of at least a 15% increase in the death rate has been verified by public financial records of the largest mortuary company in the country and various reports from insurance companies here and abroad about the reasons for an enormous increase in insurance payouts along with analysis of the embalming difficulties faced by mortuaries which show that somewhere between 50 to 70% of deaths now show a strange pervasive blood clot problem.

    •   In a similar fashion, unbeknownst and largely  undiscussed by  a high 90 plus percent of the population is the fact that the Federal Reserve has engineered since the panic of 2008 a massive wealth transfer to the elite and connected 1% worth tens of trillions – yes trillions- of dollars along with the pump and dump machinations of the  over $6 Trillion QE money print since 2020 that have apparently purposefully created an enormous bout of inflation and a monumental banking crisis that appears to be engineered to create a humongous financial crisis to provide the predicate for the institution of a digital currency that will control the financial ability of the entire population.

    • Also in similar fashion are all the thousands and pervasively fraudulent “climate change” studies that have used as the predicate for the EPA and other Federal, State and local agencies to demand wide spread restrictions on the energy industry and energy use by the public that will purposely hobble the economy to purposely hobble entrepreneurship and small business and ruin the lives of millions.

    • These are just some of more impact-full examples of the massive Government regulatory and unconstitutional over-reach engineered by the opportunities for widespread abuse Government’s Censorship and Propaganda campaign.

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  3. Stina Member

    Freedom of Speech is really the fundamental bedrock on which the rest of our Bill of Rights are built.

    I actually think the right to life is the foundational one that even the first amendment rests on. A living being is entitled to their thoughts and beliefs and they have a fundamental right to speak according to those thoughts and beliefs.

    Just my (currently sullied and seemingly inconsistent) 2 cents.

    • #3
  4. W Bob Member
    W Bob

    There are certain pre determined categories of speech that are not protected by the First Amendment. These categories are settled law in American jurisprudence. There is no question that the speech at issue in this case is not in any of those categories. Saying wrong or misleading things about whether vaccines or masks work is simply not in the category of unprotected speech. Complaining that it’s dangerous for society or whatever the libs are saying is completely missing the point. The speech was protected, government actors told private companies to remove it, and they did. It’s pretty simple. 

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  5. Jim Kearney Member
    Jim Kearney

    … and they call us “fascists.”

    • #5
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