The facts and the controlling law in the social media censorship case are not much in dispute. The difficulty derives from the application of the facts to the law. I have skimmed the lengthy opinion, and find large parts of it unpersuasive.
After you separate the wheat from the chaff, there are two fundamental questions posed in the case:
- Did the government’s use of its unquestioned First Amendment right to express opinions on social media posts it viewed as creating a danger to the public health and safety cross the line into coercion of the tech companies?
- How much legal protection are posts which spread dangerous factual misinformation entitled to under the First Amendment?
As to the first issue, the record clearly shows a long list of attempts by various government officials to persuade the tech companies to do more to stop the spread of misinformation–most notably, on the virus. With the exception of a few scattered comments about amending Section 230 and looking at antitrust action, however, I don’t see anything in the lengthy record that approaches coercion in the opinion, and those issues were already on the table, anyway. The judge doesn’t really focus on the second point; he appears to think that the dispute between the CDC and people spreading medical misinformation about masks, vaccines, and alternative virus treatments, for example, is a mere matter of opinion in which the truth is unclear and the views of dissenters are entitled to equal weight.
I expect this opinion to be substantially modified when it is considered on appeal. Will it be completely overturned? Probably not.