On the Social Media Censorship Case

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:

  1. 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?
  2. 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.