The Fifth Circuit Court of Appeals has just ruled that the Biden administration violated the First Amendment in its efforts to get social media companies to take down particular posts about COVID-19. The Biden administration has maintained that it did not abridge anyone’s free speech, because it was only making suggestions, which the platforms were free to ignore if they wanted to. The Fifth Circuit found otherwise, ruling that in their dealings with the companies, the administration went beyond mere requests to moderate content into implicit threats of adverse consequences.
I’m sympathetic to the challenge that the Biden administration has faced around COVID. After all, in a pandemic, people are dying by the millions around the world, and the job of the government is to stop the virus and keep people alive. This is made very difficult when all sorts of nonsense is flying around online encouraging people to spurn the most effective known response measures (masks, vaccines) and embrace unproven cures instead. Since taking bad medical advice from a Facebook post could lead to someone’s death, Facebook wanted to get dangerous falsehoods off its platform, and public health authorities wanted to advise them on what the dangerous falsehoods actually were.
From this point of view, the Biden administration’s conduct can look fairly innocuous. But from another perspective, it was illegal censorship. After all, while the platforms are private entities, they function as a kind of public square, and the government was making decisions about what did and didn’t belong in the public discourse. That’s precisely what the First Amendment is designed to keep the government from doing, in part because the state can’t be trusted to reliably differentiate truth from falsehoods. Some of the ideas initially deemed to be “misinformation” later came to be seen as much more plausible (such as the idea COVID-19 might have come from a research accident in a virus lab rather than a wild animal sold in a market).
The Fifth Circuit’s opinion probably won’t persuade many of the Biden administration’s defenders that what the government did was wrong. After all, the particular judicial circuit is known to be conservative, and much of the reasoning in the opinion is quite subjective. For instance, the court says that when the FBI “urged the platforms to take down content,” “those requests were coercive,” even though they were not “plainly threatening in tone or manner” and “did not plainly reference adverse consequences [if the platforms didn’t carry out the request].” Other judges might look at the same set of facts and conclude that the government did stay within the boundaries of permissible content by trying to convince the companies to moderate content without actually coercing them.
But in some ways, this debate is beside the point. It’s arguable whether the Biden administration was so aggressive in its demands that it violated the First Amendment. The more crucial truth, as we look back on this period, is that the government should have put less energy into trying to get posts taken down, and more into a robust public health campaign that earned the public’s trust. The approach of trying to get “misinformation” removed not only led to bad calls, but fueled the narrative that the government’s approach to managing the pandemic was authoritarian.
As my Current Affairs colleague Lily Sanchez wrote at the end of 2021, the Biden administration’s response to COVID-19 was an abysmal failure—as was, in many ways, Trump’s. It’s worth looking back on what happened in some detail, as there’s so much we could have done better. Remember, Trump knew the virus was airborne in February of 2020 yet decided to downplay the situation; testing rollout and response by the CDC were abysmally slow; and, to make matters worse, Trump himself played the role of the Disinformer in Chief, going off about bogus (and dangerous) treatments like bleach injections and anti-parasitic medications and aligning himself with disinformation doctor groups like America’s Frontline Doctors.
In the richest country in the world, the response should have been focused on saving as many lives as possible and preventing as many infections as possible. To start, Trump or Biden should have used the public health emergency to give everyone healthcare under Medicare for All. We should have launched a relentless and widespread public health education campaign utilizing all avenues available (internet, billboards, radio, TV, print media, schools, etc.) to inform people about the virus, how it spreads, and its effects as well as to build trust in what would later be called “the tools,” such as vaccines, masks, tests, air filtration, and treatments. (See this fun Current Affairs video about how bad early pandemic messaging was.) The Defense Production Act should have been used right away to produce any supplies we were capable of producing: personal protective equipment (remember when healthcare workers were using trash bags for PPE or getting fired for speaking out about lack of PPE at their institutions?), ventilators, other medical equipment and supplies, testing, masks, and air filtration devices. The cost of these supplies should have been subsidized for all. We should have sent people home from dangerous prisons and jails and given workers robust workplace protections and hazard pay. And, of course, we should have led the world in pushing for an intellectual property waiver on COVID vaccines and related therapeutics so that global south countries wouldn’t face so many barriers to manufacturing these products.
Instead, we did the bare minimum: a relatively short “lock down” and mask mandate period (timelines varied by state) and a rapid re-opening of the economy. While vaccine production as of late 2020 was certainly an accomplishment, the rollout was not accompanied by enough of an effort to 1) overcome the rising antivaccine sentiment (and online disinformation campaign combined with conspiratorial mistrust of the healthcare industry) that has been building in the country for years and to 2) get the vaccine into the arms of as many people as possible. With the public health declaration having expired this past May, the Biden administration has now kicked “the tools” to the private market. You do you—or what you can afford to do. The pandemic welfare state—social spending which reduced poverty, inequality, and hunger—has also been put into reverse.
Of course, as the virus spreads in a largely uncontrolled fashion, new variants have emerged. The latest COVID vaccine is rolling out soon. But because there has been so little public health education and resulting uptake of the previous COVID vaccines—less than 20 percent of Americans got the bivalent booster shot which protected against the original virus and the Omicron variant—it’s not clear that uptake of the next updated vaccine will be any better. What’s even worse is that the new CDC director, Mandy Cohen, has been putting out videos on social media about COVID “tools” and prevention that fail to mention masking at all. Clearly, this is deliberate. And it’s public health malpractice.
Misinformation is only part of the reason people end up believing falsehoods, the other half of the story is that it’s really difficult to get access to high-quality, dependable information. As a political writer, I was constantly frustrated during the pandemic that there were so few clear refutations of bad information. When I asked a journalist why nobody had clearly debunked the writings of contrarian Alex Berenson, for instance, I was told that Berenson was not worth dealing with because he was so wrong. But his takes were very popular. Getting him kicked off Twitter fueled his narrative that the authorities are scared of his unpopular truths. Instead, his critics should have aggressively exposed his errors. (I have not seen mainstream reviews of his book Pandemia, for instance, which meant it was left unrefuted.)
The fact that agencies like the CDC were trying to police the internet, rather than trying to build an effective public information campaign, suggests a kind of “giving up on government” that I associate with neoliberalism. It’s as if the state’s job is merely to regulate the marketplace of ideas, rather than to engage in a positive campaign of education. Whether it was legal or not, the approach of trying to get falsehoods purged from the internet is, firstly, doomed to fail. There’s so much nonsense on the internet that it’s like trying to get all the salt out of the sea. It’s also going to lead to true things being taken down, which will make people angry and resentful. It is, above all, the tactic of a failed government, one that cannot succeed in earning the people’s trust and fostering public knowledge. However urgent a crisis may be, the approach of trying to get people kicked off social media is counterproductive approach that should almost never be used in a democratic society.