Defending Free Speech in the COVID-19 Era: Challenges and Successes
Free speech in the health freedom arena has been under attack for many years, but this phenomenon has exploded in the COVID-19 era, with many forms of radical censorship being applied. Doctors have lost their licenses and certifications for daring to critique lockdowns, vaccines, and other measures. Even search engines offer carefully crafted results bolstering official truth. Likewise, the news also curates what we are allowed to hear. Herein we look at some issues that highlight this current state of affairs in Social Media, Doctors’ Free Speech, and Antitrust law.
Social Media Censorship
Social media is a modern town square. Can media firms censor our speech? May the government censor these platforms?
Case Study:Missouri v. Biden, Government may not Coerce Social Media Firms to Remove Content
This is a huge case which put restrictions on government contacts with social media firms, based on a track record of coercive actions. And threats can be implied; one appeals Judge at oral arguments compared government actions to the Mafia: “That’s a nice social media company you have there, I’d be a shame if anything happened to it.” Case is now on hold with a tangled procedural history:
September 8, 2023: US District Court of Appeals for the Fifth Circuit mostly upheld the decision. Puts brief stay on injunction to allow government to appeal.
September 14, 2023: US Supreme Court took up case, extended stay on injunction to September 22.
September 22, 2023: US Supreme Court extends stay to September 27.
September 26, 2023: Court of Appeals for the Fifth Circuit jumps back in and orders government to respond to plaintiffs’ Petition for Panel Rehearing (to add more officials to injunction order). Injunction now stayed until Rehearing complete.
Doctors’ Speech
There is a nationwide problem, pre- and post-COVID: Doctors can be subject to discipline for expressing views different from the mainstream narrative that tends to support a “standard of care” often dictated by federal agencies and financial interests, rather than the good judgment of highly educated and trained doctors providing care specific to their patient and open to integrative, traditional, and alternative medicine with its many methods and approaches.
Case Study: California’s AB2098 Restricting Physicians’ Free Speech
California’s AB 2098 was an attempt to strengthen the already-existing power to control physicians’ speech. This misinformation law punished doctors who varied from “the contemporary scientific consensus” on COVID-19 issues. The bill was signed into law in September 2022.
On January 25, 2023, Judge William B. Shubb of the US District Court in California overturned this law by saying: “Defendants argue that while the scientific consensus may sometimes be difficult to define, there is a clear scientific consensus on certain issues — for example, that apples contain sugar, that measles is caused by a virus, or that Down’s syndrome is caused by a chromosomal abnormality,” Shubb said of California’s arguments. He added that “However, AB 2098 does not apply the term ‘scientific consensus’ to such basic facts, but rather to COVID-19 — a disease that scientists have only been studying for a few years, and about which scientific conclusions have been hotly contested. COVID-19 is a quickly evolving area of science that in many aspects eludes consensus,” Shubb noted. Shubb also said that the law’s definition of misinformation is “grammatically incoherent” and unconstitutionally vague. Shubb put the law on hold, and then under SB815, California’s legislature has repealed AB2098 pending governor’s approval.
Antitrust: Another Angle on Protecting Speech; Putting Checks on the Fact-Checkers
Antitrust is not a First Amendment issue, but instead it provides a way to challenge private parties restricting the speech of others. Under Antitrust principles, if economic actors with large market shares collude to harm the business of lesser competitors, it may be illegal. In a Complaint filed in January, 2023 content creators sued the “Trusted News Initiative,” a project of The Washington Post, BBC, AP, and Reuters, for conspiring to decide what should be allowed on social media and communicating these directions to the big platforms. The case was brought by CHD; RFK, Jr.; TrialSite, Inc.; Dr. Mercola; Ty and Charlene Bollinger, and others. This case is in an early stage, but it shows that there are creative ways to defend free speech, especially medical information.
Americans depend on free speech because we are passionate about getting to the truth of the matter. It is part and parcel of our love of liberty and justice for all.
