Professor Richard Epstein: “Disinformation” Campaign Vs. Open Debate

The Biden administration should be forbidden to pressure social-media companies to manipulate COVID discussion.

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 Hillabout “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.

Professor Richard A. Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, is the Laurence A. Tisch Professor of Law, New York University Law School, and a senior lecturer at the University of Chicago. This article was first published by the Hoover Institute's Defining Ideas.