Stop mourning the Murthy case, start fighting the censorship-industrial complex

When government and Big Tech collude to censor speech online, Americans should not be at the mercy of lengthy and uncertain litigation to vindicate their rights.

After government officials like former White House advisers Rob Flaherty and Andy Slavitt repeatedly harangued platforms such as Facebook to censor Americans who contested the government’s narrative on COVID-19 vaccines, Missouri and Louisiana sued. They claimed that the practice violates the First Amendment.

Following years of litigation, the Supreme Court threw cold water on their efforts, ruling in Murthy v. Missouri that states and the individual plaintiffs lacked standing to sue the government for its actions.

Although litigation will continue in the lower courts, the decision is a major blow to free speech. Justice Samuel Alito, along with Justices Clarence Thomas and Neil Gorsuch, criticized the majority in Murthy for refusing “to address this serious threat to the First Amendment.”

But even if the court had accepted the plaintiffs’ standing argument, as the dissenters did, and found that the government’s direct engagement with platforms violated the First Amendment, the underlying problem would remain. Crafty government officials could, and likely would, still try to circumvent the First Amendment by pressuring Big Tech firms through indirect and informal means.

A complicating factor in this litigation and other congressional investigations is that the government often disguised its censorship requests by coordinating with ostensibly “private” civil society groups to pressure tech companies to remove or shadow ban targeted content.

According to the U.S. House Weaponization Committee’s November 2023 interim report, the Cybersecurity and Infrastructure Security Agency requested that the now-defunct Stanford Internet Observatory create a public-private partnership to counter election “misinformation” in 2020. This consortium of government and private entities took the form of the Election Integrity Partnership (EIP).

Although that agency claims that it never made specific censorship demands, other government agencies, including the State Department, FBI and NSA, as well as government-funded organizations, reported “misinformation” to EIP researchers.

In other words, EIP operated a secret, backdoor ticketing system to facilitate government communication with Big Tech platforms.

Documents obtained by RealClear Investigations revealed that in one case, the government-funded Election Infrastructure Information Sharing and Analysis Center flagged a tweet by former President Trump, urging voters to change their vote for him on early-voting ballots. They also flagged another post by an unnamed user, claiming that an absentee ballot had been delivered to the user’s dead father.

EIP’s “private” civil society partners then forwarded the flagged content to Big Tech platforms like Facebook, YouTube, TikTok and Twitter.

It worked. EIP’s own report estimated that platforms acted on at least 35 percent of the URLs flagged — including removing, fact-checking or soft-blocking content.

Notably, TikTok had the highest censorship rate. It removed at least 64 percent of the URLs flagged by EIP.

This arrangement allowed the government to route censorship demands through private intermediaries who, unlike the government actors, are not constrained by the First Amendment.

According to the House interim report, the EIP’s opaque structure and ambiguous relationship with the government was intended to allow agencies to avoid what one senior manager at the Stanford Internet Observatory characterized as “very real First amendment questions.”

As a result, even if the Supreme Court had upheld the preliminary injunction against the government, the Biden administration may still have been able to route censorship demands through these “private” groups, many of which receive millions of taxpayer dollars from the National Science Foundation, the State Department and the U.S Department of Justice.

Ending the government’s weaponization of Big Tech against Americans demands bold and decisive action to hold both accountable for their behavior.

Congress could ban government from using its resources or bully pulpit to promote suppression of the free and equal enjoyment of constitutional rights. That includes cutting off taxpayer dollars for all “mis-” and “dis-” information projects trained on the domestic population.

Legislation like the COLLUDE Act would also go a long way in holding Big Tech accountable. It would clarify that Section 230 does not apply when platforms censor legal speech “as a result of a communication” from a “governmental entity” or from an non-profit “acting at the request or behest of a governmental entity.”

Even in the absence of congressional action, a new presidential administration could order a government-wide audit to ensure that all informal agency actions, civil society partnerships, funding and government contractors are in line with the First Amendment.

The president could also direct agencies to adopt strict rules governing how officials interact with tech platforms or cooperate with non-profits and other governments, on issues that affect digital freedoms.

Courts matter for adjudicating and protecting rights. But the entrenched relationships between Big Tech and Big Government require new policies to meaningfully check their power.

It’s time for Congress and the next administration to strike at the root of the censorship-industrial complex and protect ordinary Americans.

Hans von Spakovsky is a senior legal fellow at the Heritage Foundation. Daniel Cochrane is a senior researcher in Heritage’s Tech Policy Center.