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Lawsuit challenges federal crackdown on COVID-19 misinformation on social media

Surgeon General Dr. Vivek Murthy testifies before the Senate Finance Committee on Capitol Hill in February 2022.Susan Walsh/Associated Press

A civil liberties group says the federal government has no business putting pressure on the nation’s technology companies to stamp out COVID-19 misinformation.

The Washington, D.C.-based New Civil Liberties Alliance has filed a lawsuit in a Columbus, Ohio, federal court against US Surgeon General Vivek Murthy and Health and Human Services Secretary Xavier Becerra. The lawsuit was filed on behalf of three users of the social media platform Twitter whose accounts were suspended temporarily or permanently after they posted messages that disputed conventional scientific advice about COVID-19.

The plaintiffs say that Twitter took action against them because of ongoing pressure from the Biden administration, which for months has urged tech giants such as Twitter, Facebook, and Google to crack down on postings that spread false information about the disease.

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One of the plaintiffs’ attorneys, Jenin Younes, said the administration is attempting censorship by proxy, by pressuring private companies to stifle free speech on the government’s behalf.

“The government is essentially using these companies,” said Younes. “It’s trying to scare them so that they censor people and views with which they disagree.”

Younes cited a July 2021 interview in which White House communications director Kate Bedingfield suggested that social media companies might be held legally liable for allowing users to post and share COVID-19 misinformation. “We’re reviewing that, and certainly, they should be held accountable,” Bedingfield said during an interview on MSNBC’s “Morning Joe.”

Younes also pointed to an October 2021 Twitter thread by Murthy. Using his official surgeon general account, Murthy wrote, “We must demand Facebook and the rest of the social media ecosystem take responsibility for stopping health misinformation on their platforms.” Younes said that the message amounts to a demand that the companies censor users at the government’s behest.

The federal lawsuit specifically takes aim at Murthy’s March 3 request that tech companies provide HHS with “information about how widespread COVID-19 misinformation is on individual technology platforms,” as well as “aggregate data and analysis on how many users were exposed, were potentially exposed, or otherwise engaged with COVID-19 misinformation.” Murthy also requested data about “specific, public actors that are providing misinformation.”

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It’s unclear how many Internet media companies will respond to the surgeon general’s data request. Twitter did not respond to an inquiry from the Globe; neither did Alphabet, owner of YouTube, which has often been criticized for posting COVID misinformation. But a spokesman for Meta, the parent company of Facebook, said that it planned to respond to Murthy’s request.

The plaintiffs say that HHS has no authority under federal law to collect such data. In addition, they argue that no government agency can obtain information about specific Internet users without a court-issued search warrant.

Boston civil liberties attorney Harvey Silverglate predicted that the NCLA lawsuit will fail because a mere request for information doesn’t explicitly exceed the government’s authority. Silverglate, cofounder of the Foundation for Individual Rights in Education, said that any time a federal agency asks for information, “there’s an element of coercion,” but not enough in this case to make the request illegal.

But Silverglate also said that Murthy’s action could have a chilling effect on free speech.

“The government would love to control social media for political purposes,” said Silverglate. “And it’s true that social media [companies] have been disappointingly irresponsible. But in a free society, one has a right to be irresponsible, even to intentionally spread disinformation.”

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Hiawatha Bray can be reached at hiawatha.bray@globe.com. Follow him on Twitter @GlobeTechLab.