CASE
SUMMARY
The U.S. Surgeon General and HHS directed social media platforms including Twitter to censor alleged “misinformation” about Covid-19. The speech ban included information the Government later conceded was true but that conflicted with its messaging on Covid-19 at the time. The Surgeon General demanded that the tech companies turn over information about individuals who spread such “misinformation,” a clear intimidation tactic that HHS labeled a “Request for Information” (RFI). NCLA clients Mark Changizi, Daniel Kotzin, and Michael Senger each had Twitter accounts with tens of thousands of followers or more, but Twitter permanently banned Mr. Senger, temporarily suspending Mr. Changizi and Mr. Kotzin for their tweets about COVID-19.
After the Surgeon General and HHS issued a July 2022 advisory commanding technology platforms to collect data on the “spread and impact of misinformation” and “prioritize early detection of misinformation ‘super-spreaders’ and repeat offenders” by “impos[ing] clear consequences for accounts that repeatedly violate platform policies,” Twitter began suspending more and more accounts, some permanently. The type of censorship imposed on NCLA’s clients attacks the heart of what the First Amendment was designed to protect—free speech, especially political speech, much of which has later been vindicated as accurate. The Surgeon General’s RFI demanded that technology platforms turn over “information about sources of Covid-19 misinformation” to the Government by May 2, 2022, exceeding his statutory authority.
The statute cannot reasonably be interpreted to allow the Surgeon General to order tech companies to censor individuals with whom he disagrees on Covid policy, or demand that Twitter hand over information about such account holders without a probable cause-based warrant. Demanding social media platforms turn over information about users that the Government deems problematic violates of the Fourth Amendment.