CINCINNATI (CN) — Twitter users who gained popularity for criticizing officials during the Covid-19 pandemic argued Thursday before an appeals court panel to reinstate First Amendment claims against the federal government for viewpoint suppression.
Mark Changizi, Michael Singer and Daniel Kotzin claim they were censored by Twitter at the urging of President Joe Biden, the surgeon general and other federal officials who sought to silence their contrarian views on the government's response to the outbreak of Covid-19.
The three men sued the Department of Health and Human Services in 2022 and alleged Twitter only began to suspend or ban accounts like theirs when the federal government threatened regulatory action to stamp out what it viewed as misleading and erroneous information about the pandemic.
Changizi and Senger had their accounts permanently suspended between December 2021 and March 2022 after they tweeted opinions that "Covid is 10 to 20 times less dangerous than the flu for kids" and "the vast majority have realized that every Covid policy ... has been one, giant fraud," respectively.
Statements from Biden and his then-press secretary Jen Psaki were cited in their complaint, along with a formal request for information made by HHS to Twitter and other social media companies regarding sources of misinformation.
U.S. District Judge Edmund Sargus Jr., a Bill Clinton appointee, granted the government's motion to dismiss in May 2022 and ruled the social media agitators failed to prove causation.
"Plaintiffs' own alleged timeline of events betrays the notion that HHS acted in any specific way to confront Covid-19 'misinformation' before Twitter began to heavily enforce its Covid-19 policy," Sargus said. "Plaintiffs contend that Twitter began to increasingly suspend users for posting Covid-19 'misinformation' in March of 2021. It is not until four months later, on July 15, 2021, that they allege HHS ... first 'command[ed] technology platforms' to take various steps against the spread of 'misinformation.'"
In their appeals brief to the Sixth Circuit, the Twitter users argued Sargus erred when he required direct proof of causation at the pleading stage.
"That is not the law," the brief states. "Plaintiffs had only to plead that the government exerted coercive power over tech companies, a standard easily met since several federal officials publicly stated that they were doing just that."
The government argued in its brief not only that Sargus properly dismissed the complaint for lack of jurisdiction, but that the users' claims were also meritless.
"Plaintiffs plead no basis to conclude that the government pressured Twitter to discipline them," the brief states. "To the contrary, the statements on which plaintiffs rely repeatedly made clear that Twitter and other platforms, not the government, bore responsibility for determining their policies regarding misinformation and for enforcing any policy they might choose to adopt."
Attorney John Vecchione of the New Civil Liberties Alliance in Washington, D.C., argued Thursday on behalf of the Twitter users and first addressed the concrete nature of the injuries sustained by his clients.
"In my clients' case," he said, "something has happened. It's not arguable they were thrown off Twitter. You have real injury."
"I think the problem is chronology," interjected U.S. Circuit Judge John Bush, an appointee of Donald Trump.
Vecchione disputed the point.
"[There was] only a 12-hour suspension until the government started pounding on these social media companies," he said. "Once the government started speaking, the curtain came down and darkness resulted as far as free speech is concerned."
Senior U.S. Circuit Judge Danny Boggs, a Ronald Reagan appointee, reminisced about previous disputes between presidents and private entities.
"I'm old enough to remember when Jack Kennedy didn't like the steel companies' prices [so] he ordered their presidents to the White House," Boggs said. "Nobody talked about a lawsuit."
"It wasn't just that the president talked," Vecchione said. "The surgeon general sent out inquiries about where this information is coming from."
"The question is, how do we draw this line?" Boggs asked. "FDR used to ... call out the evils of the newspapers."
"You have a bunch of actors, [including the surgeon general], who aren't even supposed to be here at the behest of the president," the attorney answered. "You can't say, 'don't look behind the curtain.'"
Attorney Daniel Winik from the U.S. Department of Justice argued on behalf of the government and stressed at the outset that "Twitter is no longer enforcing a Covid misinformation policy," which he also pointed out was in place well before the government made any of the remarks cited by his opposing counsel.
Winik agreed with Bush's assessment of chronology being a key issue and expounded upon the point when he noted the Twitter policy was enforced in March 2021, while Psaki's statement didn't occur until over two months later in May.
"There is no factual basis ... for backchannel communications [from the government] that caused Twitter to start enforcing this policy," he added.
In his rebuttal, Vecchione urged the panel to overturn Sargus's decision and argued the federal judge erred when he failed to read the complaint in his clients' favor at the motion-to-dismiss phase.
"This is not a summary judgment," he said. "The inferences were not given to the plaintiffs in this case."
"No one was thrown off Twitter until the government started talking," he concluded.
Senior U.S. Circuit Judge Helene White, an appointee of George W. Bush, rounded out the panel.
No timetable has been set for the court's decision.
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