COVID Skeptics’ Anti-Jawboning Lawsuit Fails–Changizi v. Department of HHS

May 9, 2022 · by · in Content Regulation

Yet another COVID denier lawsuit over getting kicked off social media. These cases seem endless. On the plus side, these plaintiffs didn’t sue Twitter for deplatforming them. Instead, they directed their fire solely at the Department of Health and Human Services (DHHS), and its secretary (Becerra) and Surgeon General (Murthy), for exhorting Twitter to clean up COVID misinformation. That’s the right instinct: in the government jawboning story, the government is the culpable party when it misuses its power and resources. However, trying to turn all social media into government actors is definitely not the solution to jawboning. As a result, like all of the other jawboning cases, this case goes nowhere.

What Happened

The court summarizes the assertions:

Plaintiffs all created their respective Twitter accounts sometime between 2009 and 2014. By March of 2020, all of them began to use those accounts to actively “question” state and federal responses to the COVID-19 pandemic, as well as to engage with likeminded individuals. This activity led each of them to accrue relatively substantial followings. It also earned them numerous temporary suspensions. Specifically, between April 2021 and December 2021, Twitter temporarily suspended Mr. Changizi three times, Mr. Senger twice, and Mr. Kotzin once. Of these suspensions, five were explicitly predicated on violations of the platform’s COVID-19 Policy, while one—levied against Mr. Changizi on December 1, 2021—was not based any particular rationale.

Twitter did not limit its disciplinary tactics to suspensions. It also allegedly resorted to more discrete measures, namely with respect to Mr. Changizi. By as early as May of 2021, for example, Plaintiffs contend that Twitter began to artificially lower (or “de-boost”) the frequency in which Mr. Changizi’s tweets appeared in other users’ feeds. It also allegedly began to hide his responses to certain posts.  These tactics, Plaintiffs assert, ultimately caused the number of users who “engaged” with (i.e., “liked” or “retweeted”) Mr. Changizi’s tweets to drop “precipitously.”

Further account restrictions ensued in late 2021 and 2022.

Article III Standing: 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….Plaintiffs have failed to establish that Twitter acted on HHS’ behest when it instituted, and began to enforce, the suspension policy that effectively underpins their complaint….Nowhere in their complaint do they reconcile their overarching theory—that HHS has effectively dictated Twitter’s enforcement of its COVID-19 Policy since March of 2021—with the numerous efforts that Twitter took to ‘quell the spread of ‘misleading’ COVID-19 information’ before HHS took any position on the matter.”

Article III Standing: Redressability. The plaintiffs didn’t show that changing DHHS’s tune would affect how Twitter enforced its policies, especially because of the efforts Twitter was making before DHHS spoke out.

In a footnote, the court adds:

Plaintiffs point to the fact that the Surgeon General has, in various instances, asked social media companies to “do more” to address COVID-19 “misinformation” as the animating factor behind Twitter’s increase in suspensions. But broad requests such as these, absent more, are plainly not enough to strip Twitter of its ability to govern itself. Plaintiffs’ assertion that these requests carried the clear subtext of potential “adverse regulatory action” does not change the equation. For one, Plaintiffs do not elaborate what “adverse action,” if any, HHS could take against noncompliant social media companies. And to the extent Plaintiffs believe that some other executive agency not before this Court would step in to regulate noncompliant platforms, they do not identify (1) what agency that is; (2) what action they would take; or (3) why that action would be enough to compel “one of the largest social media platforms in the world” to unilaterally cede its authority to moderate its own content.

Thus, the court says the plaintiffs lack Article III standing.

First Amendment. “Plaintiffs do not allege that the Surgeon General (or HHS as a whole) has the power to take adverse regulatory action against social media companies like Twitter—or, for that matter, that he has ‘actually exercised’ such regulatory power…DHHS’s “efforts to confront COVID-19 misinformation, as alleged, do not ‘reasonably’ constitute an exercise of ‘coercive power’ over Twitter.”

In a footnote, the court adds that Twitter “may very well share the Surgeon General’s view on the exigency of combatting COVID-19 misinformation, or even adopt his recommendations on how to do so. But those facts alone do not logically suggest that the Surgeon General’s public comments forced Twitter to align with his office’s views.”

Implications. This opinion’s analysis is quite similar to the Hart v. Facebook ruling, issued in the Northern District of California on the same day, also involving COVID misinformation. It’s a sign of how unmeritorious these COVID crackdown cases are. The judges have no problem reaching the same conclusions even when they are working independently. However, COVID deniers and misinformation providers will be back in full force if Musk removes Twitter’s current moderation policies or laws like the Florida and Texas social media censorship bills don’t remain enjoined. No further jawboning would be required in those circumstances.

Case citation: Changizi v. Department of Health and Human Services, 2022 WL 1423176 (S.D. Ohio May 5, 2022)

BONUS: RFK Jr. sued Sen. Warren for sending letters to publishers disparaging his COVID vaccine denialist book. The court rejected his injunction request: “Plaintiffs will have serious difficulty establishing that a letter from a single United States Senator is akin to a statutorily created system of prior administrative restraints….it is difficult to maintain that Defendant Warren’s writing a letter to Amazon is effectively wielding state regulatory power, in part because there is no such power to wield.” Kennedy v. Warren, 2:21-cv-01508-BJR (W.D. Wash. May 9, 2022).

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