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During the COVID pandemic, scientists seemed to be in rare agreement about the source of the virus; its lethality; the need for universal lockdowns, masks, and social distancing; the inefficacy of certain treatment options; and the near-miraculous efficacy of the vaccine.

A few dissenting voices came through. Remember John Ioannidis, the Stanford scientist who warned in March 2020 that we didnt have enough data to know whether NPI measures were doing more harm than good? Remember Dan Erickson and Artin Massihi, the two doctors from Bakersfield, California, who argued in an hour-long video, released in April 2020, that COVIDs fatality rate was similar to that of the flu? Five million people watched them before YouTube yanked the video. Remember Michael Yeadon, erstwhile VP at Pfizer, who claimed the PCR test overestimated the incidence of COVID by a factor of ten? Remember the Great Barrington Declaration, which rejected general lockdowns and argued for focused protection for the elderly and immuno-compromised who are especially vulnerable to COVID? Remember Gov. DeSantiss roundtable discussion with the three principal Great Barrington scientists? Remember Scott Atlas? Joe Rogan hosted Robert Malone and Peter McCullough, and the redoubtable Freddie Sayers of UnHerd released a steady stream of patient, challenging, informative interviews with the likes of Carl Heneghan, Swedens Anders Tegnell, and Bret Weinstein.

You could find all these eccentric sources during the pandemic, and, as the surfeit of hyperlinks in the previous paragraph indicates, theyre still available somewhere or other. But establishment scientific journals and scientists, including American public health officials at NIH, the CDC, and other agencies, ignored the contrarians or dismissed them as kooks, cranks, and conspiracy theorists (e.g., here and here), even though some of the kooks are specialists in immunology and epidemiology employed by Stanford, Oxford, and Harvard. You could find seams of dissent if you dug deep enough, but why bother? Science knew what it was doing and would tell us what to do. Problem is, Science earned its commanding capital letter only by demonizing dissenting scientists (lower-case).

Eager to do their public service, eager to suppress disinformation, eager not to kill grandma and not to help Trump, social media companies largely reinforced the manufactured scientific consensus by removing nonconforming videos, tweets, and podcasts. On Twitter, the most offensive offender was Alex Berenson, a former New York Times reporter who amassed hundreds of thousands of followers with derisive tweets mocking the official COVID narrative and public health officials. Twitter permanently banned Berenson in August 2021 after he tweeted that the COVID shot isnt a vaccine: Think of itat bestas a therapeutic with a limited window of efficacy and terrible side effect profile that must be dosed IN ADVANCE OF ILLNESS.

Berenson sued Twitter and was restored to the platform in August 2022, the first time a social media company has lost such a suit. The rationale has always been: As private companies, Twitter, Facebook, and YouTube can make whatever rules they want and are solely responsible for determining when the rules have been violated. Berensons victory doesnt undermine that argument. According to The Atlantic, the judge threw out Berensons First Amendment claim, and Twitter settled because one of its executives violated Twitter policy by communicating directly with Berenson about his account.

But the ball game is changing, bigly. The president and other officials have publicly remonstrated with media companies to do more to suppress misinformationmost dramatically in Bidens theyre killing people comment about Facebook in July 2021. Bidens statement was hastily withdrawn, but it was part of a pattern. Kate Bedingfield, White House communications director, hinted that social media companies should be held legally liable for distributing misinformation, and Jen Psaki, former White House press secretary, called on platforms to collaborate to silence harmful voices.

Since the beginning of the Biden administration, there have been rumblings that the White House and federal agencies have also privately pressured social media companies to squelch dissent. Now several lawsuits have begun to pull back the curtain. Berenson is suing Biden, alleging that members of the administration pressed Twitter to deplatform him. Lawyers representing plaintiffs in Missouri v. Biden recently filed an amended complaint showing that eighty officials from nearly a dozen federal agencies were in contact with social media executives concerning climate change, Hunter Bidens laptop, election fraud, and COVID. If it turns out that government officials leaned on media companies to remove individual users, plaintiffs have a highly plausible First Amendment case. Censorship mediated through media is still censorship.

On COVID, there appear to be smoking guns, a small arsenal of them. We now know Mark Zuckerberg gave Anthony Fauci his personal phone number. In July 2021, a Meta executive reported to Surgeon General Vivek Murthy on the companys effort to address the disinfo dozen problem, a reference to the dozen figures considered the most dangerous sources of disinformation (quoted here). On his Substack, Berenson posted a screenshot of an internal Twitter Slack chat from April 2021, in which an employee refers to a really tough question from the White House about why Alex Berenson hasnt been kicked off the platform. In another message, a Twitter employee refers to Biden COVID adviser Andy Slavitts claim that Berenson was the epicenter of disinfo. More disclosures are coming. On September 6, a judge ordered Fauci to turn over any communications between his office and social media companies.

Jenin Younes of the New Civil Liberties Alliance, whose clients have joined the Missouri suit, points out that, whatever the outcome, the case will establish legal guidelines for social media companies. These cases will determine whether or not Twitter, Facebook, and YouTube morph into state media (or, more precisely, Democratic Party media). The suits will decide whether or not federal bureaucrats control the dissemination of scientific information, and so will affect the integrity of science and public confidence in scientific expertise. No matter how you look at it, the stakes are extremely high.

Peter J. Leithart is President ofTheopolis Institute.

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Consensus by Censorship | Peter J. Leithart - First Things

On Sept. 12, FIRE submitted its comment to the Department of Education in response to the departments proposed Title IX regulations. Our message is simple: You cant require colleges and universities to violate the constitutional rights of students or faculty.

FIRE opposes these proposed regulations because the new language, and the removal of critical language from the current Title IX regulations, constitute a severe rollback of First Amendment and due process protections for students in grievance procedures conducted on campus.

The proposed regulations most egregious provisions include:

If finalized, these and many other proposed provisions will mark a new, and unfortunately familiar, era of Title IX hearings in which institutions of higher education fail to protect the First Amendment and due process rights of students and faculty, likely resulting in costly litigation for institutions to ensure these basic protections are met.

When facts are in dispute in such high-stakes proceedings, live hearings that allow for live cross-examination are essential for permitting parties to meaningfully present and challenge evidence. As we argue in our comment to the department, failure to provide those protections violates the constitutional right to due process. Our position is backed by a growing number of court decisions. In Doe v. Baum, for example, the Sixth Circuit held:

Due process requires cross-examination in circumstances like these because it is the greatest legal engine ever invented for uncovering the truth. Not only does cross-examination allow the accused to identify inconsistencies in the other sides story, but it also gives the fact-finder an opportunity to assess a witnesss demeanor and determine who can be trusted. So if a university is faced with competing narratives about potential misconduct, the administration must facilitate some form of cross-examination in order to satisfy due process.

Although FIRE believes that these proposed regulations pose serious risks for students and faculty engaged in Title IX grievance procedures, we are encouraged that the department left in place some protections afforded under the 2020 regulations, including an express presumption of innocence and a requirement that institutions provide parties with non-punitive supportive measures, as appropriate, to help students continue their education during the grievance process.

FIRE will continue to engage with the department at every opportunity and monitor the state of due process and First Amendment protections on campus.

In particular, the departments requirement that institutions expressly provide the accused with the presumption of innocence has shown to make a difference. In FIREs most recent Spotlight on Due Process report, we analyzed the policies of Americas top 53 universities. More than 90% of institutions we rated have Title IX policies that include a presumption of innocence. Troublingly, in disciplinary hearings not governed by the Title IX regulations, nearly two-thirds (62.2%) of those institutions did not explicitly guarantee students that they will be presumed innocent until proven guilty. FIRE believes the department could do more by also requiring institutions to include a statement that a persons silence shall not be held against them.

Next month, FIRE will release its latest annual Spotlight on Due Process report, which will demonstrate the severe lack of due process rights that students are afforded at top institutions, as well as the massive disparity between procedural safeguards provided in Title IX disciplinary procedures many of which will be lost if the proposed regulations are adopted compared to non-Title IX disciplinary procedures those institutions also maintain.

To create new binding regulations or amend existing binding regulations, a federal agency must go through the rulemaking process required by the Administrative Procedure Act. Before these proposed regulations are finalized, the APA requires federal agencies to announce and explain regulatory language to the public. It also requires a comment period for public input. The 60-day comment period for the proposed Title IX regulation ended on Sept. 12.

A date has not yet been announced for a final rule of these proposed regulations, which is likely months away. Nonetheless, FIRE will continue to engage with the department at every opportunity and monitor the state of due process and First Amendment protections on campus.

Given that the Department of Education is required by the APA to meaningfully consider public input, including FIREs comment, we hope they will heed our warnings and amend the proposed language to conform to the well-established constitutional protections that students must be afforded.

Not doing so will have grave consequences for civil liberties on campus.

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FIRE's comment to Department of Education: Your proposed Title IX regulations are unconstitutional - Foundation for Individual Rights in Education

The U.S. government should do more to prevent the spread of disinformation via podcasts.

The Joe Rogan Experiencea podcast where comedian and Ultimate Fighting Championship commentator Joe Rogan interviews a wide range of guestsis a conundrum.

On one side of the debate, fans of Rogan applaud his commitment to interviewing a wide range of guests for an extended period of time in a purportedly unbiased manner. Some see podcasts such as Rogans as a foil to traditional forms of mainstream media that they have come to distrust.

On other side of the debate, though, critics chide Rogan for his amplification of controversial guests, some whom are said to advance harmful conspiracy theories and further the spread of COVID-19 misinformation. They also criticize Rogan for failing to check facts and operating without traditional journalistic oversight.

How should policymakers resolve this debate?

If hosting platforms such as Spotify fail to moderate podcasts peddling in disinformation, the U.S. government should do more to regulate this growing area of news consumption.

If podcasts were treated like traditional forms of broadcast mediaradio, television, and satellitethey would be subject to oversight by the Federal Communications Commission (FCC). Although the FCC must operate within the bounds of the First Amendments speech and press protections, the FCC prohibits news broadcasters from distorting the news intentionally or from broadcasting false information that could contribute to public harm.

Podcasters, however, currently evade these prohibitions. But if the FCC and courts choose to adopt a definition of broadcast journalism that includes podcasts that distribute the news, podcast hosts could be required to obtain a license with the agency. This would bring these alternative forms of media under the FCCs supervision, eliminating some of the problems with fact-checking and deliberate misinformation that can harm listeners.

Questions of line-drawingsuch as when does a podcast cross into news territory, when does misinformation become deliberate or harmful, or can the FCC regulate other forms of online distributioncould complicate the solution of FCC supervision. But embarking on this delicate line-drawing journey would be preferable to the alternative future of over a quarter of people in the United States depending on news from an unregulated source.

Some of these debates are already underway with recent litigation surrounding Section 230 of the Communications Decency Act. This law gives platforms some immunity from information posted by third party usersbut interpretations of the reach of this immunity has been heavily politicized as a choice between misinformation or censorship. Although this debate is ongoing, the FCC has made a case for its authority to interpret Section 230 in the absence of new legislation from Congress, which means platforms such as Spotify could be responsible for misinformation spread by hosts such as Rogan.

Concerns about First Amendment violations could be mitigated by the FCC applying its preexisting First Amendment safeguards, which the agency developed following a rich history of litigation interpreting its reach. In addition, the FCC could commit to limiting the restrictions against explicit and profane material with respect to podcasts.

Even if FCC oversight of podcasts ultimately remains in question, other agencies and tools for regulatory oversight should be explored.

The Federal Trade Commission (FTC), for example, regulates paid advertising content presented on podcasts and other online venues. Although these regulations do not cover all content within podcasts, they require hosts to be fully transparent about any endorsements and advertising content.

Expanding these advertising transparency requirements to relationships between the host and guests of the hosts showwhich often benefit the guest by way of increased following and more customers, similar to an advertisementcould better control the vetting and context of information provided by guests. This expansion of regulation could circumvent First Amendment concerns because it would not restrict the speech of the guest but merely require for a disclosure about the relationship between the guests appearance on the show and the guests business ventures.

Currently, legislators are advancing bills aimed at keeping platforms from elevating harmful content. These bills, called algorithmic amplification bills, do not attempt to censor the underlying content but would limit platforms immunity from liability in the event the platforms amplify harmful content.

Platforms such as Spotify, which make big financial investments in podcasts such as Rogans, could be punished for using algorithms to amplify harmful content. Passage of new legislation regulating platforms amplification of misleading podcasts could provide for a less invasive method of ensuring content quality without directly interfering with podcasts themselves.

With any regulatory avenue taken, government agencies and Congress must carefully consider the tradeoff between potentially restricting speech and protecting listeners. This tradeoff could be addressed by clearly defining what qualifies as news or other important informationleaving entertainment and opinion to be untouched by regulators.

With public faith in media at all-time lows, and the spread of misinformation on the rise, the U.S. government must act now to oversee popular podcasts that seemingly present authoritative news.

Read more:
The Podcast Problem - The Regulatory Review

The First Amendment, sometimes called Amendment 1, is the first amendment to the United States Constitution and is also one out of ten amendments in the Bill of Rights. The First Amendment makes it illegal to make a law that establishes a religion, stops the freedom of speech, stops people from practicing their religion, stops the press from printing what they want, and stops people from exercising their right to assemble peacefully or demonstrating against the government.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There are many key phrases in the First Amendment. Here are some explanations on what exactly they mean.

Freedom of religion: The First Amendment of the United States Constitution prevents the government from setting up or establishing an official religion of the country. American Citizens have the freedom to attend a church, mosque, synagogue, temple, or another house of worship of their choice. They can also choose to not be involved in any religion as well. Because of the First Amendment, we can practice our religion however we want to.

Freedom of speech: The First Amendment of the United States Constitution stops the government from making any laws that may stop us from saying what we feel or think. The American people have the right to share their opinions with other people or criticize the government.

Freedom of the press: Freedom of the press means we have the right to get information from many different sources of information. The government does not have the power to control what is broadcasted on radio or TV, what is printed in books or newspapers, or what is offered online. American citizens can request time on TV to respond to any views that they disagree with. They can also write letters to newspapers, which might be printed for other readers to see. Americans can also pass out leaflets that state their opinions. They may also their own online web pages that have their opinions.

Freedom of assembly: American citizens have the right to come together in private and public gatherings. Citizens can join groups for religious, social, recreational, or political reasons. By organizing in order to act on a common idea and accomplish a common goal, American citizens can more easily spread their ideas to others.

Right to petition: The right to petition the government means that American citizens can ask for adjustments or changes in the government. Citizens can do this by collecting signatures for petitions and sending them to elected representatives. They can also call, e-mail, or write to their elected representatives as well. Another way they can petition the government is by creating support groups that try to cause change by lobbying the government.

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1ST AMENDMENT (First Amendment) Rights, Text - Kids Laws

[This piece has been published in Restoring America to highlight how regulating social media companies as common carriers could violate the First Amendment.]

AEI recently published a thought-provoking report by Professor Richard A. Epstein addressing censorship of conservative viewpoints online. Building on initial comments offered last year in the Wall Street Journal, Epstein identifies the problem as a systemic progressive bias among dominant social media companies, coupled with steep barriers to entry that reduce competition as a potential disciplining force in the short term. The solution, he posits, is a common carriage regime that would prevent digital platforms from abusing their positions in ways that distort public debate.

I am sympathetic to Epsteins concerns. As Ive written elsewhere, social media is a volatile battleground, and any gatekeepers perception of particular content is likely to be informed at least subconsciously by ones priors. While evidence of systemic bias remains unclear, high-profile anecdotal missteps (such as the Hunter Biden laptop story) certainly reinforce conservative grievances. But its not clear to me that social media platforms fit the common carriage paradigm, and even if they do, common carriage treatment likely violates the First Amendment.

Epstein argues that common carriage developed as a solution to natural monopolies. Setting aside whether Facebook, Twitter, and the like exercise this kind of market power, Christopher Yoo has shown that this historical justification for common carriage treatment is muddled at best. Market power is neither a necessary nor sufficient condition for common carriage treatment. For example, until 1992, cable providers often held exclusive franchises but were statutorily exempt from common carriage treatment, while wireless companies were saddled with common carriage obligations in a competitive market.

Surveying the regulatory history, the District of Columbia Circuit Court defined common carriers as companies that hold themselves out to serve the public indiscriminately, without making individual business decisions regarding with whom to deal and on what terms. Under this definition, common carriage is a poor fit for social media. Unlike a telephone company or the postal service, which carry communications between users without regard to the underlying message, social media companies terms of service explicitly reserve the right to treat customers differently by moderating individual user content to offer users a personalized, curated experience.

This curation function raises a more significant obstacle to common carrier treatment, however justified: the First Amendment. In Miami Herald v. Tornillo, the court recognized that companies engaged in the publication and dissemination of speech possess a First Amendment right of editorial control that protects their judgments about what content to carry and how. Tornillo struck down a Florida right-of-reply statute that required newspapers to carry political candidates responses to critical editorials. Like Epstein, Florida argued that compelled access to the platform was necessary to prevent the platforms bias from distorting public debate. But the court found this insufficient to overcome the newspapers First Amendment rights.

The court has not recognized a common carriage exception to this right of editorial control. If anything, Tornillo itself implies the opposite. The court recognized that the newspaper had significant market power over dissemination of political speech, and barriers to entry made alternative distribution unlikely. But it rejected Floridas argument that this economic reality justified infringing the newspapers rights. Epstein correctly notes that earlier cases rejected First Amendment challenges to newspapers judgments about employee hiring and to anticompetitive withholding of stories from competitors. But the newspaper still decided what those employees said in print and which stories it would carry.

And this makes sense, as curation is how these platforms compete for user attention. Different platforms draw lines in different places, thereby cultivating different types of communities that appeal to different groups. Facebook aggressively removes pornographic and violent content, Twitter is more permissible but puts questionable content behind warning labels, and other platforms are free-for-all cesspools. Through millions of micro-level editorial judgments each day, platforms reveal their values, views, and community standards. In this way, the First Amendment not only protects the companies freedom of expression but also allows for richer and more dynamic competition among platforms.

We should be wary of vesting this editorial power in the government instead. Under the state action doctrine, the First Amendment prohibits only governmental abridgment of speech. Legislatures and courts have a poor track record when taking it upon themselves to decide which private spaces are public enough to be saddled with government-like duties. The fairness doctrine illustrated how government-compelled access to platforms could become a tool to reward political allies and punish enemies while chilling the very speech the doctrine was supposed to protect. First Amendment doctrine recognizes private editorial control rights not as an unalloyed good but as the lesser of two evils. In the long run, private regulation of censorship is less threatening than government regulation of censorship. Common carriage is a helpful tool to discipline less competitive markets, but it becomes more complicated when applied to markets for speech.

This article originally appeared in the AEIdeas blog and is reprinted with kind permission from the American Enterprise Institute.

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Social media, common carriage, and the First Amendment - Washington Examiner