NOT NEARLY GOOD ENOUGH: Alena Buyx, chair of the German Ethics Council, warns against assigning blame for pandemic failures, would prefer instead “honest retrospection” & “learning” because that sounds much nicer.
Among the failures serving on the Ethics Council is its chairwoman, a medical ethicist and professor named Alena Buyx. Like Emily Oster, Buyx is an archetypal Head Girl – highly conscientious, deeply conformist, mildly intelligent, and totally bereft of all originality and independence of thought.
Also like Emily Oster, Buyx has decided that it would be better not to blame anyone for the hell that the Corona brigade has put all of us through. Her most pointed remarks to this effect come in a long and otherwise unremarkable New Years interview she gave to Die Zeit.
The First Amendment protects not only speakers but also consumers, listeners and viewers. As the high court held in Virginia Board of Pharmacy v. Virginia Citizens Consumer Council (1976), when speakers are muzzled, their intended audience suffers a First Amendment violation too. Twitter users, even those who weren’t censored themselves, would therefore have standing to bring suit.
Suing federal agents would pre-empt the claim that there was no “state action.” The nub of the “nothingburger” argument is that the Twitter Files fail to show government “coercion” and Twitter therefore never became a state actor. That argument is wrong: A private party can become a state actor through voluntary joint action with the government, which the Twitter Files richly detail. But a class action against federal defendants would avoid the entire question. They’re obviously state actors.
And as the Supreme Court held in Norwood v. Harrison (1973), it is an “axiomatic” principle of constitutional law that the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” That’s exactly what the Twitter Files show officials from the Federal Bureau of Investigation, the Centers for Disease Control and Prevention, the Central Intelligence Agency, the Department of Homeland Security and other federal agencies doing—inducing and encouraging Twitter to censor constitutionally protected speech.
The plaintiffs wouldn’t have to prove Twitter was a state actor. It wouldn’t even matter if Twitter had rebuffed all the government’s censorship requests (which it didn’t). Judge Richard Posner of the Seventh U.S. Circuit Court of Appeals made this point in Backpage.com v. Dart (2015): When a government official unconstitutionally attempts to induce a private company not to carry someone else’s speech, the official’s conduct “is actionable and can be enjoined” even if the company “ignores it.”
A class action would eliminate another roadblock. Some free-speech cases against social-media companies have been dismissed on the ground that the individual plaintiffs couldn’t show that the government had targeted them or their posts in particular. A class action escapes this difficulty. It might target the CDC’s successful effort to get Twitter to adopt policies banning posts arguing that children didn’t need Covid-19 vaccines or observing that the government’s own data show the shots don’t prevent infection or transmission. These policies denied all users important information and opinions and thereby violated the First Amendment rights of listeners as well as speakers regardless of whether the government was involved in a particular individual’s being censored.
If Twitter is no longer acting as a federal censorship field office, why wouldn’t such a class action by social-media users be moot like an individual lawsuit against the company? Because of Facebook, Google and other internet companies. As Matt Taibbi reported, “the government was in constant contact not just with Twitter, but with every major tech firm.” There’s no reason to think that has stopped. A class action against federal defendants would seek to halt all government efforts to use social-media companies to achieve the censorship the Constitution forbids.
The attorneys general of Missouri and Louisiana have already jointly brought a similar lawsuit, and preliminary discovery has added more evidence of federal involvement in censorship at all major social-media companies.
Fight the power.
h/t Stephen Green