Professors at Stanford University and the University of Washington have been accused of a “conspiracy” with federal officials to violate the First Amendment rights of social media users. Tactically, this may not be the best case to bring over such conspiracies, because suing professors may be depicted by progressive academic associations like the American Association of University Professors as an attack on academic freedom.
A lawsuit recently filed by America First Legal Foundation is suing several entities who worked with federal agencies to flag social media content related to the 2020 election and COVID-19 vaccines as “misinformation” and urged social media platforms to suppress it as part of two projects, the Election Integrity Partnership and the Virality Project.
The plaintiffs are the leaders of Health Freedom Louisiana and the right-wing website Gateway Pundit, whose content was targeted. They accused the universities and nonprofits of colluding with the government in their censorship efforts, thus violating the Constitution.
The plaintiffs seek monetary damages and an injunction against such collusion between the federal government and private entities to suppress speech.
Among the defendants are Stanford University, it board of trustees, Stanford University’s Internet Observatory, two of its researchers (Alex Stamos and Renee Diresta), and Kate Starbird, the director of the University of Washington’s Center for an Informed Public.
America First Legal, one of the groups behind the lawsuit, tooted its own horn. “America First Legal is striking at the heart of the censorship-industrial complex for our clients,” AFL President Stephen Miller, a former aide to President Donald Trump, stated in a press release.
“We are filing a landmark class action lawsuit against the organizers and architects of an elaborate conspiracy to surveil and censor Americans to stop them from exercising their fundamental right to free speech. To silence, banish, and deprive them of the means to earn a living.”
Miller said the defendants were involved in “a regime of surveillance, censorship, and control fit for communist China.”
“Under the Orwellian guise of policing ‘mis’ and ‘disinformation,’ the organizations and entities we are suing today are responsible for radically eroding the rights and liberties upon which the survival of free society depends,” he said.
There is another pending lawsuit over suppression of speech on social media platforms that may have better prospects. It already survived a pretrial motion to dismiss filed by the government. In it, the attorneys general of Missouri and Louisiana sued the Biden administration, accusing it of successfully pressuring the tech giants to suppress people’s speech. They jointly filed a suit against the Biden administration in Monroe, Louisiana, claiming that Biden’s team has been working directly with Big Tech going back to the early days of the 2020 election, pressuring Facebook, Twitter, YouTube, and others to take down dissenting opinions. The Washington Examiner reports:
The Republican attorneys general of Missouri and Louisiana accused President Joe Biden and other top government officials …. of colluding with social media giants such as Facebook, Twitter, and YouTube to censor and suppress speech under the guise of combating dangerous misinformation.
Missouri Attorney General Eric Schmitt and Louisiana Attorney General Jeff Landry filed the suit in an attempt to demonstrate the Biden administration’s alleged work with Big Tech companies to suppress speech pertaining to COVID-19-related information, election integrity, and other topics unfairly.
The lawsuit claims that Biden and his supporters, during the 2020 election campaign and now in office, have directly worked with executives and employees of Big Tech companies to censor content related to controversial political debates over the past two years.
It’s not clear that the attorneys general can show the Biden administration pressured the tech giants enough to legally amount to coercing them to restrict speech — as opposed to just colluding with the tech giants to restrict speech. Coercion is a clear-cut violation of the First Amendment. Collusion is only a violation of the First Amendment, according to the Missouri-based 8th Circuit Court of Appeals.
The Eighth Circuit Court of Appeals ruled in 2005 that you can sue under the First Amendment when the government merely colludes with a private entity to restrict your speech — and you can sue that private entity, along with the government officials who colluded with it to restrict your speech. See Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005).
Most courts, however, haven’t gone that far. They have merely said you can sue when the government uses pressure to coerce a private entity to restrict your speech (as opposed to colluding with it). For example, the federal appeals court in New York ruled that a city official’s letter urging a billboard company to stop displaying a church’s anti-homosexuality billboard potentially violated the First Amendment, since the letter cited his “official authority as ‘Borough President of Staten Island’ and thus could constitute an “implicit” threat, even though the official lacked direct regulatory authority over the billboard company and did not explicitly threaten any reprisals. See Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003).
Similarly, that court revived a free speech lawsuit by businessman over a village official’s letter to the Chamber of Commerce criticizing it for publishing the businessman’s ad critical of village policies in the Chamber’s publication. Rattner v. Netburn, 930 F.2d 204 (2d Cir. 1991).
And other federal appeals courts ruled that pressure on government contractors to fire employees for their speech violated the First Amendment. See Korb v. Lehman, 919 F.2d 243 (4th Cir. 1990); Reuber v. U.S., 750 F.2d 1039 (D.C. Cir. 1985).
To take advantage of the Eighth Circuit’s favorable ruling in Dossett v. First State Bank, the attorney generals needed to file their lawsuit in a state in the 8th Circuit, where the Dossett decision is binding precedent. But they didn’t. Oddly, they filed their lawsuit in Louisiana instead.
