President-elect Donald Trump has nominated Dr. Jay Bhattacharya, a Stanford professor and an outspoken critic of Covid lockdowns, to head the National Institutes of Health. While the pick is likely to reignite debates over the U.S. pandemic response, his supporters are claiming it’s a vindication of his assertions that the government infringed upon his First Amendment rights by trying to suppress his criticism.
In the years since the start of the pandemic, Bhattacharya has repeatedly claimed, without evidence, that the government worked with social media companies to suppress his views. But a recent Supreme Court ruling found no indication that content moderation decisions by tech platforms were made at the government’s behest. To his supporters, Bhattacharya’s supposed status as a victim of government censorship is the key element of his hero’s journey. And it’s simply not true.
To his supporters, Bhattacharya’s supposed status as a victim of government censorship is the key element of his hero’s journey. And it’s simply not true.
It’s important to remember that in the early days of the Covid-19 pandemic, everyone was operating with limited information. Many people, including experts, made suggestions that later proved misguided as we learned more about the virus. Various articles were published that later looked foolish, while others looked prescient. Mixed in with that, though, were tons of conspiracy theories and half-baked ideas, and separating out the legitimate information from the nonsense wasn’t always easy.
Editorial decisions were made with limited information, including by internet platforms that decided they should try to limit potentially dangerous suggestions from going viral (in multiple senses of the word). In that context, some grace is warranted for those whose predictions turned out to be wrong.
Bhattacharya was one of the authors of the controversial Great Barrington Declaration, which in October 2020 condemned lockdowns and argued for a more targeted approach focused on protecting the vulnerable while allowing most people to “resume life as normal.” The document drew sharp criticism from many scientists at the time, who felt it was reckless and would lead to more deaths in the absence of vaccines.
Given the number of deaths of younger people from Covid (approximately 25% of total deaths from Covid were those under age 65), and that Covid soon became the deadliest pandemic in American history, it’s arguable that while lockdowns and waiting for vaccines may not have been a perfect solution, pushing people to build up “acquired immunity” by catching the disease and not taking any significant preventive action, as the Great Barrington Declaration did, could very well have led to even worse outcomes.
Now, in a somewhat farcical twist, Bhattacharya is poised to take over the very agency whose former director he accused of orchestrating a campaign against him.
The problem is there’s basically zero evidence to support Bhattacharya and his supporters’ claims of censorship. It is true that some internet sites appeared to remove or limit access to the document. But, as with medical professionals not being sure how best to handle Covid, the same was true of social media companies, which struggled with how best to handle the spread of potentially dangerous information that could have resulted in harm to users.
Many companies chose, of their own free will and as they were allowed as private actors, to downplay certain information that they felt might do more harm than good. That is their own First Amendment-protected right as private entities in the United States.
Bhattacharya, however, has insisted that this was all done at the government’s behest. His evidence for this was a correlation between internet company actions and a single email thread between Francis Collins, who was the director of NIH at the time, and Anthony Fauci, who was the director of the National Institute of Allergy and Infectious Diseases.
Collins was concerned that the declaration could lead to dangerous behavior and emailed Fauci, suggesting that “there needs to be a quick and devastating published take down of its premises. I don’t see anything like that on line yet — is it underway?”
The court pointed out that internet companies, as private entities, have the right to moderate as they see fit. There was no evidence of a First Amendment violation.
That line has taken on quite a life of its own, with many people falsely repurposing the “take down” phrase to mean that the declaration needed to be suppressed, removed or otherwise hidden. In context, it is quite clear that’s not what Collins meant. He was asking for “a take down” in the sense of a public response to it that challenged its arguments. Indeed, Fauci responded to Collins’ email by pointing to a Wired piece that challenged many of the arguments in the declaration.
This past week, the editorial board of The Free Press (which has published articles by Bhattacharya falsely supporting his unproven claims of “censorship”) highlighted the “takedown” line (which it misleadingly condensed from two words to one) and said that Bhattacharya’s claims of government censorship were vindicated by the courts.
Oddly, it only discusses the ruling from the 5th U.S. Circuit Court of Appeals. It never mentions that this past summer, the Supreme Court, in a decision authored by Trump appointee Justice Amy Coney Barrett, reversed that ruling and remanded it to the lower courts for further adjudication. That ruling noted that the plaintiffs in the case, including Bhattacharya, totally failed to show any evidence connecting the statements of the U.S. government to unrelated actions by social media companies.
The majority opinion noted that “neither the timing nor the platforms line up … so the plaintiffs cannot show that these restrictions were traceable to the White House officials. In fact, there is no record evidence that White House officials ever communicated at all with [the platforms in question].” The court further noted that the only real evidence regarding Bhattacharya was the email between Collins and Fauci, but that the lawsuit in question was not against either. Rather, it was against unrelated individuals in the White House and the Centers for Disease Control and Prevention. Bhattacharya responded to this ruling on his X account, without acknowledging what the Supreme Court actually said. Instead, he said that “free speech in America, for the moment, is dead.” Except anyone who actually read the ruling would see that’s not what was said at all. Instead, the court pointed out that internet companies, as private entities, have the right to moderate as they see fit, and without actual traceable evidence of government coercion, there was no evidence of a First Amendment violation. Indeed, as Barrett wrote, the evidence showed that the platforms were all moderating similar content “long before” anyone in the government spoke to them about anything, and further that the evidence shows that moderation actions from the platforms appeared to be exercises of “independent judgment.” She further noted how even when some White House officials later flagged content to review, the platforms were quick to push back and respond that the content in question “did not violate company policy.” Basically, this was all an example of the marketplace of ideas at work, not censorship. This was all an example of the marketplace of ideas at work, not censorship.
Each individual party made its own expressive choices. Bhattacharya chose to co-author the Great Barrington Declaration. Some social media companies chose not to promote it as widely as he would have liked. Some White House officials also didn’t agree with the proposed interventions and hoped for a public response to the declaration, but there remains no evidence that any actions by private companies were taken at the behest of the government. It was their own First Amendment right to handle their own editorial discretion. Or, as Barrett explained, all of the “evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment.” Just as we should have some allowance for wrong calls made early on in the pandemic, no matter in which direction, so too should we expect some amount of wrong calls by social media companies in how they chose to moderate. They faced the same lack of information and had to make choices based on which policies they felt were best. Not all of them may have turned out to be perfect, but there remains no indication that any of them involved a First Amendment violation. Bhattacharya’s ascension to Collins’ old job does nothing to vindicate his arguments, nor does it change the complete lack of evidence that the majority of the Supreme Court found regarding Bhattacharya’s never-ending claims of government censorship.
Mike Masnick
Mike Masnick is the founder and editor of Techdirt.com and the CEO of the Copia Institute. 
