Twitter Appellants’ Censorship Claims Fail Under Chronology Test, Says DOJ Lawyer
The lawyer for three Twitter user appellants who allege senior Health and Human Services officials coerced the platform into suspending their accounts and censoring their content for spreading COVID-19 misinformation in their tweets faced tough questions from a 6th U.S. Circuit Appeals Court panel in oral argument Thursday to explain why their claims against the government don’t fail under the chronology test. The appellants in Changizi v. HHS (docket 22-3573) are seeking to reverse the district court’s dismissal of their complaint for lack of jurisdiction and failure to state a claim, arguing the lower court erroneously concluded the plaintiffs lacked standing because they suffered no concrete harm.
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DOJ asserts Twitter adopted the misinformation policy under which it disciplined the plaintiffs well before any of the governmental actions or statements that the plaintiffs characterize as coercive. The government also maintains that the district court was correct to decide there’s no concrete case or controversy between plaintiffs and defendants, and that the plaintiffs failed to allege plausible First and Fourth amendment claims.
The appellants concede Twitter imposed “a very small moderation of some speech” in March 2021 before HHS officials began speaking out on the harms of COVID-19 misinformation on social media, and before Surgeon General Vivek Murthy put out his request for information on the issue in March 2022, John Vecchione, New Civil Liberties Alliance senior litigation counsel, told the panel. But a 12-hour suspension of some Twitter accounts was the extent of the disciplinary measures the platform doled out on its own to help thwart COVID-19 misinformation, said Vecchione. That was before the government “started pounding on these social media companies” to do more, he said.
It wasn’t until after HHS escalated its rhetoric about COVID-19 misinformation that Twitter users “got thrown off for saying things the government didn’t like,” said Vecchione. “Whatever the timeline is, the delta in the effects of what Twitter was doing after the government started speaking, that delta, that increase in censorship, would be enough to maintain the complaint,” he said. “What is alleged here is that once the government started speaking, the curtain came down, and darkness resulted, as far as free speech was concerned,” he said.
For the federal courts to have jurisdiction, “the injuries that plaintiffs allege must have been caused by HHS and must be redressable by an injunction against HHS,” said DOJ attorney Daniel Winik. “But Twitter disciplined plaintiffs under policies it put in place before the series of governmental statements that the plaintiffs describe as the surgeon general’s initiative,” he said.
Twitter, under Elon Musk’s ownership, “is no longer enforcing any COVID misinformation policy, even after what plaintiffs characterize as the imposition of coercive pressure” from the government, said Winik. DOJ doesn’t agree with the plaintiffs that Twitter imposed more strenuous enforcement actions after HHS officials began speaking out, he said. “Just from the face of this complaint, there’s no basis to conclude that any of the injuries that they complain about are the government’s fault,” he said.