The Government Censored Me and Other Scientists. We are Winning the Battle as We Head to the Supreme Court.
The Illusion of Consensus is closely documenting and examining the most important free speech battle of our age.
I had the pleasure of publishing a long-form essay in Bari Weiss’ singular The Free Press (go support her if you’re not already!) on the implications of my victory against the Biden administration for coercing social media companies to censor views such as my own. The full piece is re-published below.
Since then, the story has further evolved: rather than following court orders and respecting the First Amendment, the government has appealed the case. Coercive censorship is the preferred state of rotten affairs in the White House. This means the case will go to the Supreme Court.
Shortly after this appeal motion, the Supreme Court responded as Justice Alito ordered a temporary halt to the preliminary injunction (that prohibited the government from coercing content moderation decisions by social media companies) until September 22nd. Rav Arora and I recorded an urgent podcast responding to this escalation available to subscribers below:
Off to the Supreme Court we go — in what is the most consequential legal case involving free speech in recent history.
— Jay Bhattacharya
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The Government Censored Me and Other Scientists. We Fought Back—and Won.
By: Dr. Jay Bhattacharya
When I was four, my mother took her first flight and first trip out of her native India to the U.S. with me and my younger brother in tow. We were going to meet my father, an electrical engineer and rocket scientist by training, who had won the U.S. visa lottery in 1970. He had moved to New York a year earlier. By the time we arrived he was working at McDonald’s because engineering jobs had dried up during a recession.
Both of my parents—children of the violent partition of India and East Pakistan (now Bangladesh)—had grown up in poverty, my mother in a Calcutta slum. They immigrated to this country because they believed in the American dream. That belief led to the success my father ultimately found as an engineer and my mother found running a family daycare business.
Our family had indeed won the lottery. But coming to America meant something more profound than financial opportunity.
I remember in 1975 when a high court found that then-prime minister of India Indira Gandhi had interfered unlawfully in an election. The ruling disqualified her from holding office. In response, she declared a state of emergency, suspended democracy, censored the opposition press and government critics, and threw her political opponents in jail. I remember the shock of these events and our family’s collective relief that we were in the U.S., where it was unimaginable that such things could happen.
When I was 19, I became an American citizen. It was one of the happiest days of my young life. The immigration officer gave me a civics test, including a question about the First Amendment. It was an easy test because I knew it in my heart. The American civic religion has the right to free speech as the core of its liturgy. I never imagined that there would come a time when an American government would think of violating this right, or that I would be its target.
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Unfortunately, during the pandemic, the American government violated my free speech rights and those of my scientist colleagues for questioning the federal government’s pandemic policies.
My parents had taught me that people here could criticize the government, even over matters of life and death, without worry that the government would censor or suppress us. But over the past three years, I have been robbed of that conviction. American government officials, working in concert with big tech companies, have attacked and suppressed my speech and that of my colleagues for criticizing official pandemic policies—criticism that has been proven prescient.
On Friday, at long last, the Fifth Circuit Court ruled that we were not imagining it—that the Biden administration did indeed strong-arm social media companies into doing its bidding. The court found that the Biden White House, the CDC, the U.S. Surgeon General’s office, and the FBI “engaged in a years-long pressure campaign [on social media outlets] designed to ensure that the censorship aligned with the government’s preferred viewpoints.”
The judges described a pattern of government officials making “threats of ‘fundamental reforms’ like regulatory changes and increased enforcement actions” if we did not comply. The implication was clear. To paraphrase Al Capone: Nice company you have there. It’d be a shame if something were to happen to it.
It worked. According to the judges, “the officials’ campaign succeeded. The platforms, in capitulation to state-sponsored pressure, changed their moderation policies.”
In exposing this behavior—and in declaring it a likely violation of the First Amendment—the ruling is not just a victory for my fellow scientists and me, but for every single American.
The trouble began on October 4, 2020, when my colleagues and I—Dr. Martin Kulldorff, a professor of medicine at Harvard University, and Dr. Sunetra Gupta, an epidemiologist at the University of Oxford—published the Great Barrington Declaration. The Declaration called for an end to economic lockdowns, school shutdowns, and similar restrictive policies on the grounds that they disproportionately harm the young and economically disadvantaged while conferring limited benefits to society as a whole.
The Declaration endorsed a “focused protection” approach that called for strong measures to protect high-risk populations while allowing lower-risk individuals to return to normal life with reasonable precautions. Tens of thousands of doctors and public health scientists signed our statement.
With hindsight, it is clear that this strategy was the right one. Sweden, which in large part eschewed lockdown and, after early problems, embraced focused protection of older populations, had among the lowest age-adjusted all-cause excess deaths than nearly every other country in Europe and suffered none of the learning loss for its elementary school children. Similarly, Florida has seen lower cumulative age-adjusted all-cause excess deaths than lockdown-obsessed California since the start of the pandemic.
But at the time, our proposal was viewed by high government officials like Anthony Fauci and some in the Trump White House, including Deborah Birx, then-White House Coronavirus Response Coordinator, as a kind of heresy.
Federal officials immediately targeted the Great Barrington Declaration for suppression because it contradicted the government’s preferred response to Covid. Four days after the Declaration’s publication, then-director of the National Institutes of Health, Dr. Francis Collins, emailed Fauci to organize a “devastating takedown” of it.
Almost immediately, social media companies such as Google/YouTube, Reddit, and Facebook censored mentions of the Declaration.
As The Free Press revealed in its Twitter Files reporting, in 2021 Twitter blacklisted me for posting a link to the Great Barrington Declaration. YouTube censored a video of a public policy roundtable of me with Florida governor Ron DeSantis for the crime of telling him that the scientific evidence for masking children is weak.
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I have been a professor researching health policy and infectious disease epidemiology at a world-class university for decades. I am not a political person; I am not registered with either party. In part that is because I want to preserve my total independence as a scientist. I have always viewed my job as telling people honestly about the data issues, regardless of whether Democrats or Republicans liked the message.
Yet at the height of the pandemic, I found myself smeared for my supposed political views, and my views about Covid policy and epidemiology were removed from the public square on all manner of social networks. I could not believe this was happening in the country I so love.
In August 2022, my colleagues and I finally had a chance to fight back. The Missouri and Louisiana attorneys general asked me to join as a plaintiff in their case, represented by the New Civil Liberties Alliance, against the Biden administration. The aim of the suit was to end the government's role in this censorship—and restore the free speech rights of all Americans in the digital town square.
Lawyers in the Missouri v. Biden case deposed representatives, under oath, from many federal agencies involved in the censorship efforts, including Anthony Fauci.
Broad discovery of email exchanges between the government and social media companies showed an administration willing to use its regulatory powers against social media companies that did not comply with censorship demands.
The case revealed that a dozen federal agencies—including the CDC, the Office of the Surgeon General, and the Biden White House—pressured social media companies like Google, Facebook, and Twitter to censor and suppress even true speech contradicting federal pandemic priorities. For instance, in 2021, the White House threatened social media companies with damaging regulatory action unless it censored scientists who shared the demonstrable fact that the Covid vaccines do not prevent people from getting Covid.
True or false, if speech interfered with the government’s priorities, it had to go.
On Independence Day this year, federal Judge Terry Doughty issued a preliminary injunction in the case, ordering the federal government to immediately stop coercing social media companies to censor protected free speech. In his decision, Justice Doughty compared the administration’s censorship infrastructure to an Orwellian Ministry of Truth. His ruling decried the vast federal censorship enterprise that dictated who and what social media companies could publish.
The government appealed, convinced it should have the power to censor scientific speech. An administrative stay followed and lasted much of the summer. But on Friday, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit unanimously restored a modified version of the preliminary injunction, telling the government to stop using social media companies to do its censorship dirty work:
Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social media companies’ decision-making processes.
As I read the decision, I was overcome with emotion. I think my father, who died when I was 20, would be proud that I played a role in this. I know my mother is.
That is because the victory is not just for me but for every American who felt the oppressive force of this censorship industrial complex during the pandemic. It is a vindication for parents who advocated for some semblance of normal life for their children but found their Facebook groups suppressed. It is a vindication for vaccine-injured patients who sought the company and counsel of fellow patients online but found themselves gaslit by social media companies and the government into thinking their personal experience of harm was all in their heads.
The decision provides some solace for scientists who had deep reservations about lockdowns but censored themselves for fear of the reputational damage that came with being falsely labeled misinformers. They were not wrong in thinking science wasn’t working right; science simply cannot function without free speech.
The decision isn’t perfect. Some entities at the heart of the government’s censorship enterprise can still organize to suppress speech. For instance, the Cybersecurity and Infrastructure Security Agency (CISA) within the Department of Homeland Security can still work with academics to develop a hit list for government censorship. And the National Institute of Allergy and Infectious Diseases (NIAID), Fauci’s old organization, can still coordinate devastating takedowns of outside scientists critical of government policy.
But the headline is a good one: the federal government can no longer threaten social media companies with destruction if they don’t censor on behalf of the government.
The Biden administration, which has proven itself to be an enemy of free speech, will surely appeal the decision to the Supreme Court. But I am hopeful that we will win there, just as we have at every venue in this litigation. I am grateful for the resilience of the U.S. Constitution, which has withstood this challenge.
But I can never go back to the uncomplicated faith and naive confidence I had in America when I was young. Our government is not immune to the authoritarian impulse. I have learned the hard way that it is only we, the people, who must hold an overreaching government accountable for violating our most sacred rights. Without our vigilance, we will lose them.
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