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Restricting Freedom of Speech: An Analysis of Censorship
Cases in Relation to Misinformation during the COVID-19

Crisis
Anika Jain210

With the global predominance of social media, many argue that
there is a newfound need for censorship to prevent the spread
of misinformation. However, political censorship restricts one
of our most fundamental rights. Through the analysis of four
Supreme Court cases regarding the right to free speech —
Schenck v. US (1919), New York Times Co. v. US (1971),
Missouri v. Biden (2022), and Moody v. NetChoice, LLC (2022)
— this paper serves to analyze whether censorship is ever
necessary to uphold trust in institutions, or if censorship is
antithetical to trust in government, with a special focus on the
spread of COVID-related misinformation.

Introduction

In recent decades, America has become increasingly
polarized across the political spectrum. Many analysts blame
misinformation in social media for the public’s inability to
recognize the truth and lack of cooperative action. Through
echo chambers of political discourse, social media companies
target content that reinforces people’s implicit biases.211 In the
early 2000’s, entrepreneurs such as Mark Zuckerberg,
co-founder of Meta (previously Facebook), held a “...naive
conception of human psychology, little understanding of the
intricacy of institutions, and no concern for external costs

211 Del Vicario, “The Spreading of Misinformation Online,” 2016, 554–559.
210 Brandeis University Undergraduate, Class of 2026.

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imposed on society.”212 As a result, social media entrepreneurs
made irreversible impacts on the way humans interact with one
another, and thus, the very fabric of democracy. Controversy
over free speech is not a new trend in American politics. Since
the early 20th century, the Supreme Court has been developing
its stance on the right to free speech, especially when
restricting that right becomes necessary to defend democracy.
During the COVID-19 crisis, debates over misinformation
reignited amongst both political and medical scholars, as a
direct result of how conflict, confusion, and conspiracy theories
that were circulated online heightened psychological distress
and triggered actions based on panic and fear.213 Although
misinformation poses a threat to citizens’ trust in institutions,
political censorship is similarly unappealing due to its
restriction of the fundamental right to free speech.

The First Amendment

Free speech in America is protected by the First
Amendment in the Bill of Rights: “Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.”214 Due to
the opening phrase, “Congress shall make no law,” the First
Amendment initially only applied to federal laws. After the
Civil War, the Reconstruction Amendments — the Thirteenth,
Fourteenth, and Fifteenth Amendments — were passed and
ratified to protect former slaves from discrimination and grant
them civil rights. Using the Due Process Clause of the

214 “U.S. Constitution: First Amendment.”

213 Nelson, “The Danger of Misinformation in the COVID-19 Crisis,” 2022,
510-512.

212 Haidt, “Why the Past 10 Years of American Life Have Been Uniquely
Stupid,” 2022.

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Fourteenth Amendment, the Supreme Court began to
incorporate the Bill of Rights to apply to state governments as
well. The Due Process Clause enforces that no state shall
“deprive any person of life, liberty, or property, without due
process of law.”215 Beginning with Gitlow v. New York (1925),
the Supreme Court began incorporating the First Amendment
to encode free speech at the state level via the Due Process
Clause. However, the right to free speech is not without
limitation, as proven by lawsuits over slander and libel.

The Evolution of Supreme Court Rulings Regarding

Freedom of Speech

Schenck v. US (1919)

In 1919, the landmark Supreme Court case Schenck v.
US placed restrictions on the right to free speech.216 The case
began in 1917 when Congress passed the Espionage Act,
prohibiting any interference with the World War I draft. A
socialist named Charles Schenck disregarded the act and
distributed pamphlets arguing that the draft coerced citizens
into serving in the army, despite the Thirteenth Amendment
prohibiting involuntary servitude. Because the pamphlets also
promoted peaceful disobedience against the draft, Schenck was
accused of conspiracy to violate the Espionage Act by
hindering recruitment and encouraging insubordination in the
military. The Supreme Court unanimously upheld the
conviction of Schenck. In the majority opinion, Justice Oliver
Wendel-Holmes formulated the clear and present danger test to
enable the government to restrict free speech when the speech

216 Schenck v. United States.

215 Chapman and Yoshino, “The Fourteenth Amendment Due Process
Clause.”

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creates a clear and present danger. Justice Wendel-Holmes
presented two conditions that must be met: first, the speech
must impose a substantive evil that may follow, and second, the
speech must create a real, imminent threat. He famously
compared dangerous speech to shouting “Fire!” in a crowded
theater, which is not protected by the First Amendment.

The summer after the case was decided, Justice
Wendel-Holmes was on a train with Judge Billings Learned
Hand, a renowned jurist and judicial philosopher, who
disagreed with the ruling of Schenck. Judge Learned Hand told
Justice Wendel-Holmes that the clear and present danger test,
although a useful assessment of dangerous speech, was
misapplied in the case. Throughout the 1920s, the Supreme
Court upheld many speech restrictions justified by the clear
and present danger test, but Justice Wendel-Holmes along with
Justice Louis D. Brandeis started to dissent from the
restrictions of free speech, also justifying their reasoning
through the clear and present danger test. Both sides using the
same test to reach different results called into question the
effectiveness of the test, especially considering that the creator
of the test changed his stance.

It was not until 1969 that the Supreme Court finally
revisited the Schenck ruling in the case Brandenburg v. Ohio.
Brandenburg, a KKK leader, made a speech at a rally and was
convicted under an Ohio criminal syndicalism law.217 The
Court held that the Ohio law violated Brandenburg’s right to
free speech. Some analysts claim this ruling overturned
Schenck v. US (1919) by applying a new standard: speech can
now be punished only if it is “likely” to produce “imminent,
lawless action.” However, another interpretation is that the
Court reworded the Clear and Present Danger Test with a new
realization of the potential application of Schenck that
questions the very purpose of First Amendment speech

217 Brandenburg v. Ohio.

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protections. If the purpose is to protect individual rights, then
the incentive for speech protection is to avoid restrictions on
exercising individual thought. However, if the goal is to protect
democracy, then it is important to note that democracy requires
the ability to criticize the government, as it is the only form of
government that can withstand strong dissent against itself.    

Significance to the COVID-19 Crisis

Both cases remain relevant for creating the tests used in
reviewing freedom of speech disputes. But how can we apply
these tests to assess the danger of misinformation during the
COVID-19 crisis? Falsehoods regarding COVID are
ubiquitous. An ongoing research project conducted by Kaiser
Family Foundation reports that 78 percent of US adults either
believed or were unsure about at least one of eight false
statements about the pandemic or vaccines. Figure 1 illustrates
the percentages of people who have heard the false statements
and believe it to be true or are unsure if it’s true.218

218 Lopes, et al, “KFF Vaccine Monitor: Media and Misinformation,” 2021.

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Figure 1

Likelihood to believe misinformation correlated
significantly with participants’ vaccination status and trusted
news sources.219 64 percent of unvaccinated adults believed or
were uncertain about four or more of the misconceptions about
COVID-19. Furthermore, the group of people who hold four or
more misconceptions and also trust sources like CNN,
MSNBC, and NPR is relatively small at 11 percent. Relatively
larger is the group of people who believe four or more
misconceptions and trust media sources like One America
News, Fox News, and Newsmax, at 37 percent, 36 percent, and
46 percent respectively. Circulating misinformation about the

219 Lopes, et al, “KFF Vaccine Monitor: Media and Misinformation,” 2021.

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COVID vaccine prevented many people from taking necessary
precautions to protect themselves and those around them.
Earlier this year, researchers at Brown University and
Microsoft AI Health estimated that of the over 641,000
COVID-19 deaths since January 1, 2021, nearly 319,000
COVID-19 deaths could have been avoided if all adults had
been vaccinated.220

In this context, the spread of misinformation
surrounding COVID-19 vaccines arguably posed a “real,
imminent threat” of which a “substantive evil” followed. The
tests conceived in both Schenck v. US (1919) and Brandenburg
v. Ohio (1969) suggest that a threat to national safety is
justification for censorship. But in exchange for the unyielding
right to free speech, hundreds of thousands of innocent lives
were lost during the COVID-19 crisis. Although the spread of
misinformation clearly demonstrates the detrimental
capabilities of the unrestricted right to free speech, cases
regarding the censorship of the press provide more context as
to why people are unwilling to compromise fundamental
freedoms.

The Evolution of Supreme Court Rulings Regarding

Freedom of the Press

New York Times Co. v. US (1971)

New York Times Co. v. US (1971) is another landmark
Supreme Court case that interprets free speech, with specific
focus on the freedom of the press.221 The Nixon administration
sued The New York Times when the government discovered
they were planning to publish the leaked document, “Report of

221 New York Times Company v. United States.

220 Simmons-Duffin and Nakajima, “This Is How Many Lives Could Have
Been Saved with Covid Vaccinations in Each State,” 2022.

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the Office of the Secretary of Defense Vietnam Task Force” –
popularly known as “The Pentagon Papers.” The act of
stopping a publication before it is released to the public is
known as prior restraint. In this scenario, the Supreme Court
declared the government’s use of prior restraint to be
unjustified because the government must prove that the public
release of information would cause inevitable, direct, and
immediate danger to the country.

Once again, the Supreme Court utilized familiar
rhetoric about when restricting First Amendment rights is
acceptable. Within the 6-3 decision, the Court’s majority
splintered into six concurring opinions. Citing the clear and
present danger test, Justice William J. Brenner Jr. concluded
that prior restraint would be permissible in circumstances
where there was sufficient harm posed to national security.
Taking a more extreme position, Justice Hugo Black argued
that “only a free and unrestrained press can effectively expose
deception in government,” and rejected any censorship of
publications.222

Missouri v. Biden (2022)

In October 2020, three epidemiologists — Jayanta
Bhattacharya, Sunetra Gupta, and Martin Kulldorff, of
Stanford, Oxford, and Harvard Universities respectively —
published their views about COVID-era lockdowns in a joint
statement called the “Great Barrington Declaration.”223 They
explained that lockdowns are not net beneficial and that
resources should be directed to protecting vulnerable groups in
society rather than shutting them down. In the declaration, the
scientists attribute the lockdown for “lower childhood
vaccination rates, worsening cardiovascular disease outcomes,

223 Younes, “The U.S. Government's Vast New Privatized Censorship
Regime,” 2022.

222 Robertson, “New York Times Co. v. United States.”

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fewer cancer screenings, and deteriorating mental health –
leading to greater excess mortality in years to come, with the
working class and younger members of society carrying the
heaviest burden.”224 The document also advocated for
reinstating in-person school and developing herd immunity
until a vaccine was made available.

Bhattacharya, Gupta, and Kulldorff discovered that
online platforms such as YouTube and Twitter were heavily
censoring their scientific opinions from the public.
Bhattacharya and Kulldorff are now plaintiffs in Missouri v.
Biden, a case brought by the attorney generals of Missouri and
Louisiana, as well as the New Civil Liberties Alliance
(NCLA). The plaintiffs allege that the Biden administration
and a number of federal agencies violated the First Amendment
by coercing social media platforms into censoring critiques of
the government’s COVID policies and thereby turning private
action into state action. In a concurring opinion last year,
Justice Thomas articulated the Supreme Court’s views: “[t]he
government cannot accomplish through threats of adverse
government action what the Constitution prohibits it from
doing directly.”225 In other words, the government cannot direct
social media companies to silence people if the Constitution
prohibits the restriction of free speech. Nonetheless, it is worth
considering whether the “Great Barrington Declaration” incited
imminent, lawless action or whether Bhatttacharya, Gupta, and
Kuldorff were simply exercising their right to critique
government policy. Once again, there is a clear conflict
between protecting individual rights and protecting democracy.

The Emerging Stance for Free Speech Online

225 Younes, “The U.S. Government's Vast New Privatized Censorship
Regime,” 2022.

224 Kulldorff, et al, “Great Barrington Declaration and Petition,” 2020.

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Debates over free speech and censorship law remain
relevant, but with an added twist — social media. In 2018, data
scientists from the Massachusetts Institute of Technology
collected and analyzed 12 years of data from Twitter, starting at
the platform’s inception in 2006.226 The data comprises
approximately 126,000 stories tweeted by 3 million people
more than 4.5 million times. Tweets containing false
information were six times faster than truthful tweets to reach
1500 people on Twitter. They are also 70% more likely to be
retweeted than truthful ones. To retweet is to repost or forward
a message by another user. While the team reported that false
news is propagated faster and wider for all forms of news, the
problem was particularly apparent for political news. The
implications of this phenomena are profound – political
misinformation is spreading faster than truthful information,
which places political institutions at risk of instability.

Moody v. NetChoice, LLC (2022)

Missouri v. Biden is not the only example of a
censorship debate today. There are many major cases regarding
censorship currently being considered. Earlier this year, an
industry group by the name of NetChoice, whose members
include Facebook and Instagram owner Meta Platforms Inc.,
Google parent Alphabet Inc., and Twitter Inc., challenged a
Florida law that stops social media companies from restricting
political speech. A federal appeals court blocked the law, but
on September 21, 2022, Florida asked the Supreme Court to
revive the law. The case, known as Moody v. Net Choice, LLC,
is currently pending a petition.

The ruling came days after a different federal appeals
court allowed a similar Texas law, known as House Bill 20, to
take effect. House Bill 20 prohibits large social media

226 Vosoughi, et al, “The Spread of True and False News Online,” 2018.

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companies from censoring or interfering with digital
expression and has been challenged by NetChoice. The Fifth
U.S. Circuit Court of Appeals permitted the bill to go into
effect after lifting the block that had been imposed by a lower
court. “Today we reject the idea that corporations have a
freewheeling First Amendment right to censor what people
say,” stated Judge Andrew S. Oldham of the U.S. Court of
Appeals for the Fifth Circuit.”227 The goal of the House Bill 20
is to limit political censorship by enabling users to sue social
media platforms for removing their posts. This may mean that
the current stance of the judiciary is leaning in favor of the
unrestricted right to free speech.

Conclusion

As social media’s role in global politics continues to
grow exponentially, the Supreme Court’s stance on censorship
will likely continue to develop and solidify. While we retain
our right to spread our opinions online, some will misuse their
power by spreading information that exacerbates polarization.
The implications of an unrestricted right to free speech will
have unfathomable consequences on citizens’ trust in
institutions. However, censorship remains undesirable because
of how the Supreme Court precedents have struggled to define
“dangerous speech” and to uphold a consistent standard by
which to limit it. Part of the responsibility lies with social
media companies who need to implement better screening
standards for viral posts that share inaccurate information.
Then, with the influence that everyday users hold online today,
either we need to be accountable for ensuring the content we
post is truthful, or we need to be ready to sacrifice individual
freedoms to prevent exacerbated political instability.

227 McCabe, “A Federal Court Clears the Way for a Texas Social Media
Law,” 2022.

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Cases Cited

Brandenburg v. Ohio, 395 U.S. 444 (1969).
New York Times Company v. United States, 403 U.S. 713

(1971).
Schenck v. United States, 249 U.S. 47 (1919).

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