#lang pollen

◊define-meta[page-title]{Pandemic Speech}

◊define-meta[short-title]{Pandemic Speech}

◊define-meta[original-date]{2021-01-29}

◊define-meta[snippet]{How has social media responded to misinformation during the pandemic? And could the government force them to?}

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◊abstract{

Social-media platforms have adopted an unprecedented approach to

misinformation relating to COVID-19: they are now willing to delete

content that is false. This article situates COVID-19 misinformation

in the spectrum of hate speech, misinformation, and disinformation. It

then explores the social-media platforms' approaches to policing

speech before and during the COVID-19 pandemic through the dual lenses

of the American First Amendment the Canadian

◊em{Charter}. Social-media platforms appear to be making their content

decisions under a framework more akin to that from Canada’s

◊em{Charter} than from the American First Amendment. Further, it is

possible, in admitedly unlikely circumstances, that Canada could

require social-media platforms to perform content-based deletion of

specific misinformation during a pandemic.

This article was prepared in April 2020 for my Communications Law

course at UBC's Peter A. Allard School of Law. I thank Professor

Festinger and my classmates for the valuable discussions about media

and communications. The article is already dated. When I wrote it,

@realdonaldtrump still had a Twitter account and Facebook's Oversight

Board was not yet operational. I am most skeptical of my Section 1

analysis at the end of the article, especially thinking about how

Facebook's Oversight Board recently applied International Human Rights

standards to overturn Facebook's deletion of COVID-19 misinformation.

}

◊heading{Introduction}

On 27 March 2020, Twitter deleted a tweet written by Rudy Giuliani

that contained a false claim that hydroxychloroquine was "100%

effective" at treating COVID-19.◊note{◊see["Porter"]

◊see-also["Helderman" #:parenthetical "reporting instead that Twitter

“locked Giuliani's account until he deleted [the tweet]”"]} On 30

March 2020, Facebook, Twitter, and Youtube deleted videos of the

Brazilian President, Jair Bolsonaro, that claimed "hydroxychloroquine

is working in all places."◊note{◊cite["Constine"]

◊see-also["Wagner1"]} These deletions reflect an unprecedented change in

the way major social networks treat misinformation.

In the early stages of the COVID-19 pandemic, Twitter, Facebook,

YouTube, Google, and others jointly committed to combat COVID-19

misinformation.◊note-see["Statt"] Twitter and Facebook broadened their

definitions of harm to include COVID-19 misinformation. For example,

Twitter now recognizes as harmful "content that goes directly against

guidance from authoritative sources of global and local public health

information."◊note-cite["Twitter COVID Policy" #:parenthetical

"updated 1 April 2020"] Facebook is deviating from its long-standing

practice of not fact-checking politicians.◊note{◊see["Wagner2"

#:parenthetical "in January, Facebook said they were “sticking with a

controversial policy that stipulates the company will not fact-check

posts from politicians”"]} These changes are a specific response to

COVID-19. These platforms have never before had a policy to delete

pseudoscientific medical misinformation (e.g. claims that homeopathy

or acupuncture are effective, or anti-vaccination propaganda). Only

recently, in late 2019, did Facebook begin downranking---not

deleting---content that contained exaggerated health claims

(e.g. “miracle cure[s]”) or that advertised a health

product.◊note{◊cite["FB Health Claims" #:terminal ";"]

◊see-also["Perez"]}

In this article, I situate COVID-19 misinformation within a spectrum of

hate speech, disinformation, and misinformation. I explain social

media platforms' approach to non-COVID-19 misinformation through a

model of self-governance that has until now appeared rooted in

American First Amendment values. However, the tactics that the

platforms have adopted with respect to COVID-19 misinformation reveal

that their approach to policing expression is actually more akin to

that found in Canada under ss. 1 and 2(b) of the ◊em{Charter of Rights

and Freedoms}.◊note{◊cite["Charter" #:pinpoint "ss 1, 2(b)"] Section

2(b) of the ◊em{Charter} establishes freedom of expression, "including

freedom of the press and other media of communication" as fundamental

freedoms. Section 1 of the ◊em{Charter} "guarantees the rights and

freedoms set out in [the ◊em{Charter}] subject only to such reasonable

limits prescribed by law as can be demonstrably justified in a free

and democratic society."} When deciding to adopt new policies in

response to COVID-19, the platforms are performing a balancing

exercise rather than adopting an absolutist approach to free

expression on their platforms.

I present the factors that the platforms are likely weighing during

this balancing exercise, drawing from the factors that are relevant to

a s. 1 analysis when the government infringes a person's right to free

expression in Canada. The risk of harm appears to play a prominent

role in the platforms' decision-making processes. Yet the risk of harm

is present in non-COVID-19 misinformation as well. I explore the

conception of harm that platforms might be adopting in their balancing

exercise that would explain their hands-off approach until now.

Having made the decision to police this misinformation, the platforms

are now faced with a task they have in the past claimed is

insurmountable: categorizing claims on their platform as true or

false---permissible or impermissible.◊note{◊see-eg["Newton"]} This

involves value-laden decisions about what entities to consider

authoritative, distinguishing claims of fact from opinion, and

assessing the risk of harm. I will present their approach to these

issues.

Last, I consider whether Canada could ◊em{require} platforms to police

COVID-19 misinformation or misinformation more broadly. While this

would almost certainly not be an option available to US legislators, I

conclude that Canada's free-expression jurisprudence leaves open the

possibility for Canadian legislators to require platforms to

intervene---to delete content---in times of discrete emergency.

◊heading{COVID-19 Misinformation}

I refer to the expression being blocked under these policies as

◊em{misinformation}. I adopt a definition of misinformation that

assumes only the falsehood of the statement. Misinformation is broader

than, but includes, ◊em{dis}information, which implies an intentional

effort to deceive. This is a commonly accepted distinction, adopted by

Renee DiResta and Facebook.◊note{◊see["DiResta" #:pinpoint "14"

#:terminal ";"] ◊see-also["FSP" #:pinpoint "04m:50s"]} Given how

difficult it is for a platform to know the intent of the speaker, they

are necessarily disregarding intent in their treatment of COVID-19

misinformation. Misinformation is also different from hate

speech. While hate speech can certainly ◊em{include}

misinformation,◊note-cite["Keegstra" #:parenthetical "“[t]here is very

little chance that statements intended to promote hatred against an

identifiable group are true”" #:pinpoint "763"] the reason platforms

target hate speech is not because it is false.◊note{◊see["Citron:

Addressing Cyber Harassment" #:pinpoint "61--62"] And regarding

political propaganda, another category of suspect speech, see

generally ◊cite["Corbin"]}

Platforms are categorizing COVID-19 misinformation based on its

falsehood. This is a ◊em{content}-based categorization and is a novel

aspect to the platforms' response to COVID-19

misinformation. Platforms have generally not deleted expression based

on its falsehood.◊note-see["Klonick" #:pinpoint "1660"] There are two

notable exceptions. Pinterest prohibits "promotion of false cures for

terminal or chronic illnesses and anti-vaccination

advice."◊note-cite["Pinterest"] And (only since February 2020) YouTube

prohibits a small category of political-process

misinformation.◊note-see["YouTube: Elections"] Platforms have instead

relied on proxy criteria (like the identity of the actor or presence

of deceptive behaviours) to delete likely

◊em{dis}information.◊note-see["Francois"] For example, Facebook has

had little issue removing posts attributed to "well-funded military

and intelligence apparatus" (e.g. Guccifer 2.0).◊note-cite["Francois"

#:pinpoint "3"] And Twitter deletes fake accounts and bots in order to

stamp out "faux-organic" content.◊note-cite["Ravel" #:pinpoint

"1271--72"]

What is new about the platforms' deletion of COVID-19 misinformation

is that they are distinguishing between true and false. Under these

new policies, it does not matter who makes the false claim; it does

not matter whether the claim is part of a deception campaign. Facebook

and Twitter have never before deleted information because it was false

(YouTube has, and only since February 2020).◊note-see["YouTube:

Elections"]

But in the context of a novel global pandemic, full of scientific

uncertainty, what does it mean for a claim to be false? Twitter has

said that it will "prioritiz[e] removing content when it has a clear

call to action that could directly pose a risk to people’s health or

well-being" but that it will not "limit good faith discussion or

expressing hope about ongoing studies related to potential medical

interventions that show promise."◊note-cite["Twitter COVID Policy"]

They will remove "[d]enial of established scientific facts about

transmission during the incubation period or transmission guidance

from global and local health authorities."◊note-cite["Twitter COVID

Policy"] Facebook will take down content that is "provably false",

that "has been flagged by a global health expert like the [World

Health Organization (WHO)]," and "could lead to imminent

harm."◊note-cite["FSP" #:pinpoint "08m:40s"] YouTube will delete "any

content that disputes the existence or transmission of Covid-19, as

described by the WHO and local health

authorities."◊note-cite["Kelion"] But “[f]or borderline content that

could misinform users in harmful ways,” they only reduce

recommendations of that content.◊note-cite["Kelion"]

In these policy statements we see the platforms adopting the

fact--opinion distinction familiar from defamation

law.◊note{◊see["Torstar" #:pinpoint "para 31" #:terminal ";"]

◊cite["Gertz" #:terminal ";"] ◊cite["Milkovich"]} These statements

also reveal the harm-based motivation for adopting this more proactive

approach to COVID-19 misinformation. Third, they have all identified

authoritative sources of the truth for the purpose of their policies.

◊heading{Non-COVID-19 Misinformation}

These policies are at odds with the platforms' traditional approach to

misinformation. While platforms have had policies against "gratuitous

violence" and pornography that is in-line with obscenity norms in

American media, they have not attempted to divide truth from fiction

or fair from unfair.◊note-see["Klonick" #:pinpoint "1626, 1660"]

Twitter took such a hands-off approach that it was called "the free

speech wing of the free speech party."◊note{◊see["Klonick" #:pinpoint

"1620--21"] ◊see-also["Jeong" #:parenthetical "presenting Twitter's

early rules: “we will not actively monitor and will not censor user

content, except in the limited circumstances below,” referring to

categories of “Impersonation, Privacy, Violence and Threats,

Copyright, Unlawful Use, Serial Accounts, Name Squatting,

Malware/Phishing, Spam, and Pornography”"]} Kate Klonick hypothesizes

that the "normative background" of the early in-house counsel at these

platforms was so infused with First Amendment doctrine that they

effectively imported it into Twitter, Facebook, and

Youtube.◊note-see["Klonick" #:pinpoint "1621"]

Where platforms ◊em{have} prohibited content (e.g. obscenity,

violence, hate speech), they have been motivated by corporate identity

and monetary interests.◊note-see["Klonick" #:pinpoint "1626--27"]

Misinformation has been policed only by proxy: by targeting bad actors

or bad behaviour.◊note-see["Francois"] But platforms have avoided

assuming a role as arbiters of truth. If a private individual says

something openly using their primary, personally-identified account,

no matter how false or harmful the information might have been, the

platforms have left it up. Only recently have the platforms started to

police misinformation ◊em{qua} misinformation and it has been with a

light touch.

What follows next is a summary of the (often recent) high-water mark

of each platform's treatment of non-COVID-19 misinformation.

◊sub-heading{Facebook}

"[F]alse news does not violate [Facebook's] Community

Standards."◊note-cite["FB: Lyons"] Unless it violates one of their

other content policies, Facebook will not take down

misinformation. Their approach to tackling misinformation (since

2016◊note-see["Constine2"]) has been to use fact-checkers who are

certified by the International Fact-Checking Network. When a

fact-checker judges content to be false, Facebook will downrank the

content so that many fewer people will see it, attach a warning label,

and include a link to corrective information.◊note{◊see["FB: Lyons"

#:terminal ";"] ◊cite["Constine2"] ◊see-generally["Clayton"]}

◊sub-heading{Twitter}

In February, 2020, Twitter announced a policy targeting manipulated

media◊note-see["Twitter Deep Fake Policy"] (e.g. ◊em{deep

fakes}◊note-see-generally["Citron"]). When such manipulated media

risks creating "serious harm," Twitter will delete it; otherwise,

Twitter will simply label it. While this can be construed as targeting

content,◊note-see["Francois" #:parenthetical "policing deep fakes is a

content-based distinction"] this is a special category of

misinformation. The medium has been manipulated or synthetically

generated. Of course there is an ◊em{implicit claim} that the person

depicted in the photo, video, or audio actually did what they have

been depicted doing (e.g. a video depicting a trustworthy person X

advocating dangerous behaviour Y). In this sense, manipulated media

makes a meta claim. Twitter's manipulated-media policy is the closest

that Twitter has come to deleting claims because they are

false. However, Twitter's policies would not result in deletion of a

text-based version of the same claim (e.g. a tweet saying that

"trustworthy person X advocated dangerous behaviour Y"). This reveals

that Twitter's manipulated-media policy requires more than mere

falsehood and harm in order to trigger deletion. Their policy toward

manipulated media is based on the ◊em{manner} in which the claim is

made and thus is more properly categorized as a ◊em{behaviour}-based

distinction.

◊sub-heading{YouTube}

In February, 2020, YouTube announced several categories of content

that it would remove: manipulated media that poses a "serious risk of

egregious harm," misinformation about the "voting or census process,"

and "false claims related to the technical eligibility requirements

for current political candidates."◊note-cite["YouTube: Elections"] The

manipulated-media category is much like that from Twitter's

policy. However, the latter two categories (political-process

misinformation) are rare examples where a platform has decided to

remove misinformation based purely on it being false. This is

low-hanging fruit, given that there is a clear ground truth about what

the voting and census processes involve and what the technical

eligibility requirements are.

◊sub-heading{Alternatives to deletion}

Among major social media platforms, YouTube's recent policy relating

to election or census misinformation is the only other example where

false claims would be removed because of their falsehood. The

platforms all otherwise resort to less intrusive alternatives:

downrank, flag or label, and promote more accurate

content.◊note-see["Persily" #:parenthetical "presents demotion,

disclosure, delay, dilution and diversion, deterrence, and digital

literacy as alternatives to deletion"]

◊heading{The harms of misinformation}

◊q{ Force, and fraud, are in war the two cardinal virtues. --- Thomas

Hobbes }

Misinformation causes both ◊em{societal} and ◊em{individual} harm. At

the societal level, misinformation can result in "distortion of

democratic discourse," "manipulation of elections," "erosion of trust

in significant public and private institutions," "enhancement and

exploitation of social divisions," and "threats to the

economy."◊note{◊cite["Citron" #:pinpoint "1777ff" #:parenthetical

"discussing deep fakes specifically, but these harms stem from

disinformation generally"]} Misinformation sows seeds of doubt,

mistrust, and a "cascade of cynicism" that spreads from particular

sources to media and experts in general.◊note-see["Verstraete"

#:parenthetical "presenting the doubt, mistrust, and “cascade of

cynicism” that spreads from particular sources to media and experts

generally"] Misinformation also creates direct harms to

individuals. At the low end, this might be misinformation as innocuous

as "keeping your cellphone charged at 100% will extend its battery

life." But it also includes much more consequential misinformation

that can cause people to waste time and money on medical treatments

that do nothing or even worsen a prognosis.◊note-cite["Novella: What's

the Harm"]

In this article, I present a hypothesis that the major social media

platforms are operating under a ◊em{Charter}-like approach to free

expression that balances free expression against these harms caused by

misinformation. COVID-19 misinformation apparently meets the

platforms' threshold for intervention. This raises the further

question: what other misinformation might also meet this threshold?

YouTube has already targeted a small category of democratic-process

misinformation.◊note{◊see["Miller" #:parenthetical "discussed above,

in the text accompanying note 36"]} Protecting the integrity of the

political process from the harms of misinformation has also been

recognized in Canada as a justification for infringing the right to

free expression.◊note-see["Harper" #:parenthetical "the Court allowed

a blackout period on election advertising in order to allow response

to “potentially misleading election advertising”"]

I've presented the general harms of misinformation above, but I

present next a small list of misinformation that is particularly and

demonstrably harmful in diverse ways.

Misleading health claims can give patients and families false hope,

they can lead patients to forego effective treatment or to undergo

interventions that carry risk with no benefit.◊note-see["Novella:

What's the Harm"] When the proper treatment has societal benefits

(vaccination, for example), following the misinformation leads to

societal harms.◊note-see["Benecke"]

Conspiracy theories are another category of misinformation. These take

advantage of a psychological need to explain, to control, and to feel

like you're on the "inside."◊note-see["Douglas: Conspiracy"]

Conspiracy theories certainly overlap with the category of misleading

health claims. Some anti-vaccination theories involve a claim that

vaccines are dangerous yet recommended ◊em{because} of "secret and

malevolent forces."◊note-cite["Douglas: Chapter" #:pinpoint "184"]

Another example of overlap is the conspiracy theory that HIV is not

the cause of AIDS.◊note-cite["Douglas: Chapter" #:pinpoint "188"] But

they also influence how people receive information about

socially-important issues like climate change.◊note-cite["Douglas:

Chapter" #:pinpoint "188"] And conspiracy theories are associated with

racist attitudes, although the direction of causation has not been

established.◊note-cite["Douglas: Chapter" #:pinpoint "188--89"]

Another kind of harmful misinformation may simply be fraud. This

includes financial hoaxsters, multi-level marketing

schemes,◊note-see["Cunha"] and even the peddling of "organized

pseudolegal commercial arguments" (freemen-on-the-land or

sovereign-citizen theories).◊note-cite["Meads"] This latter category

has "proven disruptive, inflict[s] unnecessary expenses on other

parties, and [is] ultimately harmful to the persons who appear in

court and attempt to invoke these vexatious

strategies."◊note-cite["Meads" #:pinpoint "para 71"]

Misinformation and its harm is as old as speech

itself,◊note-cite["Persily" #:pinpoint "4"] but online misinformation

has additional characteristics that increase the risk and extent of

that harm, including speed, virality, and

anonymity.◊note-see["Persily" #:pinpoint "5"] Platforms may very well

be able to decrease the impact of misinformation by targeting these

force multipliers rather than the misinformation directly.

◊heading{An emerging balance}

As non-government entities, social media platforms are not subject to

the constraints of the First Amendment or s. 2(b) of the

◊em{Charter}.◊note-see-generally["Eldridge"] They in fact ◊em{benefit}

from the right to free expression to secure their own freedom to

govern expression on their platforms as they see

fit.◊note{◊see["Keller" #:parenthetical "“private platforms aren’t

really the public square, and internet companies aren’t governments”"

#:terminal ";"] ◊cite["Newton" #:parenthetical "“most people want

[Facebook] to go much further than the First Amendment”" #:terminal

";"] ◊cite["Klonick" #:pinpoint "1626" #:parenthetical "“you get to

decide what the tone and tenor of your platform look[] like, and

that's a First Amendment right in and of itself”"]} But, it is still

revealing to examine what free-expression values are reflected in the

policies adopted by social media platforms.

The platforms' actions until now have appeared to reflect liberal

First Amendment values and a "reductionist" conception of

harm.◊note-cite["Kang" #:pinpoint "para 15"] Platforms' proactive

treatment of COVID-19 misinformation, in the absence of government

regulation or obvious market pressures, reveals that the First

Amendment isn't the whole story. There is a communitarian or

egalitarian aspect to their self-governance as well. Or if I am wrong

about the motivations, their actions today at least reveal that there

is space for such a communitarian or egalitarian aspect.

◊sub-heading{A First Amendment Perspective}

The US Supreme Court has interpreted the First Amendment to only allow

content-based restrictions within a narrow list of

traditionally-recognized categories: "incitement of imminent lawless

action," obscenity, defamation, child pornography, speech "integral to

criminal conduct," fighting words, fraud, true threats, and "speech

presenting some grave an imminent threat the government has the power

to prevent."◊note{◊cite["Alvarez" #:pinpoint "717" #:terminal ""],

citing ◊cite["Brandenburg" #:parenthetical "imminent lawless action"

#:terminal ";"] ◊cite["Miller" #:parenthetical "obscenity" #:terminal

";"] ◊cite["NYT" #:parenthetical "defamation" #:terminal ";"]

◊cite["Giboney" #:parenthetical "speech integral to criminal conduct"

#:terminal ";"] ◊cite["Chaplinsky" #:parenthetical "fighting words"

#:terminal ";"] ◊cite["Ferber" #:parenthetical "child pornography"

#:terminal ";"] ◊cite["VA Pharmacy" #:parenthetical "fraud" #:terminal

";"] ◊cite["Watts" #:parenthetical "true threats" #:terminal ";"] and

◊cite["Near" #:parenthetical "grave and imminent threat..."]} The

Court has explicitly noted that "absent from those few

categories... is any general exception to the First Amendment for

false statements"; "erroneous statement is inevitable in free

debate."◊note-cite["Alvarez" #:pinpoint "718"] The Court ◊em{has},

however, placed less value false statements, but always in the context

of some other "legally cognizable harm."◊note-cite["Alvarez"

#:pinpoint "718--719"] Where the Court has allowed a content-based

distinction that would treat false statements differently than true

statements, it has been in one of two contexts: commercial

speech◊note{The US Supreme Court initially held that advertising was

not protected by the First Amendment. ◊see["Valentine"]} or falsehood

plus harm. And for non-commercial false speech, a remedy is only

available to a person harmed after such harm has occurred: there are

no prior restraints on non-commercial false statements.

The United States Supreme Court has also "rejected as startling and

dangerous a free-floating test for First Amendment coverage based on

an ad hoc balancing of relative social costs and

benefits."◊note{◊cite["Alvarez" #:pinpoint "717" #:terminal " (cleaned

up)"], citing ◊cite["Stevens"]} Note that there is no analogue of

Section 1 of the ◊em{Charter} in the US Constitution. Thus, the entire

issue is generally framed in terms of First Amendment "coverage":

e.g. does the First Amendment cover obscenity? The Supreme Court of

Canada instead has given s. 2(b) of the ◊em{Charter} the broadest

possible conception, protecting any attempt to convey

meaning.◊note-see["Irwin Toy"] (This does, however, excludes violence

and threats of violence.◊note-see["Khawaja" #:pinpoint "para 17"])

Whether something like obscenity can be prohibited by the government

is framed in Canada as a question of whether the infringement of the

right to free expression can be justified under s. 1 of the

◊em{Charter}. This exercise is infused with a balancing of "social

costs"◊note-cite["Whatcott"] and benefits.◊note{◊see["Oakes"

#:terminal ";"] ◊cite["Dagenais" #:terminal ";"] ◊cite["RJR"

#:pinpoint "para 62" #:parenthetical "“[t]he s. 1 inquiry is an

unavoidably normative inquiry”"]}

Platforms have hewed closely to First Amendment ideals, although

straying slightly with respect to several categories of

content.◊note-see-eg["Facebook's Community Standards" #:parenthetical

"listing (among other things) violence and incitement, promotion of

crime, fraud, child nudity and sexual exploitation, harassment and

intimidation, obscenity as content that will be deleted"] These

departures are best explained as a response to foreign regulation and

market pressures rather than a reasoned balancing of harm and

expression: "It's no coincidence that YouTube, Facebook, Twitter, and

Microsoft, which earn substantial portions of their revenues in

Europe, apply European hate-speech standards globally—even in

countries where that speech is legal."◊note-cite["Keller"]

Until now though, platforms have resisted pressure to police

misinformation. Mark Zuckerberg has said:

◊q{ [M]isinformation, I think is really tricky... everyone would

basically agree that you don’t want the content that’s getting the

most distribution to be flagrant hoaxes that are tricking people. But

the other side... is that a lot of people express their life and their

experiences by telling stories, and sometimes the stories are true and

sometimes they’re not. And people use satire and they use fiction

... and the question is, how do you differentiate and draw the line

between satire or a fictional story? Where is the

line?◊note{◊cite["Newton"] This quote also reflects a vision of free

expression that is focused on individual liberty and "self-expressive

rights of the singular speaker." ◊cite["Syed" #:pinpoint "341"]}}

But wherever that line might be, COVID-19 misinformation is across

that line for these platforms. This reveals that platforms are

operating under a vision closer to that from Canada's ◊em{Charter}

than that from the First Amendment.

◊sub-heading{A ◊em{Charter} Perspective}

Some previous restrictions of misinformation by the platforms may

appear at first as an adoption of a ◊em{Charter} perspective, but

these previous restrictions have been consistent with the narrow

exceptions that the US Supreme Court has carved out from First

Amendment protection. For example, platforms have generally not

allowed misleading or deceptive advertisement.◊note-see-eg["Google

Misrepresentation"] This reflects a conception of free expression that

places less value on commercial or profit-motivated

speech.◊note{◊see-eg["Valentine" #:terminal ";"] ◊cite["VA Pharmacy"]

Profit-motivated speech also holds less value under a s. 1

justification in Canada. ◊see["Irwin Toy" #:parenthetical "“harm

engendered by tobacco and the profit motive underlying its promotion

place this form of expression as far from the 'core' of freedom of

expression values”"]}

But, the new policies of Twitter, Facebook, Google, and YouTube with

respect to COVID-19 misinformation amount to a prior restraint (within

each platform) on non-commercial misinformation, before any legally

cognizable harm has occurred. This is wholly inconsistent with a First

Amendment-inspired lens on the role of free expression. While prior

constraints are viewed with particular skepticism by Canadian

courts,◊note-see["Little Sisters"] they are not out of the question,

and courts will consider the balance of the "social costs and

benefits"◊note-cite["Stevens"] that US law avoids.

As presented above, COVID-19 is just the latest subject of

misinformation, yet platforms have adopted unusually proactive and

strict measures to delete it. When we look at the ◊em{social costs}

side of the ledger in Canadian jurisprudence, we find a plethora of

factors can explain the platforms' differential treatment of COVID-19

misinformation, particularly in the s. 1 analysis. To justify an

infringement of a ◊em{Charter} right, s. 1 requires the government to

identify a pressing and substantial objective and to demonstrate that

the means chosen to achieve that objective are proportional (further

requiring that the government demonstrate that the means are

rationally connected to the objective, that the means are minimally

impairing, and that the deleterious effects do not outweigh the

salutary effects of the measure).◊note{◊see["Oakes"]

◊see-also["Dagenais"]}

At the highest level, a s. 1 analysis of infringements of the right to

free expression adopts a "communitarian understanding of the

harms."◊note-see["Kang"] It matters that the harms may be suffered by

vulnerable groups.◊note-see["Irwin Toy" #:parenthetical "the *Consumer

Protection Act* regulated advertising that was directed at young

children"] Even the dissent in ◊em{Irwin Toy} (which would have struck

down a prohibition on advertising directed at children) said that

restrictions could be justified for the "protection of the

community."◊note-cite["Irwin Toy" #:pinpoint "1009"] A "social

nuisance" has been sufficient to justify a s. 2(b)

infringement.◊note-see["Prostitution reference" #:parenthetical "“the

public display of the sale of sex”"] The Court has approved of a

restriction on advertising that was "likely to create an erroneous

impression about the characteristics, health effects, or health hazard

[of tobacco]."◊note-cite["JTI" #:parenthetical "albeit, this was in

the context of commercial, profit-motivated speech"] "Avoidance of

harm to society" was an objective that justified criminal obscenity

law.◊note-cite["Butler"] "[C]ourts must determine as best they can

what the community would tolerate others being exposed to on the basis

of the degree of harm that may flow from such

exposure."◊note-cite["Butler"] To the extent that there is uncertainty

about the harmful effects of misinformation,◊note-see["Guess"] s. 1

jurisprudence has not demanded evidential certainty in order to

justify an infringement. The Court in ◊em{R. v. Butler} explicitly

relied on "inconclusive social science evidence."◊note-cite["Butler"]

The approach that platforms have taken to COVID-19 misinformation can

be explained through this s. 1 lens. Our collective response to

COVID-19 is rooted in a communitarian understanding of its harms. We

are not self-isolating because we may personally get sick; we are

self-isolating in order to deny the virus a vector for

transmission. This is why platforms are combatting misinformation that

would lead to people violating isolation guidelines. Facebook has even

gone so far to take down pages that organize protests that "defy

government's guidance on social distancing."◊note-cite["Wong"] It also

appears that these harms may be suffered more by vulnerable

groups.◊note-see["Kendi"] While there is disagreement and uncertainty

about fine details and forecasts, public health authorities are

largely in agreement about the big picture on COVID-19: it exists, it

is caused by a virus, it spreads through close human--human

interaction, and risk of spread is reduced maintaining physical

distance, avoiding touching one's face, washing one's hands, and

wearing a mask.◊note{◊see-eg["CDC-Masks" #:terminal ";"]

◊cite["WHO-Masks" #:terminal ";"] ◊cite["BC-Masks"]} This gives

platforms a set of authoritative sources, deviation from which the

community is not willing to tolerate. And our COVID-19 response has

been likened to a war, which can elicit a statist deference to

authority.◊note{This imagery has been criticized, specifically because