If Private Platforms Use Government Guidelines to Police Content, is that State Censorship?

YouTube's decision to demonetize podcaster Bret Weinstein raises serious questions, both about the First Amendment and regulatory capture

Just under three years ago, Infowars anchor Alex Jones was tossed off Facebook, Apple, YouTube, and Spotify, marking the unofficial launch of the “content moderation” era. The censorship envelope has since widened dramatically via a series of high-profile incidents: Facebook and Twitter suppressing the Hunter Biden laptop story, Donald Trump’s social media suspension, Apple and Amazon’s kneecapping of Parler, the removal of real raw footage from the January 6th riots, and others.

This week’s decision by YouTube to demonetize podcaster Bret Weinstein belongs on that list, and has a case to be put at or near the top, representing a different and perhaps more unnerving speech conundrum than those other episodes.

Profiled in this space two weeks ago, Weinstein and his wife Heather Heying — both biologists — host the podcast DarkHorse, which by any measure is among the more successful independent media operations in the country. They have two YouTube channels, a main channel featuring whole episodes and livestreams, and a “clips” channel featuring excerpts from those shows.

Between the two channels, they’ve been flagged 11 times in the last month or so. Specifically, YouTube has honed in on two areas of discussion it believes promote “medical misinformation.” The first is the potential efficacy of the repurposed drug ivermectin as a Covid-19 treatment. The second is the third rail of third rails, i.e. the possible shortcomings of the mRNA vaccines produced by companies like Moderna and Pfizer.

Weinstein, who was also criticized for arguing the lab-leak theory before conventional wisdom shifted on that topic, says YouTube’s decision will result in the loss of “half” of his and Heying’s income. However, he says, YouTube told him he can reapply after a month.

YouTube’s notice put it as follows: “Edit your channel and reapply for monetization… Make changes to your channel based on our feedback. Changes can include editing or deleting videos and updating video details.”

“They want me to self-censor,” he says. “Unless I stop broadcasting information that runs afoul of their CDC-approved talking points, I’ll remain demonetized.”

Weinstein’s travails with YouTube sound like something out of a Star Trek episode, in which the Enterprise crew tries and fails to communicate with a malevolent AI attacking the ship. In the last two weeks, he emailed back and forth with the firm, at one point receiving an email from someone who identified himself only as “Christopher,” indicating a desire to set up a discussion between Weinstein and various parties at YouTube.

Over the course of these communications, Weinstein asked if he could nail down the name and contact number of the person with whom he was interacting. “I said, ‘Look, I need to know who you are first, whether you’re real, what your real first and last names are, what your phone number is, and so on,” Weinstein recounts. “But on asking what ‘Christopher’s’ real name and email was, they wouldn’t even go that far.” After this demand of his, instead of giving him an actual contact, YouTube sent him a pair of less personalized demonetization notices.

As has been noted in this space multiple times, this is a common theme in nearly all of these stories, but Weinstein’s tale is at once weirder and more involved, as most people in these dilemmas never get past the form-letter response stage. YouTube has responded throughout to media queries about Weinstein’s case, suggesting they take it seriously.

YouTube’s decision with regard to Weinstein and Heying seems part of an overall butterfly effect, as numerous other figures either connected to the topic or to DarkHorse have been censured by various platforms. Weinstein guest Dr. Robert Malone, a former Salk Institute researcher often credited with helping develop mRNA vaccine technology, has been suspended from LinkedIn, and Weinstein guest Dr. Pierre Kory of the Front Line COVID-19 Critical Care Alliance (FLCCC) has had his appearances removed by YouTube. Even Satoshi Ōmura, who won the Nobel Prize in 2015 for his work on ivermectin, reportedly had a video removed by YouTube this week.

There are several factors that make the DarkHorse incident different from other major Silicon Valley moderation decisions, including the fact that the content in question doesn’t involve electoral politics, foreign intervention, or incitement. The main issue is the possible blurring of lines between public and private censorship.

When I contacted YouTube about Weinstein two weeks ago, I was told, “In general, we rely on guidance from local and global health authorities (FDA, CDC, WHO, NHS, etc) in developing our COVID-19 misinformation policies.”

The question is, how active is that “guidance”? Is YouTube acting in consultation with those bodies in developing those moderation policies? As Weinstein notes, an answer in the affirmative would likely make theirs a true First Amendment problem, with an agency like the CDC not only setting public health policy but also effectively setting guidelines for private discussion about those policies. “If it is in consultation with the government,” he says, “it’s an entirely different issue.”

Asked specifically after Weinstein’s demonetization if the “guidance” included consultation with authorities, YouTube essentially said yes, pointing to previous announcements that they consult other authorities, and adding, “When we develop our policies we consult outside experts and YouTube creators. In the case of our COVID-19 misinformation policies, it would be guidance from local and global health authorities.”

Weinstein and Heying might be the most prominent non-conservative media operation to fall this far afoul of a platform like YouTube. Unlike the case of, say, Alex Jones, the moves against the show’s content have not been roundly cheered. In fact, they’ve inspired blowback from across the media spectrum, with everyone from Bill Maher to Joe Rogan to Tucker Carlson taking notice.

“They threw Bret Weinstein off YouTube, or almost,” Maher said on Real Time last week. “YouTube should not be telling me what I can see about ivermectin. Ivermectin isn’t a registered Republican. It’s a drug!”

From YouTube’s perspective, the argument for “medical misinformation” in the DarkHorse videos probably comes down to a few themes in Weinstein’s shows. Take, for example, an exchange between Weinstein and Malone in a video about the mRNA vaccines produced by companies like Moderna and Pfizer:

Weinstein: The other problem is that what these vaccines do is they encode spike protein… but the spike protein itself we now know is very dangerous, it’s cytotoxic, is that a fair description?

Malone: More than fair, and I alerted the FDA about this risk months and months and months ago.

In another moment, entrepreneur and funder of fluvoxamine studies Steve Kirsch mentioned that his carpet cleaner had a heart attack minutes after taking the Pfizer vaccine, and cited Canadian viral immunologist Byram Bridle in saying that that the COVID-19 vaccine doesn’t stay localized at point of injection, but “goes throughout your entire body, it goes to your brain to your heart.” 

Politifact rated the claim that spike protein is cytotoxic “false,” citing the CDC to describe the spike protein as “harmless.” As to the idea that the protein does damage to other parts of the body, including the heart, they quoted an FDA spokesperson who said there’s no evidence the spike protein “lingers at any toxic level in the body.”

Would many doctors argue that the 226 identified cases of myocarditis so far is tiny in the context of 130 million vaccine doses administered, and overall the danger of myocarditis associated with vaccine is far lower than the dangers of myocarditis in Covid-19 patients?

Absolutely. It’s also true that the CDC itself had a meeting on June 18th to discuss cases of heart inflammation reported among people who’d received the vaccine. The CDC, in other words, is simultaneously telling news outlets like Politifact that spike protein is “harmless,” and also having ad-hoc meetings to discuss the possibility, however remote from their point of view, that it is not harmless. Are only CDC officials allowed to discuss these matters?

The larger problem with YouTube’s action is that it relies upon those government guidelines, which in turn are significantly dependent upon information provided to them by pharmaceutical companies, which have long track records of being less than forthright with the public.

In the last decade, for instance, the U.S. government spent over $1.5 billion to stockpile Tamiflu, a drug produced by the Swiss pharma firm Roche. It later came out — thanks to the efforts of a Japanese pediatrician who left a comment on an online forum — that Roche had withheld crucial testing information from British and American buyers, leading to a massive fraud suit. Similar controversies involving the arthritis drug Vioxx and the diabetes drug Avandia were prompted by investigations by independent doctors and academics.

As with financial services, military contracting, environmental protection, and other fields, the phenomenon of regulatory capture is demonstrably real in the pharmaceutical world. This makes basing any moderation policy on official guidelines problematic. If the proper vaccine policy is X, but the actual policy ends up being X plus unknown commercial consideration Y, a policy like YouTube’s more or less automatically preempts discussion of Y.

Some of Weinstein’s broadcasts involve exactly such questions about whether or not it’s necessary to give Covid-19 vaccines to children, to pregnant women, and to people who’ve already had Covid-19, and whether or not the official stance on those matters is colored by profit considerations. Other issues, like whether or not boosters are going to be necessary, need a hard look in light of the commercial incentives.

These are legitimate discussions, as the WHOs own behavior shows. On April 8th, the WHO website said flatly: “Children should not be vaccinated for the moment.” A month and a half later, the WHO issued a new guidance, saying the Pfizer vaccine was “suitable for use by people aged 12 years and above.”

The WHO was clear that its early recommendation was based on a lack of data, and on uncertainty about whether or not children with a low likelihood of infection should be a “priority,” and not on any definite conviction that the vaccine was unsafe. And, again, a Politifact check on the notion that the WHO “reversed its stance” on children rated the claim false, saying that the WHO merely “updated” its guidance on children. Still, the whole drama over the WHO recommendation suggested it should at least be an allowable topic of discussion.

Certainly there are critics of Weinstein’s who blanch at the use of sci-fi terms like “red pill” (derived from worldview-altering truth pill in The Matrix), employing language like “very dangerous” to describe the mRNA vaccines, and descriptions of ivermectin as a drug that would “almost certainly make you better.”

Even to those critics, however, the larger issue Weinstein’s case highlights should be clear. If platforms like YouTube are basing speech regulation policies on government guidelines, and government agencies demonstrably can be captured by industry, the potential exists for a new brand of capture — intellectual capture, where corporate money can theoretically buy not just regulatory relief but the broader preemption of public criticism. It’s vaccines today, and that issue is important enough, but what if in the future the questions involve the performance of an expensive weapons program, or a finance company contracted to administer bailout funds, or health risks posed by a private polluter?

Weinstein believes capture plays a role in his case at some level. “It’s the only thing that makes sense,” he says. He hopes the pressure from the public and from the media will push platforms like YouTube to reveal exactly how, and with whom, they settle upon their speech guidelines. “There’s something industrial strength about the censorship,” he says, adding. “There needs to be a public campaign to reject it.”