Censorship at the CDC. Your questions answered.
From details to legal issues, here's what we know after this weekend's bombshell revelations.
On Friday, we learned that thousands of CDC webpages had been taken offline, ranging from vaccine recommendations to treatment guidelines for sexually transmitted infections to pure epidemiological data. Some pages are back online (including parts of Data.CDC.gov), provided they have been “modified to comply with President Trump’s Executive Orders.” However, many others remain too offensive for your precious eyes.
On Saturday, Inside Medicine published part of an email in which CDC scientists had been instructed to retract and/or pause all scientific papers submitted to any medical or scientific journal to cleanse them of a list of words deemed offensive by the Trump administration. Terms like gender. (Not joking.)
Many of you had questions about this news. I’ve got answers. Your questions ranged from specific details about the CDC censorship regime to legal issues around the policies. I spent much of the weekend exploring this and much more. I hope it helps. Let’s get to it…
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What about the First Amendment?
Many people here and on social media wondered whether the CDC can really suppress the free speech of its employees. The short answer is yes, it sure can, in many instances. To gain expert insight on this, I asked Georgetown Law Professor Larry Gostin to educate us all. Here’s what he told Inside Medicine (bold added by me for emphasis) in an email yesterday:
“The First Amendment to the Constitution is the most ambitious free speech provision in the world. It states, "Congress shall pass no law ... abridging the freedom of speech."
But the courts have interpreted the First Amendment to significantly restrict government actions that curtail the speech of private actors, including corporations and lobbyists. [And] the courts have given administrations wide berths to speech itself, and even to not speak. That means that civil servants have little free speech protection when acting in their public capacities.
Thus, as abhorrent as it is, and as harmful to the public's health, censoring CDC or other agency health communications would be unlikely to be shot down by the Supreme Court. The conservative justices have considerably expanded presidential powers in all kinds of ways. They would be unlikely to strike down an order directing federal employees from saying, or not saying, most anything.
But I do see the president's sweeping order as Orwellian and perhaps subject to some First Amendment restrictions. The order is so wide that it includes private authors who co-author with a government employee, and this happens frequently. I have co-authored articles in MMWR [Morbidity and Mortality Weekly Report, the CDC’s scientific journal, which stopped publishing two weeks ago, for the first time in decades] with CDC employees. If the administration withdraws those articles or forces the lead government author to withdraw, that could affect the free speech rights of private authors. The president is right on the line of an unconstitutional abridgment of speech. From my perspective the sweeping nature of that order crosses the line. But my informed guess is that the Supreme Court will go along with him the way the Court has done in so many issues before.
Like Larry, I too have co-authored an article in the MMWR with CDC scientists I collaborated with (and it was one of the honors of my career thus far). In that case, the publication we submitted our work to was the CDC’s own journal, so I let the CDC researchers lead the way on the submission logistics. But the notion that research co-authored by a non-government scientist like me with CDC scientists could be delayed or retracted from external journal is horrifying. Right now, there are authors in academia who collaborated with CDC researchers on major research whose work is now in limbo, if not outright jeopardy. Oftentimes, scientists are racing against each other to get new data out. My heart goes out to any scientist who gets scooped because of this. Not only is this bad for science, but it’s potentially career damaging for the non-CDC researchers; a major publication by an academic researcher who collaborated with respected CDC scientists could be the difference between getting tenure or not.
From speaking with Larry and other experts, I understand that the free speech argument boils down to three distinct issues:
Can the Trump administration tell the CDC it can't publish certain things? Yes. A counterexample helps explain why this is, in principle, not a bad thing. (It’s just bad in this instance because of how overly broad and discriminatory it is.) Imagine if some CDC official lost their mind, went rogue, and wanted to publish some anti-vaxxer screed in a medical journal. We’d all be glad that this would not be permitted under the official auspices of the CDC. So, while we may not agree with what the Trump administration has decided regarding what its agencies can say, it does seem to be their purview.
Is there a point in which government censorship of its own becomes simply too broad to be reasonable? That is, has the administration already gone too far? Yes, says Larry Gostin. The question is where the courts will draw that line.
Does permissible censorship of CDC officials that simultaneously inhibits the free speech of a non-governmental collaborator of the CDC run afoul of free speech protections? Again, Larry thinks that could be a violation of the First Amendment, but the facts of each instance might matter. In Murthy v. Missouri, some Covid contrarians (academics, not government employees) argued that the US government violated the First Amendment because, they alleged, that the Biden administration pressured social media companies to censor them. The Supreme Court tossed the case, saying the plaintiffs lacked standing—the jurisprudence equivalent of “Sir, this is an Arby’s.” Merits aside, to me it is fascinating that one of the plaintiffs in that case, Dr. Jay Bhattacharya, has now been nominated by President Trump to run the NIH. (You really can’t make this stuff up!) A consistent argument on Jay’s part would surely be that the government can’t stifle the speech of non-government scientists, right? I’d genuinely like to know.
Is this really new? Don’t all CDC and NIH papers have to be approved by leadership?
The apologist viewpoint goes like this. “This ain’t new. Since forever, scientists at the CDC or the NIH have always had to get clearance before publishing research in any medical journal, whether internally (like MMWR) or externally (like NEJM).”
That’s an erroneous interpretation. In the past, every potential publication written by a CDC or NIH scientist had to go through a “clearance pathway,” yes. But never before has clearance been strictly limited to a presidential appointee, of which there is currently exactly one at the CDC, installed by President Trump last week. And never before have decisions been held up entirely because of some presidential fiat regarding words which shall not be uttered (i.e., “woke ideology”). For example, in the past, if someone at the CDC wanted to submit a paper to a medical journal, they needed clearance; but depending on the circumstances, the clearance determination was made by career officials, who serve regardless of which party happens to control the White House. This is a major difference, and anyone arguing otherwise is either misinformed, in denial, incompetent, or deliberately trying to mislead you.
Do all prior CDC publications in major journals need to be retracted?
No, thankfully. The policy does not apply to articles previously published in scientific journals. That would simply be impossible from a logistical standpoint. Imagine telling CDC scientists that articles published in The New England Journal of Medicine (NEJM) 20 years ago need to be retracted. The edict applies to works that are somewhere in the publication process. That means articles that were:
Submitted to a journal (like NEJM) but have not yet been decided upon by the editors.
Submitted and either under initial consideration, in the “revise and resubmit” (R&R) phase, or already accepted but not yet live. (A note regarding the R&R phase: This is when a journal is seriously considering publishing research; journals virtually never accept submissions without at least one round of revisions, and a subset of articles are actually rejected during this often arduous process.) Materially (I learned from CDC sources this weekend), this means different things depending on the status of any given manuscript.
For CDC authors who submitted a research article to a journal but have not yet received a decision from the journal (i.e., under initial consideration), nothing actively must be done. That’s because if the research is rejected, there’s nothing to “worry” about—other than to cleansing it of “offensive language” before submitting it to another journal for consideration.
For CDC authors who submitted an article and have been asked for a revision (R&R), the article must be cleansed and approved before resubmitting. R&Rs that have already been resubmitted must be retracted as there’s a good chance those manuscripts will soon be accepted. In that case a new publication from CDC scientists might run afoul of the new policy.
Articles that have already been accepted (but not yet published/live) must also be paused and/or retracted. This is to ensure that any new publications by CDC scientists have been cleansed of offensive language and approved by a Trump political appointee at the CDC (again, there is currently only one in the entire agency). This could apply to a number of papers at a variety of journals. There is usually a lengthy delay between when articles are officially accepted and when they go live, owing to the time it takes for formatting, engraving, small queries/fact checks, and copyediting. And at top journals, there are backlogs of articles in the queue waiting to go live.
A related question I’ve heard is whether what is happening at CDC could also happen over at the NIH. The answer, I imagine, is yes. But I haven’t heard specifics.
What are CDC partners being told?
The CDC gives grants to external partners and supports state agencies on various projects. A CDC official I spoke to this weekend said that in recent days, numerous recipients of CDC funding asked the agency whether their collaborative work would continue (especially projects that serve populations that the Trump administration looks down upon). CDC officials were instructed either to simply not reply to these queries or to paste a two-sentence block of text which “does not say very much,” the source told me. So, chaos and uncertainly is trickling outward.
Okay, so why don’t the CDC scientists refuse to comply?
Even if a lawsuit were to rule in favor of a CDC employees who decided to sue the government on a free speech claim, that process would take months or years. CDC employees I’ve been speaking to are genuinely afraid they’ll be fired tomorrow and lose their livelihoods. For many, that could mean missing rent or mortgage payments. In the face of that, many scientists are picking their battles carefully.
This obliquely answers another common question I saw this weekend: “Who is ordering this and how is it being enforced?” The answer is that CDC managers are trying to abide by Trump administration edicts in an attempt to keep the agency from being targeted for mass firings. Again, the enforcement mechanism appears to be the threat of unceremonious termination, despite years and even decades of faithful service.
Okay, so why don’t the major medical journals refuse the retractions and edits?
A common question I heard this weekend was whether medical journals like NEJM might simply refuse to comply with requests for retractions from CDC scientists. The problem is that until publication, the authors own the manuscript. The logistics of this make sense, if you think about it. Imagine an article is accepted by a leading journal but, at the last minute, the lead author realizes a massive error was made and that the paper needs to be corrected before proceeding. The researcher would ask the journal to halt the process and the journal would clearly have to abide by the request. So, if an author asks a journal to stop a submission in progress, the journal’s editors are going to respect that for virtually any reason.
There is also the issue of standards and practices. For example, some journals may have a style guide that states that the term “pregnant people” should be used, rather than “pregnant women.” (I’ll admit that I tend to find strict policies around this be a little over-the-top, but I also think that inclusive language literally harms nobody so, honestly, who gives a shit?) So, what would happen if career CDC researchers decided it would be better to make the Trump-decreed changes (allowing the science to be published) but those changes go against an external journal’s style guide? Who knows? I suspect either the journal won’t bend—in which case the CDC scientist would have to retract the article or risk being fired—or that the journal would change its style guide in the face of this new creepy reality.
That’s what we know for now. Thanks for reading, sharing, speaking out, and supporting Inside Medicine! Please ask your questions in the comments and if you can’t upgrade due to financial considerations, just email me.
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