Tom Moran’s Shocking Defense of Government Censorship-by-Proxy

In response to a lawsuit, a federal judge severely restricted the federal government from contacting social media companies about content published on their platforms. Tom Moran, lead editorial page editor for the New Jersey Star-Ledger, ridiculed the order in an op-ed published in the Star-Ledger. He wrote:

A judge in Louisiana this week banned the federal government from contacting Facebook and Twitter to complain about some of the worst nonsense people post on their sites, saying that those contacts amounted to censorship, even if there was no order to take down the posts.

I kept reading, looking for the Big Hammer that Biden [sic] administration used to stifle free speech. Because censorship would not only ruin the country; it would put me out of a job.

But there was no hammer. The Biden administration did not order any social media company to take down a post. It did not threaten punishment. It just talked to them about what it considered misinformation, often arguing that the crazy posts on things like Covid and voter fraud violated these companies’ own screening policies.

How on Earth is that censorship? 

Of course there is a hammer. The federal government has massive taxing and regulatory powers over American business. Given this power, the very fact of contact carries an implied threat. Imagine getting a call from an official of the Justice Department, the FBI, or Department of Homeland security “asking” to have certain content taken down. The “ask” carries the power of an order, especially given all of the political noise about the alleged “monopoly power” of social media. It should be obvious what’s going on; censorship-by-proxy. A “request” to take down content the government disapproves of may not meet the technical definition of an order. But it carries the force of an order nonetheless. As J.D. Tuccille observes for Reason, government officials can make life miserable for these companies:

"In America, government censorship is limited by the First Amendment," Will Duffield noted in a Cato Institute report about what he terms "jawboning." "Nevertheless, seizing upon the relationship between platforms and speakers, government officials increasingly demand that platforms refrain from publishing disfavored speech. They threaten platforms with punitive legislation, antitrust investigations, and prosecution. Government officials can use informal pressure—bullying, threatening, and cajoling—to sway the decisions of private platforms and limit the publication of disfavored speech."

Sometimes, the threat is blatant. Former NJ Representative Tom Malinowski, in demanding that “disinformation” and other content he objects to on social media be taken down, warned that “if they don’t do it voluntarily, we’re going to have to regulate them to death.”  This, from a then sitting U.S. Congressman!

And Tom Moran asks, “So where is the censorship?” It’s in every bit of  content taken down at the “request” of a government official. That’s where it is. The judge could see it. Why can’t Moran?

Moran says that the government “just talked to them about what it considered misinformation.” But keep in mind that the government already has power to deal with bad content. It’s called a subpoena, which it can get by showing cause to a judge that a law may be broken. But in this case, the government is pressuring private companies even though no law-breaking is evident.

It’s shocking that an editor of a major American newspaper would support such government action, given that the Star-Ledger’s very survival depends on freedom of speech. Freedom of the press, after all, is downstream of freedom of speech. Free speech is under attack today.  Jacob Mchangama, author of his monumental history of Free Speech, refers to today’s atmosphere as a “free speech recession.” Free speech is on the defensive, as it has been through most of history. The last thing we need is for a leading representative of the press to deepen that recession. 

The press should be uncompromising in its hostility toward censorship in any of its manifestations. Fortunately, other major press voices better recognize the dangers of government suppression of free speech. The Washington Post, while not unequivocally endorsing the judge’s order, nevertheless at least recognizes the danger of implied threats:

Clearer rules about how officials can and can’t try to influence platform policy toward constitutionally protected speech, regardless of message or content, are needed. At the core of the struggle is distinguishing between persuasion and coercion or intimidation. This is easy enough when an official issues an explicit threat that it will use the privileges of the state to punish a platform for disobeying a request to remove legal speech, but it’s harder when the threat is implicit — and harder still when, as with election interference and terrorist material alike, legal and illegal speech can blur together.

My post headline included the word "shocking" because you'd think the press should be most diligent in calling out even the slightest breach of the First Amendment shield protecting freedom of speech, which underpins freedom of the press. Yet here is Moran defending the Biden Administration's attempted end run around that shield. While Moran readily acknowledges that “censorship would not only ruin the country; it would put me out of a job,” he flippantly dismisses the implied threats that make the “requests” a form of censorship. Does he think these companies would find it easy to brush off the coercive legal powers of these government institutions? Shame on Tom Moran for apparently putting his partisan political leanings before his and the Star-Ledger’s rational self-interest. 

Related Reading:

When Private Media ‘Colludes’ With Government, Blame the Government, Not Media: The Dollar is No Match for a Bullet.

Facebook Backtracks on Free Speech Policy; Political Extortion?

Social Media and the Future of Civil Society by Jon Hersey for The Objective Standard

The Banning of Alex Jones: Facebook Choice or Regulatory Extortion?

Censorship-By-Proxy is Real, and it's Here

Malinowski's Censorship-By-Proxy 'Protecting Americans from Dangerous Algorithms Act' Advances

Dem Rep Malinowski Reprises Trump in Proposed Legislative Attack on Social Media and Free Speech.

Judge Blocks Jawboning? By Will Duffield for CATO

The tensions between the injunction’s overlapping prohibitions and exceptions show how difficult it is to draw clear lines between constitutionally acceptable notification and even persuasion, and impermissible pressure and bullying. Any practical prohibition will be too narrow and open to abuse, but any prohibition broad enough to resist gaming will prove unworkable when it covers normal government communications.

How to Resolve the Government School-created Conflict Between the “Establishment” and “Free Exercise” of Religion.

Kate Cohen, writing in The Washington post, argues that Taxpayers shouldn’t be paying for religious schools. On the face of it, she’s absolutely right. 

But, not so fast. Cohen writes:

The Oklahoma Statewide Virtual Charter School Board’s recent decision to allow a Catholic archdiocese to operate a public school is both illegal and unconstitutional.

I’m not exaggerating — I’m just reading.

A charter school “shall be nonsectarian in its programs, admission policies, employment practices, and all other operations,” Oklahoma law states.

Public schools “shall be open to all the children of the state and free from sectarian control,” the Oklahoma constitution declares.

On Charter schools, this is arguable  But Cohen expands upon her point by citing several other cases that involve parental choice and privately run, but publicly funded schools:

In education, that effort began at least 40 years ago, with Mueller v. Allen, which ruled that the deduction Minnesota gave taxpayers for private-school expenses had to apply to parochial-school expenses as well. In 2002, Zelman v. Simmons-Harris (Cleveland’s voucher program); in 2020, Espinoza v. Montana Department of Revenue (Montana’s tax credit program); and in 2022, Carson v. Makin (Maine’s tuition reimbursement program) found that states cannot exclude religious schools from programs that subsidize private education. [I covered this last case here.]

The hollowness of the Left’s Equity crusade is vividly on display here. If funding for parental school choice is generally available to the public at large, then how do you justify denying that benefit to a parent who chooses a religious school? Federal law bans government “discrimination on the basis of race, color, religion, sex or national origin.”

Granted, in any of these programs, taxpayer money is finding its way to religion. The First Amendment prohibits the government from enacting any “law respecting an establishment of religion.” I’m uncompromisingly supportive of that principle. But public funding of education creates a conflict with the second part of the First Amendment, which bans the government from “prohibiting the free exercise [of religion] thereof.” I’m uncompromisingly supportive of that principle, as well. In a fully free society, with a fully consistent First Amendment—one that encompasses a complete separation of education and state in the same way and for the same reasons as the separation of religion and state—there would be no such conflict.   

Unfortunately, we don’t live under a fully consistent First Amendment. So, how does one resolve this unnecessary conflict between Establishment and Free Exercise?

The only fair way to resolve it is to consider who is running the school, and who is choosing the school. Clearly, government-run schools should exclude religious teaching in any form. Also clearly, the state should not directly fund, of its own initiative, any religious school. But if the religious school is privately run, and if the school is privately chosen by parents spending tax money funded through a school choice program generally available as a public benefit, then it must not be considered in violation of the First Amendment. This would seem to include charter schools, as well.

Related Reading:

QUORA: 'What is one constitutional amendment that should be added to the U.S. Constitution that does not exist today? Why does it need to be added?'

Linda Stamato’s Confused Understanding of Church/State Separation

Jennifer Rubin’s anti-American, Totalitarian Conception of Self-Government

Self-government is worth defending from an illegitimate Supreme Court

Washington Post columnist Jennefer Rubin is apparently confused about which revolution created this country—the French Revolution or the American Revolution. Well, it was the American Revolution that we are descendents of. Her (accidental?) confusion is plain in her Washington Post column Self-government is worth defending from an illegitimate Supreme Court.

Ruben begins with the false, reactionary premise that America is a Democracy (upper case “D”), rather than the constitutionally limited republic it actually was founded as. This gives her the opening to condemn the Supreme Court as “illegitimate” every time it defends individual rights, the Constitution, or even our republic’s democratic process. She mentions four recent major decisions—Dobbs, which overturned Roe v. Wade; the Affirmative Action case, which outlawed racism in college admissions; the student loan “forgiveness” case, which overturned Biden’s $450 billion taxpayer money grab on separation of powers grounds; and the web designer case, which sided with a Christian woman who refused to design a website for a same sex couple. 

Because these cases ran afoul of her Leftist beliefs, Rubin accuses the Court’s “right-wing majority” of waging an “intolerable war on self-government.” We must end this war by radically restructuring the high court. Her “solution?” “Simply put, if we want democracy to survive, each election must be a referendum on the court’s legitimacy.” In other words, Rubin wants to politicize the Supreme Court, shredding its independence from the whims of elections.

So, what is self-government in the America concept? She explains:

On this Independence Day, we should reaffirm the twin pillars of democracy: Voters (not the mob) pick their leaders, and elected leaders (not unelected judges) make policy decisions for which they are held accountable. Just as we need to preserve the sanctity of elections (by prosecuting coup instigators), democracy defenders need to address judicial radicals’ gross distortion of our system, resulting in the current Supreme Court’s subversion of democracy.

No mention of America’s primary pillar, unalienable individual rights. Is there any check on the power of elected leaders to make policy? Apparently not:

Something must change if we want to preserve rule by the people’s elected leaders responsible to voters.

“Rule by the people’s elected leaders?” That is not Locke. That is Rousseau. Not Revolutionary America, but Revolutionary France. France is about rule by “the people”—absolute majoritarianism. America is about individual self-rule, under which elected leaders are servants restrained by a constitution. Freedom is not the right to vote. Freedom is the right to act regardless of the outcome of any election, or the dictates of elected leaders.*

Self-government, in the American sense, is not primarily about majoritarianism, in which legislatures or presidents are empowered to do whatever they want simply because they were elected. Rather, self-government begins with the individual, and secondarily extends to a government of limited powers chosen by a democratic process subordinate to the principle of individual rights. The elected government’s job is to secure the rights of individuals to self-govern their own lives based upon their own values, goals, and choices, limited only by the duty to respect the same rights of all others.

Rubin’s conception of America is totalitarian, in which the constitution is toothless as a check on government power, and in which the rights of individuals to self-government is neutered—e.g. To Rubin, the Supreme Court is basically a rubber stamp, always deferring to “policy.” A web designer can be forced to serve a gay couple against her conscientious beliefs, which is a form of slavery. Why? Because the people’s elected leaders mandate that she must. According to Rubin’s concept of self-government, LGBTQ+ rights include the “right” to enslave, smuggled in under the rubric of anti-discrimination law. But by American standards, self-government means self-ownership, which forbids anyone from imposing involuntary servitude on anyone.**

The current Supreme Court is inconsistent. But most of its decisions so far have advanced individual rights, constitutional limits on government power, and respected the separation of powers. These principles stand in the way of the Left’s totalitarian designs on America. To the Left, that makes the current court illegitimate. That is why Rubin and her Leftist ilk are so up in arms.

Rubin labels the current Supreme Court “illegitimate” because it (mostly) sides with individual rights and the U.S. Constitution. But in fact, the Supreme Court is doing its job. It is judging political policy according to the constitution. Given how far toward statism that America has drifted in the last century or so, that will lead to some very dramatic rulings. But that’s what America needs. 

* [Dobbs actually was a bad decision, from a pro-liberty standpoint. But the hypocrisy of the Left (and, in fact, the Right too) shines through like a neon light. Roe recognized abortion as a constitutionally sanctioned individual right. Dobbs switched abortion from a constitutionally protected inalienable individual right to a matter to be decided by elected representatives at the state level. As an advocate of “rule by the people’s elected leaders,” Rubin should cheer this ruling. So much for her vaunted Democracy.]

** [The web designer case was actually decided on free speech, First Amendment grounds. That is important. But more fundamentally, this was more a 13th Amendment case, in my view. The 13th Amendment explicitly forbids “involuntary servitude. Clearly, a law forcing the web designer Lorie Smith—the owner of 303 Creative LLC, the plaintiff in the case—to design a website against her will is involuntary servitude. Freedom of contract also figures prominently in this case. Article I, Section 10, Clause 1 forbids any state from enacting any “Law impairing the Obligation of Contracts.” Implied here is the right to freely contract. Freedom of contract implies the right not to contract, just as freedom of speech protects not only your right to speak but the right not to be compelled to speak against one’s conviction. Compelled speech doctrine is what this case turned on. That aside, let me state unequivocally that I find the web designer’s refusal to serve the gay couple abhorrent. But it’s her right. Her refusal does not in any way, shape, or form “roll back LBGTQ+ rights”—as the Left frames it—since no one has the “right” to force Smith, even by law. The government doesn't create rights by fiat. The American Revolution was fought to escape that totalitarian premise, in favor of natural rights theory, which holds that rights precede government, as the Declaration of Independence makes crystal clear.]

Related Reading: 

The Gay Wedding Website Case—The “Right” to Enslave is Rolled Back

Recent Supreme Court rulings alienate the left but are hardly unpopular by Aaron Blake for The Washington Post

QUORA: Why does the Pledge of Allegiance say the USA is Republican not Democratic?

America; Democracy or Republic or Both--Why it Matters

The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty—Timothy Sandefur

In SCOTUS’ Draft Opinion Overturning Roe Abortion Ruling: Double Standards of Left and Right Exposed

Lincoln Understood the Indispensable Connection Between Rights and Self-Government

New Textbook of Americanism edited by Jonathan Hoenig

On This Constitution Day, Remember the Declaration of Independence

The Gay Wedding Website Case—The “Right” to Enslave is Rolled Back

Can the state force a custom website designer to design a website for customers even if the merchant does not want to? In 303 Creative v. Elenis, the Supreme Court said no. 

This is a good rights-affirming ruling. The case was brought by Lorie Smith, the owner of 303 Creative, who, because of her Christian beliefs, didn’t want to design a wedding website for a same-sex couple. The case was decided on First Amendment grounds based on “compelled speech” doctrine. Compelled speech doctrine holds that the First Amendment prohibits anyone from being forced to say anything that she does not want to say. Megan McArdle explains in The Washington Post:

On the legal merits, the decision is correct; it would be hard to square a different ruling with previous high court jurisprudence that has affirmed broad rights of individual expression, including protections against compelled speech. (See, for example, National Institute of Family and Life Advocates v. Becerra, in which the court ruled that California could not force crisis pregnancy centers to provide information about how to obtain abortions.) Government attempts to compel speech need an overwhelming rationale, and the court ruled that Colorado’s law doesn’t provide a sufficient one.

But there are other reasons to applaud the Supreme Court’s ruling. Article I, Section 10, Clause 1 of the U.S. Constitution protects the sanctity of contracts. A contract is a mutually voluntary agreement. That’s what sanctifies contracts. A contract isn’t legitimate unless both sides agree. Lorie Smith has every right not to enter a contract. The rights of the same-sex couple seeking to contract with Smith are not violated any more than the rights of Christians who oppose same-sex marriage are violated by legalization of same-sex marriage. There is no “”right” to force a contract on others. A forced contract is a contradiction in terms. Freedom of contract is in fact a derivative of the right to freedom of association, which is one of the First Amendment’s five key individual rights.

The other reason stems from the 13th Amendment to the Constitution, which prohibits both slavery and involuntary servitude. Clearly, forcing Smith to design a website against her will is involuntary servitude. Please don’t remind me that designing a website is nothing like the brutality faced by slaves on Southern slave plantations. No, it’s not. But the principle still applies. The 13th Amendment makes no distinctions regarding degree. It states simply, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.” This means that involuntary servitude in any degree or on any level, other than the exception noted,* is outlawed. Note that there is no exception regarding anti-discrimination law.

At this point, let me state unequivocally that I find the web designer’s refusal to serve the gay couple abhorrent. But this is about individual rights. It’s not about some alleged “right” to force Smith to do the work. It’s about her right not to. Her refusal does not in any way, shape, or form “roll back LBGTQ+ rights”—as the Left frames it—since no one has the “right” to force Smith, even by law. This is not a gay rights case. This is an equal individual rights case. In this case, on multiple levels, individual rights were upheld against a tyrannical state.

* [The exception is a point of contention because of the possibility of abuse.]

Related Reading:

Contra the NY Times, a SCOTUS Case Does Not ‘Pit Gay Rights Against Religion’

Gay Marriage: The Right to Voluntary Contract, Not to Coercive “Contract”

Does rescinding laws banning private discrimination make a moral statement in support of bigotry?

The False Alternative of Religious Rights vs. Gay Rights—Michael J. Hurd

Kim Davis vs. Liberty Ridge Farm

Court Violates Cake Baker’s Right Not to Serve Gay Weddings—Ari Armstrong for The Objective Standard

‘Bigotry Motivated by Religion is Still Bigotry’—True, but Still an Individual Right

Fine Against Christian Baker Who refused to Serve a Pro-Gay Marriage Cake Exposes Hypocrisy on Both Sides

Others’ Opinions:

CON: I’m not a lawyer. But I see what the same-sex wedding website case will mean.

PRO:  In the court’s ruling on gay wedding websites, free speech won

QUORA: ‘Were the Confederate States fascist?’

 QUORA: ‘Were the Confederate States fascist?’

I posted this answer:

Well, they were socialist, but more akin to communism than fascism (if by fascism you mean the system defined by Benito Mussolini and the philosopher Giovanni Gentile in 1932). 

As the Abolitionist movement gained strength in the decades leading up to the Civil War, Southern intellectuals mounted a spirited moral and economic defense of slavery. They defended plantation slavery on grounds that anticipated Karl Marx. Leading Antebellum intellectual George Fitzhugh, for example, published a widely read book titled Sociology For The South: Or The Failure Of A Free Society (1854). In this book, Fitzhugh defended plantation slavery as “the beau ideal of communism,” while condemning the free labor of the North as victims of greedy capitalists. The slaves, he argued, were well taken care of from cradle to grave, and always had employment when they could work. When they couldn’t work, Fitzhugh explained, they were well supported by their masters. “The children and the aged and infirm, work not at all, and yet have all the comforts and necessaries of life provided for them. They enjoy liberty, because they are opposed neither by care nor labor.” 

The free labor of the North, Fitzhugh held, were not really free because they were at the mercy of exploitative capitalists, to whom they had to sell their labor for money, and could be fired at will, leaving they and their families on their own with no support. James Henry Hammond, South Carolina governor, argued that black slaves were better off than Northern free laborers, whom he argued were essentially wage slaves. This is essentially the argument that Marx would advance in support of his brand of Communism. 

As historian C. Bradley Thompson has observed, Southern intellectuals, drawing on German philosophy, were the first in America to reject the Declaration of Independence and free market capitalism. They were essentially Marxists before Marx.* 

Of course, most whites and some blacks were relatively free, so the Confederate states defy broad labels like socialist, Communist, or Fascist. If one were to label the South, Slavocracy would best “fit the bill.” 

* [Thompson is the author of America's Revolutionary Mind: A Moral History of the American Revolution and the Declaration That Defined It]

 

Related Reading:

Brad Thompson on “the unidentified, unacknowledged union of proslavery and progressive thought.”

Sociology for the South: Or the Failure of Free Society by George Fitzhugh

QUORA: ‘Why do fascism and communism often go hand in hand when they are philosophically polar opposites?’

Who Represented the ‘American Institution’ -- Martin Luther King or His Enemies?

In a New York Times piece, The Man Who Knew Exactly What the F.B.I. Was Doing to Martin Luther King Jr., Jonathan Eig and Jeanne Theoharis dig into a little history. I don’t take issue with the facts. I do take issue with the interpretation. Here is a key excerpt:

But historians, journalists and contemporary political leaders have largely portrayed Hoover as a kind of uncontrollable vigilante, an all too powerful and obsessive lawman, and Johnson as a genuine civil rights partner until [Martin Luther] King [Jr.]  broke with the president over the Vietnam War. In reality, as new documents reveal, Johnson was more of an antagonist to King, and a conspirator with Hoover, than he has been portrayed.

By personalizing the F.B.I.’s assault on King, Americans cling to a view of history that isolates a few bad actors who opposed the civil rights movement — including Hoover, Gov. George Wallace of Alabama and Birmingham lawman Bull Connor. They thus fail to acknowledge the institutionalized, well organized resistance to change in our society. Americans prefer a version of history where most decent people did the right thing in the end.

It’s time to move past that comfortable story and recognize the power structure that supported the F.B.I.’s campaign. Many Americans — starting with the president — thought movement activists like King posed threats to the established order and needed to be watched and controlled. Members of the press could have exposed the bureau’s campaign. And many government officials who could have stopped, curtailed or exposed the F.B.I.’s attack on King instead enabled or encouraged it.

I take issue with the use of the term "institutionalized," which I believe is misused. "Institutionalized" means "created and controlled by an established organization" or "established as a common and accepted part of a system or culture." In this context, the use of the term “institutionalized” strongly implies that resistance to King's movement for equal justice and rights for negroes (black Americans in today's common usage) is embedded in the ideological underpinnings of American law and constitution. 

But that is the opposite of the truth. Institutionally——that is, in law and philosophy—America is about universal individual rights, equality before the law, and justice. It's embedded in our Founding documents, the Declaration of Independence and U.S. Constitution. In fact, it was King who fought for the American institution. Just read King’s I Have a Dream and Emancipation Proclamation Centennial Address speeches, in which King gave his ringing endorsement and tribute to America’s Founding principles. Fundamentally—that is, institutionally—these principles are what America is about. It was the "members of the press" and "many government officials" who went against it. It is they, not the institution, that should be called out. In truth, they are the reactionaries. Conflating Johnson, Hoover, and the other villains under the term "institutionalized" only undermines what King fought against and for.

Has America had more than a few bad actors? Of Course. Half the country abandoned the principles of equal rights to protect slavery. A major racist political movement, Progressivism, at times claimed majority support and elected racist presidents like Woodrow Wilson and FDR, and led the drive to segregate America. Genuine Americans—individuals who actually adhere to the Founding principles—have at times, maybe most of the time, been in the minority—and I would argue, in a critical sense, still are. But political and cultural dominance is not the same as American institutionalism.

Speaking broadly, resistance to change is a common feature, not limited to the United States. But if any country embodies change more than others, it is America, which was Founded on powerful and radical individualist principles. The Civil Rights Movement is evidence of that. From the abolition of slavery to the breaking of Baseball’s “color barrier” by Jackie Robinson and Larry Doby to the passing of the 1964 Civil Rights Act, which was overwhelmingly passed by some 2/3 of Democrats and 4/5 of Republicans on the heels of a massive cultural change for the better that occurred in that 1947 - 64 period. Without hyperbole or exaggeration, I would equate that period in importance with the period 1760 - 1776, when a philosophical Revolution in the American Mind led to the Declaration of Independence. Philosophical scholar Jason D. Hill called this period America’s Third Founding. And it was led by the power of Americanism.

Related Reading:

Juneteenth, the Offspring of the Fourth of July

What Do White Americans Owe Black People: Racial Justice in the Age of Post-Oppression by Jason D. Hill 

A New Textbook of Americanism — edited by Jonathan Hoenig

America's Revolutionary Mind: A Moral History of the American Revolution and the Declaration That Defined It by C. Bradley Thompson.

On This Constitution Day, Remember the Declaration of Independence

“I Have a Dream”: Martin Luther King Urges Consistency to Founding Principles -- my article for The Objective Standard

42: The Triumph of Courage and Moral Certitude over Irrationality and Bigotry -- my article for The Objective Standard

Larry Doby, American Hero -- my article for The Objective Standard

The Color of Law: A Forgotten History of How Our Government Segregated America by Richard Rothstein