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:
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.
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