Principled Perspectives: Censorship-by-Proxy

Showing posts with label Censorship-by-Proxy. Show all posts

Sunday, July 30, 2023

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.

Monday, September 20, 2021

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

There is a line of thought developing that holds that if social media companies restrict content that the government wants restricted, there is fascist collusion going on. Consequently, private social media companies should be subject to civil or criminal sanctions for anti-First Amendment violations.

As Lori Roman and Naomi Wolf write in Left and Right Should Unite to Stop Censorship for The Epoch Times

We, a former advisor to President Bill Clinton’s campaign and a former member of the George W. Bush Administration, may not agree on many public policy issues. Figuratively speaking, we wear different colored hats. But we have joined together to sound the alarm against censorship.

Viewpoint censorship threatens to destroy the country as it was intended to be—a beacon of freedom of speech, religion, and assembly. The First Amendment protects citizens from the government controlling speech, and the principle of free speech permeates our founding principles.

Just last week, the White House press secretary bragged that the Biden Administration is working with social media companies to flag speech they find unacceptable. They label it “misinformation” while a better description would be “inconvenient information.”

Corporations may think they are free to censor speech because the First Amendment was written to constrain government, but when they conspire and collude with the government to censor, they have crossed the line and left themselves open to litigation that could destroy their companies.

But this is very dangerous thinking. It assumes that Facebook et al are on equal footing with the government. That is entirely false. The government has a legal monopoly on the use of physical force -- the power of the gun. Facebook has no such power. It only has the market power of voluntarism -- the power of the dollar.

To equivocate Facebook with the Biden Administration is a grave injustice. The New York Times reports how Joe Biden “has assembled the most aggressive antitrust team in decades,

stacking his administration with three legal crusaders as it prepares to take on corporate consolidation and market power with efforts that could include blocking mergers and breaking up big companies.

Antitrust not only empowers the government to block mergers and dismantle private companies, but also to levy ruiness fines and even jail executives. What chance does Facebook have against that kind of power? Yes, it can fight in court. But there is no realistic defense against undefined accusations, like “intent to monopolize.” Ultimately, government wins because it has, through antitrust, arbitrary, undefined, unlimited powers -- not to mention unlimited resources.

Let’s take a look at a recent example of how this mismatch between private companies and the government. President Biden has pressured social media to take down so-called “misinformation” about the COVID-19 vaccines. As Jacob Sullum writes in Joe Biden Is Trying to Impose Online Censorship by Proxy for Reason, “The administration’s public pressure campaign against COVID-19 ‘misinformation’ cannot be reconciled with its avowed respect for freedom of expression.”

President Joe Biden wants to suppress speech that discourages Americans from being vaccinated against COVID-19. Because the First Amendment does not allow him to do that, he is asking Facebook and other social media companies to do it for him.

Or at least that's the way White House Press Secretary Jen Psaki, who calls the Biden administration's demands for speech restrictions "our asks," describes the situation. But given the federal government's power to make life difficult for Facebook et al., the line between a request and a command is hazy, and so is the line between private content moderation and government censorship.

Psaki's assurances are hard to take seriously given the public pressure that the Biden administration is applying, its ability to launch litigation and support legislation that hurts social media companies, and its threat of "legal and regulatory measures." If those companies do what the president wants by cracking down on speech he does not like, they will be acting as the government's agents.

Emphasis is mine. Of course, a private company has a right to its political opinion. If it wants to help the Biden Administration advance a particular viewpoint about vaccines, it has as much right to take a political position as you or I have. It has as much right to ban what it considers “misinformation” on its platform as a lecture hall owner has to ban it in their venues or, for that matter, you or I have to ban it in our homes (although that would violate their stated purpose of fostering free expression and likely be commercially harmful over time).

But that’s not what’s going on with the alleged “collusion” charges levied by the likes of Lori Roman and Naomi Wolf. These private companies literally have a governmental gun to their heads. New Jersey Representative Tom Malinowski captured the essence of this fact when, in support of his proposed Protecting Americans from Dangerous Algorithms Act, which is intended to force companies to reign in “extreme left-wing”--and right-wing--“ideas,” he warned, “And if they don’t do it voluntarily, we’re going to have to regulate them to death.” If a sitting congressman can get away with such overt public threats, we can only imagine what's going on behind the scenes.

I've been warning about censorship-by-proxy for a long time. The politicians can't directly censor, because of the First Amendment. But they have a powerful backdoor weapon, the regulatory state. Politicians can "arm twist" companies into submission by threatening regulation, in particular antitrust enforcement. The antitrust "laws" are particularly powerful. They're not really laws. They are unAmerican statutes that grant government arbitrary power, the tool of authoritarianism. Antitrust gives politicians power to prosecute any business for anything, at any time, at will. And it's a powerful tool for politicians to pressure private entities to do its bidding. Antitrust is Al Capone "politics," not law. Given that politicians of both parties are already threatening social media companies with antitrust, how much choice do they have to resist the political demand to censor their users? After all, the only power companies have is voluntary market, or economic, power. The government has the coercive power of law. Facebook’s dollar is no match for the government’s bullet.

This demonstrates the integral nature of rights, in which intellectual freedom depends on economic freedom, and vice-versa—and both depend on political freedom. It also shows how individual rights depend on grasping the crucial distinction between economic and political power, or what philosopher Harry Binswanger symbolizes as The Dollar and the Gun. This case shows how economic controls are used to crush other freedoms, like free speech. Intellectual freedom is not possible without economic freedom. Roman and Wolf call this “collusion” “indicative of America’s freefall into fascism.” Yes, it is fascism. But don't blame the social media companies. They are victims of the government’s fascist attack. Blame the government, which holds the power of the gun—a power that neither Facebook nor Twitter nor any private company possesses. The Italian government of Benito Mussolini, the original fascist, explains in “the ninth declaration of the Charter of Labor,

The intervention of the state in economic production takes place only when private initiative is lacking or is insufficient or when political interests of the state are involved. Such intervention may assume the form of control, assistance, or direct management.

Fascism can only be initiated by the state. Private entities, in and of themselves, by definition cannot initiate fascism under a proper, individual rights-securing constitution. We need to understand this distinction. Our freedom depends on it.