In the late 1950s, the Rhode Island legislature created a commission “to encourage morality in youth.” One of its practices was to send notices to out-of-state distributors and retailers of publications it deemed obscene, asking for “cooperation” in suppressing them. The notices warned that the commission had circulated lists of objectionable materials to local police departments, and that it would recommend prosecution against those found to be purveying obscenity.
Four publishers sued. The case went to the Supreme Court. With one dissent, the justices in Bantam Books Inc. v. Sullivan (1963) held that the “informal censorship” violated the 14th Amendment. They also noted that it didn’t matter that the Rhode Island commission had no real power beyond “informal sanctions.”
“People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around,” noted Justice William Brennan, a fierce liberal, in his opinion. “It would be naïve to credit the state’s assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the laws against obscenity.”
Brennan’s warning is worth keeping in mind when considering last week’s ruling in Missouri v. Biden, in which a federal district judge in Louisiana, Terry Doughty, ordered the Biden administration to desist from communicating with social media platforms for purposes of “removal, deletion, suppression or reduction of content containing protected free speech.”
Judge Doughty’s order has flaws, including, it seems, some dubious assertions of fact that need to be closely investigated. And the broadness of the preliminary injunction is also a practical issue.
Still, the order is a triumph for civil liberties. It also ought to be considered a victory for liberals, insofar as liberals have historically been suspicious of Big Tech and the big national-security state — cooperating, as alleged in this case — to suppress the speech of people whose views they deem dangerous.
But in one of the stranger inversions of recent politics, it’s mostly conservatives who are cheering — and liberals who are decrying — the ruling. “A government official appearing on a television show and stating that certain speech is disinformation does not come even remotely close to the government coercing social media companies into removing that speech,” scoff the law professors Laurence Tribe and Leah Litman in an essay on the Just Security website.
Fair enough. And it’s certainly true that senior government officials, no less than private individuals, also have free speech rights, which include urging companies to do what they think is the right thing. The legal line between a government official encouraging or discouraging private conduct versus engaging in behavior that amounts to coercion is a blurry one.
But it’s also a line that, in this case, the administration seems to have repeatedly crossed. Two examples:
In a July 20, 2021, interview on MSNBC, the anchor Mika Brzezinski asked Kate Bedingfield, who was then the White House communications director, whether the White House would amend Section 230 of the Communications Decency Act so that social media companies would be “open to lawsuits” for hosting Covid misinformation. Bedingfield replied, “We’re reviewing that, and certainly they should be held accountable.” Social media companies soon began to remove the pages and accounts of the so-called Disinformation Dozen, referring to notorious vaccine skeptics.
On Oct. 29, 2021, Surgeon General Vivek Murthy tweeted that “we must demand Facebook and the rest of the social media ecosystem take responsibility for stopping health misinformation on their platforms.” That day, according to Doughty’s ruling, Facebook requested that the government provide a “federal health contract” to determine “what content would be censored on Facebook’s platforms.”
Neither of these cases is an example of the administration merely encouraging Big Tech to remove ostensibly harmful content. On the contrary, it is multiple federal agencies yelling “jump” and threatening dire legal consequences and Big Tech replying, in effect, “How high?”
The constitutional principle should be obvious. “Government should not be able to do an end-run around its constitutional obligation to protect freedom of speech by delegating censorship to private-sector actors,” Nadine Strossen, a former president of the American Civil Liberties Union, told me on Tuesday. “If private-sector action becomes so closely interwoven with the government that it becomes functionally indistinguishable from state action, it sensibly becomes subject to First Amendment constraints.”
That’s true irrespective of whose speech is being curtailed.
Critics of last week’s ruling may claim that, at the height of the pandemic, with thousands of Americans dying of Covid every day, the government had an urgent interest in curtailing what it saw as misinformation. Similar claims were made about communists at the height of the Cold War and antiwar activists during World War I. Yet the actions of government and powerful media companies against them shock us to this day.
It shouldn’t be hard to agree that the highest purpose of the First Amendment is to protect speech we like the least — speech we are sure is pernicious, bigoted, obscene or potentially harmful to health. Liberals especially should take care that the arguments they now make for privatized censorship will not eventually be turned on them.
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