Censorship on Trial, but Fascism Goes Scot-Free

Tuesday, September 27, 2022

Blog Housekeeping Note: Although we are fortunate not to face a direct hit from Hurricane Ian, we are likely over the next few days to experience tropical storm conditions and the power outages that go with them.

tl;dr: I may miss one or more days of blogging over the next week.


Writing at Tablet Magazine, litigator Jenin Younes of the New Civil Liberties Alliance discusses the case Missouri v. Biden, which alleges that social media acted at the government's behest to remove material deemed "misinformation" by the government during the worst of the Covid pandemic:
The government has no business making you host -- or kick out -- someone who wants to proselytize in your own living room. The same applies to social media fora. (Image by Jon'Nathon Stebbe, via Unsplash, license.)
...The plaintiffs allege that the Biden administration and a number of federal agencies coerced social media platforms into censoring them and others for criticizing the government's COVID policies. In doing so, the Biden administration and relevant agencies had turned any ostensible private action by the social media companies into state action, in violation of the First Amendment. As the Supreme Court has long recognized and Justice Thomas explained in a concurring opinion just last year, "[t]he government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly."

Federal district courts have recently dismissed similar cases on the grounds that the plaintiffs could not prove state action. According to those judges, public admissions by then-White House press secretary Jennifer Psaki that the Biden administration was ordering social media companies to censor certain posts, as well as statements from Psaki, President Biden, Surgeon General Vivek Murthy, and DHS Secretary Alejandro Mayorkas threatening them with regulatory or other legal action if they declined to do so, still did not suffice to establish that the plaintiffs were censored on social media due to government action. Put another way, the judges declined to take the government at its word. But the Missouri judge reached a different conclusion, determining there was enough evidence in the record to infer that the government was involved in social media censorship, granting the plaintiffs' request for discovery at the preliminary injunction stage. [links omitted, bold added]
Younes goes on to mention numerous documents obtained via Freedom of Information Act (FOIA) requests that would seem to provide such evidence.

I am on the one hand glad that the case is going forward: If the government was threatening social media platforms in order to regulate content, that is censorship, and it needs to stop.

On the other, as well-intentioned and necessary this suit seems to be, I am concerned about its framing within the confused modern discourse surrounding free speech (and lack thereof regarding property rights). To the point: Jawboning tech companies is not a "Privatized Censorship Regime:" It's a fascistic censorship regime.

Had, say, Twitter, decided on its own to deplatform Jay Battacharya, that would not have been censorship (which only a government can commit), but the company deciding not to give him a platform to broadcast his own views. (Censorship violates freedom of speech; a private party not giving a platform is merely exercising its property rights.) But had Twitter done so under the threat of adverse regulation or some other government action, then it would be censorship, in which the government fascistically dictates how the company can use its own property.

These are hardly nitpicking distinctions, as witness what happens when they are ignored: We get a rash of measures that similarly violate the property rights of companies in order to forbid them to perform actions that resemble what Democrat politicians might favor: bans in Florida alone of private vaccination requirements or failing to provide a free social media presence to politicians immediately come to mind.

-- CAV

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