Must-Read on Government's Tech Censorship

On errands this weekend, I was listening to an episode (embedded below) of the Yaron Brook Show, where the host recommended a Wall Street Journal opinion piece by Phillip Hamburger, of the Columbia School Law School.

The title alone -- "How the Government Justifies Its Social-Media Censorship" -- is, as Brook indicates, a rare does of clarity in today's muddled and often dishonest debate about the subject.

This is because Hamburger places the blame where it belongs -- on the government -- at a time too many leftists pretend there is no censorship and too many conservatives merely want to be the ones calling the censorship shots while continuing to blame "big tech" for the problem.

Hamburger essentializes the strategy as one of "judicial negligence" that makes it hard for government officials to realize that what they are doing is illegal.

What stands in the way? Hamburger names and outlines five Supreme Court doctrines, including the below, for example -- which papers over the problem of the government using implied threats to get tech companies to do its dirty work:

Misunderstanding privatized censorship. When government uses private organizations such as Facebook and Twitter to censor speech, it's widely assumed that the silenced speakers are suppressed merely by private actors, not by government.

The court therefore tends to see no violation of the First Amendment unless government presses, encourages or integrates with the private organizations. As the court explained in Blum v. Yaretsky (1982), "our precedents indicate that a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." On this view, officials don't violate the First Amendment unless there's a cascade of government action -- from government to private companies down to private individuals.

But that standard is too high...

The requirement that the private partners must become government actors isn't supported by a careful reading of Blum, let alone the Constitution...

Because the First Amendment bars "abridging" the freedom of speech, any law or government policy that reduces that freedom on the platforms -- for example, by obtaining content or viewpoint discrimination -- violates the First Amendment.

...

If FBI agents politely ask a private construction firm to bulldoze your house, and the firm patriotically cooperates, the FBI will have acted unconstitutionally -- even though the private firm is merely private and acted consensually. Similarly, when FBI agents or other officials persistently seek the consensual cooperation of social-media platforms in suppressing disfavored speech, the FBI agents are abridging the freedom of speech.

...

Supreme Court doctrine, however, dangerously encourages government to think it can use private firms to circumvent the First Amendment -- as long as it doesn't turn them into government actors. This is especially worrisome because it seems paradoxical and hazardous to say that private companies can be considered government actors. Many judges are reluctant to reach so perverse a conclusion, thus giving even greater leeway for privatized government censorship. [italics in original, bold added]

Let me second Brook's recommendation. I believe he said that the piece is an example of the direction that the debate over tech censorship ought to go. I heartily concur, and recommend reading the whole thing.

-- CAV