Courtesy of Kenin Spivak RealClearPolitics
The Supreme Court had several opportunities during its last term to end conservative censorship on social media, but it chose a different path. Now, Democrats could further accelerate the Biden-Harris administration’s massive censorship project.
There are many signs that they intend to do so.
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The First Amendment to the Constitution, the bedrock of American democracy, prohibits Congress from making laws “abridging the freedom of speech or the freedom of the press.” This prohibition also applies to executive action and state governments. Until recently, there was a bipartisan consensus on the centrality of free speech to American liberty. Today, about a third of Americans believe that free speech has gone too far.
When Donald Trump was elected president, congressional Democrats threatened social media platforms with antitrust measures and the repeal of Section 230 of the Communications Decency Act’s defamation protections if they failed to curb conservative speech. When Joe Biden took office, the federal government institutionalized censorship corporations that coerce and cooperate with social media platforms to censor, suppress, and devalue unpopular views.
The New York Times acknowledges that the left has long sought to limit “unfettered speech.” Former President Barack Obama said at a Stanford University conference that government oversight is needed to combat so-called “disinformation.” Vice President Kamala Harris announced a White House task force to combat misinformation on women’s issues. Democratic vice presidential candidate Tim Walz told MSNBC, “There is no freedom of speech against disinformation or hate speech.” In fact, both are generally protected by the First Amendment. The Democratic platform sees controlling disinformation as a priority.
In contrast, in July, Republicans adopted a platform that stated, “We will prohibit the federal government from colluding with anyone to censor lawful speech, defund agencies that engage in censorship, and hold accountable any bureaucrat who engages in unlawful censorship. We will protect free speech online.”
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~ inside Mercy vs MissouriMedical professionals, Missouri, and Louisiana have filed suit to block the Biden-Harris censorship regime. During the investigation, officials testified that they worked with third parties, including Stanford, nonprofit associations, and social media companies, to deliberately end the government’s ban on interference with free speech. After reviewing the extensive findings, U.S. District Judge Terry Doty found that the Biden-Harris administration engaged in “a broad pressure campaign designed to coerce social media companies into suppressing speakers, views, and content that the government does not like,” and issued a preliminary injunction to stop it. A unanimous panel of the Fifth Circuit agreed with the findings, but adjusted the preliminary injunction to remove ambiguities and exclude some entities.
Florida and Texas have passed laws that make it harder for social media platforms to ban political speech. The 11th Circuit ruled that Florida’s law was unduly restrictive of editorial discretion, while the 5th Circuit upheld Texas’ law, concluding that censoring content is not speech.
Last semester, the Supreme Court ruled on both cases.
~ inside Mercy vs. Missouri, The 6-3 court reversed the Fifth Circuit’s ruling and ruled that the plaintiffs had no standing to sue because they failed to show that their speech was specifically censored by specific actions of specific government officials. The majority opinion found that the platforms had independent incentives to censor content, “often” exercised their own judgment, and likely would have censored the same content without government coercion or encouragement.
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~ inside Moody v. NetChoice, LLC, The court unanimously ruled that the Florida and Texas appeals courts had failed to properly analyze the First Amendment. It sent the case back for retrial, but warned the Fifth Circuit that content review generally involves editorial decisions protected by the First Amendment.
It is concerning that the court used the left’s preferred euphemism “content moderation” rather than “censorship” or “suppression” in these decisions. And while the court was appropriately wary of state interference in the editorial choices of social media platforms, it did not express similar concerns about the federal government. Matty There was no consistency Net ChoicePrecedents and Evidence Record.
~ inside bloodEteaErson v. city of greenville (1963) The Court held that when the government is so strongly involved in the conduct of a private party, it cannot be argued that the act occurred as a result of the private party’s choice, even if the private party acted independently. Norwood vs Harrison (1973) Chief Justice Warren Burger explained that the government “cannot induce, encourage, or facilitate a person to do anything that is constitutionally prohibited.” Jackson v. Metropolitan Edison Company (1974) and Bloom v. Yaretsky (1982) The court developed guidelines for when a government can be held liable for a person’s actions by coercing or “substantially encouraging” the person’s actions. Biden v. Knight Columbia University First Amendment Institute.(2021) Justice Clarence Thomas summarized that “the government cannot, by threat of adverse government action, accomplish what the Constitution directly prohibits.”
After the court’s ruling Matty, The Biden-Harris administration has stepped up its censorship efforts. The Justice Department’s July report recycles the same justifications for malicious foreign influence they used to defend. Matty The DOJ is again authorizing social media platforms to work with it to suppress undesirable posts. Last week, referring to an interview between Donald Trump and Elon Musk on X, White House press secretary Carine Jean-Pierre cited former press secretary Jen Psaki as saying that social media companies have a “responsibility” to stop misinformation and misinformation.
The Supreme Court’s ruling gives future plaintiffs a chance to more carefully link coercion to specific instances of censorship, but unless Republicans win in November, government-sponsored censorship of conservatives will only get worse.
Kenin M. Spivak is the founder and chairman of SMI Group LLC, an international consulting firm and investment bank. He is the author of fiction and nonfiction books and is a frequent speaker and contributor to the media, including The American Mind, National Review, National Association of Scholars, television, radio, and podcasts.
Reported with permission from RealClearWire.
