Stop Government Censorship

One of the greatest rights we have as Americans is the ability to speak our minds without fear that some government bureaucrat will cancel us.  This is not just a perk of living in a free and open country.  It...

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One of the greatest rights we have as Americans is the ability to speak our minds without fear that some government bureaucrat will cancel us.  This is not just a perk of living in a free and open country.  It is a prerequisite.  For “we the people” to govern ourselves, we must be able to publicly discuss and debate different ideas. 

This can be messy, uncomfortable, and even inconvenient, especially for those in powerful positions.  Government officials believe they know what is best, and that everyone would be better off if they simply agreed.  But the federal government does not have a monopoly on the truth.  It is a human institution that can and does get things wrong.  

The prayer of St. Francis of Assisi asks “where there is error, may we bring truth.”  That can only happen when government does not place its thumb on the scale to suppress dissenting views and the discussion of ideas. Government cannot be the arbiter of what is or is not true in the public square. (READ MORE: Censorship Is More Dangerous Than Disinformation)

At their core, this is what the claim at issue in a case decided by the Supreme Court, Murthy v. Missouri, were all about.  This case involved efforts by officials throughout the federal government, including the Biden White House, the CDC, the Surgeon General, the FBI, and the Department of Homeland Security, to flag disfavored social media posts and pressure social media companies to change their content moderation policies.  They particularly focused on issues relating to COVID-19 and elections. 

The plaintiffs were states and individuals who had their social media posts suppressed by social media companies, purportedly in response to government actions to badger social media companies.  

The lower courts determined that the government violated the plaintiffs’ First Amendment rights and issued an order restricting government interaction with social media companies.

The Supreme Court, however, said that those lower courts should never have even considered the cases. This abdicates the Court’s role as a forum where citizens can challenge government intrusions on their First Amendment rights. The majority slammed the courthouse doors shut to the plaintiffs, finding that they lacked “standing” to challenge the government’s actions.  As Justice Alito said in dissent, the majority’s ruling sends a message that “[i]f a coercive campaign is carried out with enough sophistication, it may get by,” leaving citizens with no chance to even have their day in court.  “That is not a message this court should send.”

The Supreme Court’s decision does not have to be the last word on this matter. The fight against government censorship must now necessarily shift to Congress and the White House to protect the free and open discussion of ideas on social media.

To do this, Congress can begin by drawing defined lines and boundaries between government officials and social media companies.  As reflected in the Murthy decision, government has often exploited a murky relationship where officials can demand action from social media companies then point a finger at social media companies for making decisions to implement their requests.  This can and should change.  While law enforcement agencies have legitimate reasons for asking to take down illegal content, and the rest of government should not be doing so.

Congress can also leverage its power of the purse to end the funding of a public-private censorship complex.  Rather than act directly to censor speech on social media, some agencies partner with “outside” groups who receive generous government grants and funding.  If these groups want to engage in a private crusade against internet speech, they are free do so.  But they should do so without taxpayer dollars.

Congress can also ensure that its anticensorship policies have teeth.  There must be consequences, ranging from adverse employment actions, termination, and even civil or criminal liability for public officials who trample upon the First Amendment rights of American citizens.

Passing new laws through Congress can be difficult and time consuming.  Fortunately, there are things that can be done even without Congressional action.  For example, through the President’s power over the executive branch, this (or the next) White House can effectively reinstate many of the restrictions on coercive communications put in place by the lower courts in Murthy through executive action. (READ MORE: The Censorship Lobby Is Worried About … Censorship?)

It has been said that “the price of liberty is eternal vigilance.” None of these actions are a silver bullet, but each are concrete steps we can take together to preserve, protect, and defend our freedom of speech for the next generation.  

Curtis Schube is the Executive Director for Council to Modernize Governance, a think tank committed to making the administration of government more efficient, representative, and restrained. He is formerly a constitutional and administrative law attorney.

Gary Lawkowski is a lawyer with the Dhillon Law Group, where he advises and represents clients on legal issues including matters concerning the Freedom of Information Act. He is also a Senior Fellow for the Council to Modernize Governance.

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