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 circulated lists of questionable materials to local police departments, and that it would recommend prosecution against those found to be delivering obscenity.
Four publishers sued. The case went to the Supreme Court. With one disagreement, the judges in Bantam Books Inc. against Sullivan (1963) held that the “informal censorship” violated the 14th Amendment. They also noted that it did not matter that the Rhode Island commission had no real power beyond “informal sanctions.”
“People do not lightly ignore the thinly veiled threats of public officers to institute criminal proceedings against them if they do not occur,” noted Justice William Brennan, a fierce liberal, in his opinion. “It would be naive to give credence to the state’s claim that these blacklists are in the nature of mere legal advice, when they clearly function as instruments of regulation independent of the laws against obscenity.”
Brennan’s warning is worth remembering when considering last week’s decision Missouri vs. Bidenin which a federal district judge in Louisiana, Terry Doughty, ordered the Biden administration to stop communicating with social media for purposes of “deleting, removing, suppressing or reducing content containing protected free speech.”
Judge Doughty’s order has flaws, including, it seems, some dubious claims in fact this must be investigated in detail. And the breadth of the pre-order is also a practical matter.
However, the order is a triumph for civil liberties. It should also be considered a victory for liberals, insofar as liberals have historically suspected Big Tech and the large national-security state — working together, as alleged in this case — to suppress the speech of people whose views they deem dangerous.
But in one of the stranger reversals of recent politics, it’s mostly conservatives who cheer — and liberals who decry — the ruling. “A government official appearing on a television show and declaring that certain speech is disinformation doesn’t even remotely come close to the government forcing social media companies to take down that speech,” quips law professors Laurence Tribe and Leah Litman in 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 encouraging companies to do what they think is right. The legal line between a government official encouraging or discouraging private conduct versus engaging in conduct that amounts to coercion is unclear.
But there is also a line that, in this case, the administration seems to have repeatedly crossed. Two examples:
On July 20, 2021, interview on MSNBC, 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 to make social media “open to lawsuits” for hosting Covid misinformation. Bedingfield responded, “We’re reviewing that, and certainly they should be held accountable.” Social media companies soon began deleting the pages and accounts of the so-called Disinformation Dozen, referring to famous vaccine skeptics.
October 29, 2021, Surgeon General Vivek Murthy tweeted that “We must demand that Facebook and the rest of the social media ecosystem take responsibility for stopping health misinformation on their platforms.” That day, according to Doughty’s decision, Facebook requested that the government provide a “federal health contract” to determine “what content would be censored on Facebook’s platforms.”
None of these cases is an example of the administration merely encouraging Big Tech to remove apparently harmful content. On the contrary, it’s multiple federal agencies screaming “jump” and threatening dire legal consequences and Big Tech responding, in effect, “How high?”
The constitutional principle should be obvious. “Government should not be able to skirt around its constitutional duty to protect free speech by delegating censorship to private sector actors,” Nadine Strossen, former president of the American Civil Liberties Union, told me on Tuesday. “If private sector action becomes so closely intertwined with the government that it becomes functionally indistinguishable from state action, it reasonably becomes subject to First Amendment restrictions.”
This is true regardless of whose speech is restricted.
Critics of last week’s ruling may argue that, at the height of the pandemic, with thousands of Americans dying from Covid every day, the government had a pressing interest in curbing what it saw as misinformation. Similar claims were made about communists at the height of the Cold War and anti-war activists during World War I. However, the actions of the government and powerful media against them shock us to this day.
It shouldn’t be hard to agree that the First Amendment’s highest purpose is to protect speech we like best — speech we believe is harmful, bigoted, obscene, or potentially injurious to health. Liberals should especially take care that the arguments they are now making for privatized censorship will not eventually be turned against them.