What’s the argument against applying the First Amendment to Big Tech giants? They’re private companies. Not if they’re engaging in censorship at the behest of the state.
Then it’s state action.
The government cannot ask a company to do anything that it can’t do itself. Otherwise all rights and limitations on government power become a farce.
Earlier this year, I broke the story about California Democrats using election integrity to censor Facebook content.
“Report misinformation,” a flier from California’s Office of Election Cybersecurity blares. Social media users are urged to report “misleading” materials to the Secretary of State’s office. A government office created by California Democrats is monitoring hashtags, classifying political speech it opposes by “threat level”, taking screenshots of posts, and then storing the information indefinitely, before reporting the offending speech to social media companies for censorship.
California’s blatant censorship has now gone national.
During a press briefing Thursday, Press Secretary Jen Psaki said that the White House was collaborating with social media companies to censor COVID ‘disinformation.’
“We’re flagging problematic posts for Facebook that spread disinformation,” she said.
She discussed four key steps the federal government is taking to hold Facebook and other tech titans accountable for identifying and restricting content deemed factually incorrect surrounding the COVID vaccine.
“Facebook should provide publicly and transparently data on the reach of the COVID-19 vaccine misinformation, not just engagement but the reach of the misinformation and the audience that it’s reaching,” Psaki commented.
She also said the White House had proposed a “robust enforcement strategy” that bridges the properties of the tech titans like Facebook, which also owns the popular apps Instagram and Snapchat, and “provides transparency about the rules.”
“There’s about 12 people that are producing 65 percent of anti-vaccine misinformation on social media platforms. All of them remain active on Facebook despite some of them even being banned on other platforms including ones that Facebook owns,” Psaki added.
She urged Facebook to move more expeditiously to find and remove misleading content before it is consumed by a large number of users.
“It’s important to take faster action against harmful posts. As you all know, information travels quite quickly on social media platforms sometimes that’s not accurate,” the press secretary emphasized.
Facebook has an obligation to use its power to “promote quality information sources in their feed algorithm,” Psaki suggested, noting that “Facebook has repeatedly shown they have the leverage” to do so.
How is this not state action?
A top government official is laying out how a monopoly should censor and what it needs to do to properly censor, advising it of censorship targets, and flagging material for it to censor.
Barring an actual contract or law, this is as close to state action as you can get.
This is exactly what Justice Clarence Thomas was discussing earlier.
None of this analysis means, however, that the First Amendment is irrelevant until a legislature imposes common carrier or public accommodation restrictions—only that the principal means for regulating digital platforms is through those methods. Some speech doctrines might still apply in limited circumstances, as this Court has recognized in the past. For example, although a “private entity is not ordinarily constrained by the First Amendment,” Halleck, 587 U. S., at ___, ___ (slip op., at 6, 9), it is if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint. Ibid. Consider government threats. “People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around.” Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 68 (1963). The government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly. See ibid.; Blum v. Yaretsky, 457 U. S. 991, 1004–1005 (1982). Under this doctrine, plaintiffs might have colorable claims against a digital platform if it took adverse action against them in response to government threats.
The Biden administration is wrapping this around an “emergency” situation.
Except there’s no actual waiver on emergencies in the First Amendment. Nor is there currently an emergency. People have the right to disagree about the science or to introduce any wacky beliefs they have. That’s what a free country means. If someone wants to claim that vaccines will turn you into a werewolf, the vast weight of the Constitution and its precedents show that they have the absolute right to do so.
Whether or not a Big Tech monopoly that controls 80% of search has the right to silence them is a moot point when the silencing is happening in response to pressure, direction, and guidance for the government.
Until the last 5 years, censorship largely involved the accounts and content of terrorist organizations. Those organizations were illegal.
Dissenting from a government position, rightly or wrongly, is not illegal.
This is a blatant First Amendment violation and as the situation escalates, there’s every reason for the Supreme Court to intervene.
(As a side note, the response from the same media which cries about the First Amendment when it comes to its own speech, but loudly calls for censoring everyone else, to this admission is not, “What the hell are you doing?”, it’s “Faster, please!”
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