This is an argument I’ve been making for a while. It’s refreshing to see the Wall Street Journal run an op-ed that highlights the fact that Big Tech censorship is really government censorship. It’s a point I reiterated in last week’s article about how California had created a censorship agency that monitors social media and tells companies that it wants certain messages taken down.
The Democrat operatives running the government censorship office claim that they aren’t engaging in censorship because they’re not the ones directly censoring online speech.
That’s the difference between the government sending in jackbooted thugs to smash up a printing press and putting in a call to the editor warning him not to print a particular article.
Freedom of Speech doesn’t just refer to the former, but also to the chilling effect of the latter.
The WSJ op-ed zooms in on the question of state action.
Can Democrat officials repeatedly call for censorship and then claim that Facebook is acting independently of the government? That question is about to get much stronger with a Democrat executive.
Conventional wisdom holds that technology companies are free to regulate content because they are private, and the First Amendment protects only against government censorship. That view is wrong: Google, Facebook and Twitter should be treated as state actors under existing legal doctrines. Using a combination of statutory inducements and regulatory threats, Congress has co-opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution.
It is “axiomatic,” the Supreme Court held in Norwood v. Harrison (1973), that the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.”
Then the op-ed goes down the Section 230 rabbit hole. But the op-ed is on much stronger ground when it addresses the fact that elected officials have repeatedly told Big Tech to engage in censorship.
Congressional Democrats have repeatedly made explicit threats to social-media giants if they failed to censor speech those lawmakers disfavored. In April 2019, Louisiana Rep. Cedric Richmond warned Facebook and Google that they had “better” restrict what he and his colleagues saw as harmful content or face regulation: “We’re going to make it swift, we’re going to make it strong, and we’re going to hold them very accountable.” New York Rep. Jerrold Nadler added: “Let’s see what happens by just pressuring them.”
Such threats have worked. In September 2019, the day before another congressional grilling was to begin, Facebook announced important new restrictions on “hate speech.” It’s no accident that big tech took its most aggressive steps against Mr. Trump just as Democrats were poised to take control of the White House and Senate. Prominent Democrats promptly voiced approval of big tech’s actions, which Connecticut Sen. Richard Blumenthal expressly attributed to “a shift in the political winds.”
For more than half a century courts have held that governmental threats can turn private conduct into state action. In Bantam Books v. Sullivan (1963), the Supreme Court found a First Amendment violation when a private bookseller stopped selling works state officials deemed “objectionable” after they sent him a veiled threat of prosecution. In Carlin Communications v. Mountain States Telephone & Telegraph Co. (1987), the Ninth U.S. Circuit Court of Appeals found state action when an official induced a telephone company to stop carrying offensive content, again by threat of prosecution.
The standard defense that private companies can do what they like and it’s not a First Amendment violation falls apart when they’re actually doing what elected officials keep telling them to do.
“Censor conservatives. Censor conservatives. They did it. Oh that’s private action, not state action. No First Amendment violation here.”
First Amendment violations don’t have to be a direct attack. There can be middlemen. Elected officials threatening a newspaper with punitive action for running a particular column is an attack on the First Amendment. If that column is dropped, then the attack is successful.
Such an attack isn’t fatal because there are more papers. But when there exists an monopoly over information, such as there is with Big Tech, then free speech dies. And it dies because of the actions of elected officials and their allied monopolies.
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