White House Tells Facebook How to Censor: Does First Amendment Apply?

During a press briefing on Thursday, Jen Psaki explained that the White House is coordinating with social media companies to stop "disinformation" about Covid-19. "We're flagging problematic posts for Facebook that spread disinformation," she said, matter-of-factly. But the White House is not just making general suggestions -- it is pressing for their enforcement. And this violates the First Amendment.

She said that the White House expects the platforms to "measure and publicly share the impact of misinformation... This should be provided not just to researchers but to the public." She also stated that the White House has proposed "a robust enforcement strategy."

She said that the administration is urging social media platforms to "promote quality information sources" over "low quality information."

Pushing for action, she reminded that "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."

Joe Biden, asked on Friday for comment about Facebook's role in Covid, responded that because the only pandemic is now among the unvaccinated, "they [Facebook] are killing people."

Glenn Greenwald slammed the government calls for censorship: "The Biden administration is telling Facebook which posts it regards as 'problematic' so that Facebook can remove them. This is the union of corporate and state power -- one of the classic hallmarks fo fascism -- that the people who spent 5 years babbling about fascism support."

While there is indeed an enormous amount of nonsense posted about Covid-19, one can ask whether banning discussion is even helpful. Given the absolute and complete discrediting of the media and expertariat generally, banning the discussion of a certain viewpoint may have the opposite effect! If a viewpoint cannot be publicly expressed on Twitter, then it cannot be met with thoughtful replies that encourage reflection (Although this is not the norm on Twitter, it does happen.) Some of the claims -- such as about VAERS figures -- are easily refuted. And the 180-degree turn on the Wuhan lab leak -- censored when Trump said it and now embraced to create a war with China -- hardly gives credibility to the would-be arbiters of truth!

But more essentially, it is absolutely clear that if companies (whose private nature is much ballyhooed by censorship proponents) are taking actions due to pressure from the government, the First Amendment prohibition on limiting speech -- which applies to the government -- will apply to them as well! This not mere speculation. It comes from Supreme Court decisions:

In a 1973 Supreme Court case, the Court held that Congress "may not induce, encourage, or promote private persons to accomplish what it is constitutionally forbidden to accomplish." An article written by Glenn Greenwald in February -- on the occasion of social media CEOs being brought, yet again, to Congress to be scolded -- quotes an ACLU Director, Ben Wizner, "For the same reasons that the Constitution prohibits the government from dictating what information we can see and read (outside narrow limits), it also prohibits the government from using its immense authority to coerce private actors into censoring on its behalf."

The ACLU had successfully defended the National Rifle Association in a 2018 suit against New York State and Gov. Cuomo on the basis that threats against business entities that facilitated the actions of the NRA constituted a viewpoint-based attack on the NRA's freedom of speech.

A 1963 Supreme Court case took up the state of Rhode Island's issuing to bookstores lists of books the government considered "objectionable," with a "request" that they "voluntarily" cease selling the book. The Supreme Court ruled this a violation of the First Amendment, even though the state legislature did not directly pass a law preventing the sale of certain books: "The [Rhode Island] commission deliberately set about to achieve the suppression of publications deemed 'objectionable,' and succeeded in its aim." The threat from the state was clear to the Court: "People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around." The Court summed it up: "Their operation was in fact a scheme of state censorship effectuated by extra-legal sanctions; they acted as an agency not to advise but to suppress."

What is required is either a Supreme Court ruling or new legislation to make clear the limits of government interference in social media discussions, and the limits of the social media companies themselves to censor viewpoints they consider objectionable, but which are not illegal.

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  • Jason Ross
    published this page in Home 2021-07-16 17:15:57 -0400