Authored by Glenn Greenwald via. greenwald.substack.com,
For the third time in less than five months, the U.S. Congress has summoned the CEOs of social media companies to appear before them, with the explicit intent to pressure and coerce them to censor more content from their platforms. On March 25, the House Energy and Commerce Committee will interrogate Twitters Jack Dorsey, Facebookss Mark Zuckerberg and Googles Sundar Pichai at a hearing which the Committee announced will focus on misinformation and disinformation plaguing online platforms.
CEO of Twitter Jack Dorsey (R) and Facebook COO Sheryl Sandberg (L) are sworn in to testify before the Senate Intelligence Committee on Capitol Hill in Washington, DC, on September 5, 2018. (Photo by Jim WATSON / AFP) (Photo credit should read JIM WATSON/AFP via Getty Images) The Committees Chair, Rep. Frank Pallone, Jr. (D-NJ), and the two Chairs of the Subcommittees holding the hearings, Mike Doyle (D-PA) and Jan Schakowsky (D-IL), said in a joint statement that the impetus was falsehoods about the COVID-19 vaccine and debunked claims of election fraud. They argued that these online platforms have allowed misinformation to spread, intensifying national crises with real-life, grim consequences for public health and safety, adding: This hearing will continue the Committees work of holding online platforms accountable for the growing rise of misinformation and disinformation.
House Democrats have made no secret of their ultimate goal with this hearing: to exert control over the content on these online platforms. Industry self-regulation has failed, they said, and therefore we must begin the work of changing incentives driving social media companies to allow and even promote misinformation and disinformation. In other words, they intend to use state power to influence and coerce these companies to change which content they do and do not allow to be published.
Ive written and spoken at length over the past several years about the dangers of vesting the power in the state, or in tech monopolies, to determine what is true and false, or what constitutes permissible opinion and what does not. I will not repeat those points here.
Instead, the key point raised by these last threats from House Democrats is an often-overlooked one: while the First Amendment does not apply to voluntary choices made by a private company about what speech to allow or prohibit, it does bar the U.S. Government from coercing or threatening such companies to censor. In other words, Congress violates the First Amendment when it attempts to require private companies to impose viewpoint-based speech restrictions which the government itself would be constitutionally barred from imposing.
It may not be easy to draw where the precise line is to know exactly when Congress has crossed from merely expressing concerns into unconstitutional regulation of speech through its influence over private companies but there is no question that the First Amendment does not permit indirect censorship through regulatory and legal threats.
Ben Wizner, Director of the ACLUs Speech, Privacy, and Technology Project, told me that while a constitutional analysis depends on a variety of factors including the types of threats issued and how much coercion is amassed, it is well-established that the First Amendment governs attempts by Congress to pressure private companies to censor:
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.
In a January Wall Street Journal op-ed, tech entrepreneur Vivek Ramaswamy and Yale Law Schools constitutional scholar Jed Rubenfeld warned that Congress is rapidly approaching this constitutional boundary if it has not already transgressed it. Using a combination of statutory inducements and regulatory threats, the duo wrote, Congress has co- opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution.
That article compiled just a small sample of case law making clear that efforts to coerce private actors to censor speech implicate core First Amendment free speech guarantees. In Norwood v. Harrison (1973), for instance, the Court declared it axiomatic a basic legal principle that Congress may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish. They noted: For more than half a century courts have held that governmental threats can turn private conduct into state action.
In 2018, the ACLU successfully defended the National Rifle Association (NRA) in suing Gov. Andrew Cuomo and New York State on the ground that attempts of state officials to coerce private companies to cease doing business with the NRA using implicit threats driven by Cuomos contempt for the NRAs political views amounted to a violation of the First Amendment. Because, argued the ACLU, the communications of Cuomos aides to banks and insurance firms could reasonably be interpreted as a threat of retaliatory enforcement against firms that do not sever ties with gun promotion groups, that conduct ran afoul of the well- established principle that the government may violate the First Amendment through action that falls short of a direct prohibition against speech, including by retaliation or threats of retaliation against speakers. In sum, argued the civil liberties group in reasoning accepted by the court:
Courts have never required plaintiffs to demonstrate that the government directly attempted to suppress their protected expression in order to establish First Amendment retaliation, and they have often upheld First Amendment retaliation claims involving adverse economic action designed to chill speech indirectly.
In explaining its rationale for defending the NRA, the ACLU described how easily these same state powers could be abused by a Republican governor against liberal activist groups for instance, by threatening banks to cease providing services to Planned Parenthood or LGBT advocacy groups. When the judge rejected Cuomos motion to dismiss the NRAs lawsuit, Reuters explained the key lesson in its headline:
Perhaps the ruling most relevant to current controversies occurred in the 1963 Supreme Court case Bantam Books v. Sullivan. In the name of combatting the obscene, indecent and impure, the Rhode Island legislature instituted a commission to notify bookstores when they determined a book or magazine to be objectionable, and requested their cooperation by removing it and refusing to sell it any longer. Four book publishers and distributors sued, seeking a declaration that this practice was a violation of the First Amendment even though they were never technically forced to censor. Instead, they ceased selling the flagged books voluntarily due to fear of the threats implicit in the advisory notices received from the state.
In a statement that House Democrats and their defenders would certainly invoke to justify what they are doing with Silicon Valley, Rhode Island officials insisted that they were not unconstitutionally censoring because their scheme does not regulate or suppress obscenity, but simply exhorts booksellers and advises them of their legal rights.
In rejecting that disingenuous claim, the Supreme Court conceded that it is true that [plaintiffs] books have not been seized or banned by the State, and that no one has been prosecuted for their possession or sale. Nonetheless, the Court emphasized that Rhode Islands legislature just like these House Democrats summoning tech executives had been explicitly clear that their goal was the suppression of speech they disliked: the Commission deliberately set about to achieve the suppression of publications deemed objectionable, and succeeded in its aim. And the Court emphasized that the barely disguised goal of the state was to intimidate these private book publishers and distributors into censoring by issuing implicit threats of punishment for non- compliance:
It is true, as noted by the Supreme Court of Rhode Island, that [the book distributor] was "free" to ignore the Commission's notices, in the sense that his refusal to "cooperate" would have violated no law. But it was found as a fact -- and the finding, being amply supported by the record, binds us -- that [the book distributor's] compliance with the Commission's directives was not voluntary. People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around, and [the distributors] reaction, according to uncontroverted testimony, was no exception to this general rule. The Commission's notices, phrased virtually as orders, reasonably understood to be such by the distributor, invariably followed up by police visitations, in fact stopped the circulation of the listed publications ex proprio vigore [by its own force]. It would be naive to credit the State's assertion that these blacklists are in the nature of mere legal advice when they plainly serve as instruments of regulation.
In sum, concluded the Bantam Books Court: 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.
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