Freedom of speech has been placed increasingly at risk as we transition to the neoteric “Age of Information/Misinformation/Disinformation,” dominated by the proliferation of social media platforms, hyperbolic news feeds, and a mounting degree of intolerance for speech that is unpopular, offensive, or counter to what the deciding authorities deem “mainstream.” Indeed, the First Amendment’s guarantee of free speech has recently taken a backseat to a newfangled guarantee of freedom from offense and so-called misinformation—or what has amounted to bona fide, government-induced censorship.
Until recently, the full extent of the government’s role in censoring American citizens was largely unknown to the public. However, the discovery produced in Missouri v. Biden, as well as the information revealed by Elon Musk’s release of the Twitter Files, has brought to light the shocking role that the U.S. government has played (and continues to play) in ensuring that disfavored or opposing viewpoints are suppressed. This sprawling censorship enterprise has involved the efforts of at least a dozen federal agencies and myriad government actors (including within the White House itself) to direct, collude with, and coerce social media platforms to censor posts, users, and viewpoints deemed a threat to the government’s agenda. This includes topics ranging from COVID-19 to the Hunter Biden laptop story to the 2020 election. It also includes speech that the government explicitly acknowledges to be true.
As one example, in an email exchange in March of 2021 between a Facebook executive and Rob Flaherty, White House director of digital media, Flaherty informed the Facebook executive: “We are gravely concerned that your service is one of the top drivers of vaccine hesitancy—period. … We want to know that you’re trying, we want to know how we can help, and we want to know that you’re not playing a shell game … this would all be a lot easier if you would just be straight with us.” In a clear attempt to appease the White House official, the Facebook executive replied about a week later, informing Flaherty that Facebook had made a number of policy changes, including the removal of “Groups, Pages and Accounts” containing, in the executive’s words, “often-true content” that “can be framed as sensation, alarmist, or shocking.” This is only one of dozens of similarly aggressive emails that Flaherty sent to Facebook, Google, and other social media companies—and Flaherty is just one of close to 100 federal officials who have taken similar efforts in their government capacities to suppress and censor those viewpoints, opinions, and reported experiences that conflict with the preferred message that the government wishes to propagate.
As noted above, until recently, the government conducted this censorship regime behind the scenes and unbeknownst to American citizens. Now that the curtain has been pulled back, the question is: how can the government possibly justify these unconstitutional maneuvers? And secondly: why is there no resounding demand from each and every American citizen that these violations immediately cease? The answer appears to lie, at least in part, in the mounting politicization of the First Amendment and the question of what speech should be free and what should be suppressed for the sake of “public safety and welfare.” Rather than an immutable right guaranteed to each American citizen to foster a “free marketplace of ideas,” speech is increasingly treated by the government as something dangerous that must be curated, filtered, and sometimes even suppressed before it reaches the eyes and ears of American citizens. Indeed, the government has never claimed to reject or abolish the First Amendment. Instead, it has launched a war against purported mis- and disinformation, which it claims must be suppressed, despite the First Amendment, in order to protect American citizens from supposedly harmful or dangerous ideas. Indeed, historically a fearful public is more willing to sacrifice certain freedoms in exchange for security. That is the tactic that the government employs today. As President Biden infamously put it, by failing to censor “misinformation” about the Covid vaccines, social media companies are effectively “killing people.” Similarly, stories of “true vaccine side effects,” have been, and continue to be, targeted and censored because such true speech “could fuel [vaccine] hesitancy.” In other words, it is the government’s view that Americans cannot be trusted with their own minds and must be protected like children from “misinformation” and “disinformation”—which is whatever the government defines it to be.
Embracing political polarization and the tribalistic zeal that defines modern American politics, the Biden administration has used this as a means of convincing those on the same end of the political spectrum that its censorship activities are not only constitutional, but beneficial. Regardless of political leanings, all Americans should discard this shortsighted view. “Censorship for thee and not for me” only works so long as the same political party remains in power, and it would be naïve to think that the target of governmental censorship will not shift and evolve as ruling parties and their political priorities cycle in and out.
Alas, as Justice Holmes put it: “[W]e should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.” The government, however, has arrogated to itself the mission of protecting Americans (who cannot be trusted to think on their own) from abstract ideas, such as falsity, harm, and injustice—a goal worthy only of the likes of a dictatorship. Indeed, Vladimir Putin described the Russian people as “backward” in justifying his centralization of power and control of the media.[1] It would be too dangerous to leave the “backward” citizens to their own devices and without governmental curation of the ideas to which they might be exposed…
The United States government was formed on the principle that it exists to protect the sovereign rights of each individual American citizen. It is being replaced by something else, something monstrous: an insidious leviathan that seeks not only to censor, but to control what ideas Americans might have in the first place. This is a danger beyond partisan bounds and which starkly demonstrates why the First Amendment is so crucial to the survival and proper functioning of this country. As constitutional law scholar Randy Barnett put it, the Constitution—the First Amendment included—is “the law that governs those who govern us.” If history is any indication, a government that is free to alter or circumvent the very laws that govern and constrain it is no more than a stone’s throw away from tyranny. According to Founding Father Samuel Adams, “If Virtue & Knowledge are diffused among the People, they will never be enslav’d. This is their great Security.” Let us hope that freedom of speech ultimately prevails.
[1] Steven Lee Myers, The New Tsar, at 261 (Vintage Books, 1st ed. 2015).