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It’s Not Coercion Until They Break Your Will

Zhonette Brown
General Counsel and Senior Litigation Counsel

June 2, 2023

The government recently had an opportunity to attempt to convince a federal court why efforts to abridge United States citizens’ disfavored political speech are consistent with the First Amendment. As explained in NCLA’s Missouri v. Biden case, ever since 2016, the federal government has become more interested in monitoring and managing what circulates on social media. With the excuse of Covid-19 and staring down the barrel of a mid-term election, federal officers kicked their curating of information into high gear in 2021. After and sometimes linked with threats of antitrust enforcement or calls to remove the legal immunities otherwise available to social media platforms, members of the White House, the National Institute of Allergy and Infectious Diseases (Fauci’s prior agency), the CDC, the FBI, the Department of Homeland Security, the Cybersecurity and Infrastructure Agency, and various other “health and safety” agencies made demands or “suggestions” to social media companies of specific posts, specific authors, or specific viewpoints that they should not host.

Defending its conduct, the government argued that it is free to use its “bully pulpit,” that it is the business of government to favor specific viewpoints, and that until it actually “breaks the will” of a social media company, the government cannot be held responsible for whatever actions result. Generally, First Amendment cases hold the government responsible for censorship actions committed by third parties when the government has coerced the action. The government argued that because the social media companies had not completely capitulated and censored every single post as soon as the government demanded, the social media companies exercised their own choices. The government then argued that because it had not broken the will of Facebook, Google, Twitter, etc., it had not violated the First Amendment.

Stated another way, the government, OUR United States government, argued that until the agencies that make up the Administrative State break your will, your actions are your own. Imagine this in a Fourth Amendment search and seizure setting – until the government “breaks your will,” whatever “consent” you give for a search is sufficient. Or in the Fifth Amendment setting – until the government “breaks your will,” whatever “confession” you utter is admissible. Rational risk/reward calculations would be irrelevant, you may choose to allow a search of your home or you may allow it to be burned down, but according to the government, you still exercised your “will.” Take heart, however, because that is not the law. Neither permission for a search nor a confession is valid unless it is voluntary. Involuntary conduct does not require that your will be broken. And while the Court has yet to rule in Missouri v. Biden, NCLA is optimistic that the court will find culpable government conduct short of the government “knee-capping” the social media companies.

Time will tell how history (and the courts) judge the government’s actions. Certainly, our founders did not view opinions with which they disagreed (now labeled “disinformation”) as a “threat to democracy,” as our current government and the progressive academy do. Rather, they viewed Freedom of Speech and Freedom of the Press as a bulwark of democracy, a means to the end of finding Truth. So, we will keep up the fight.  Indeed, just last week NCLA brought another First Amendment case against the government for censorship of harms caused by the Covid-19 vaccines. While we wait for court action or other course corrections, be vigilant, and rest assured that what appears to be “popular” political opinion on social media is not an accurate reflection of our society; it is an image, curated in part, by the government, and for its own ends.