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Kamala Harris' Free Speech Task Force

Philip Hamburger
Chief Executive Officer

June 11, 2022

After the COVID ‘misinformation’ experience, will the vice president’s new plan for addressing online harassment go any better?

For most of its existence, I had avoided social media and held particular disdain for Twitter, which I saw as intrinsically anti-intellectual. So it was with some hesitation that I opened a Twitter account in the fall of 2020 following the publication of an article I wrote critiquing COVID lockdowns from my own left-wing perspective. The sight of friends eagerly acting as government informants, reporting their neighbors for sitting together in a park or for not wearing a mask outdoors, bore striking resemblance to my father’s stories of being a Palestinian immigrant under various authoritarian regimes in the Middle East. The article did well, and as my Twitter account gradually increased in size and influence over the next couple of years, so did the bizarre behavior it elicited from troubled men, including one who continually created new profiles to evade being blocked, and several who sent deranged, handwritten letters to my office.

For many women with large Twitter followings, using the platform entails not only incessant insults, but also an unrelenting stream of angry, threatening, and sexually explicit messages. Using the platform primarily to criticize U.S. government-imposed COVID restrictions and the unscientific approach of hysterical elites and experts compounds the gender-specific vitriol, an unpleasant new feature of my life for which I would eagerly welcome almost any realistic legal solution. Vice President Kamala Harris’ new “White House Task Force to Address Online Harassment and Abuse,” meant to help women, racial minorities, and LGBTQ individuals, clearly isn’t it. Neither government nor the tech companies themselves seem capable of regulating “harassment and abuse” without also curtailing the constitutionally protected speech intrinsic to a healthy democracy. In fact, the Biden administration’s unconstitutional policing of nongovernment approved viewpoints on COVID-related subjects has demonstrated with particular clarity that it cannot be trusted to determine what constitutes “harassment and abuse.”

At first blush, Harris’ new task force sounds like a laudable idea. Who wouldn’t want to spare members of marginalized groups—or anyone, for that matter—the anxiety and fear that accompany online harassment and abuse? But the concept, at least insofar as Harris has indicated she intends to implement it, is replete with troubling signs. For one, her announcement about the creation of the task force itself conflated threats of violence, cyberstalking, doxxing, and revenge porn—all serious types of misconduct and in many cases already criminally chargeable—with “harassment,” use of offensive language, and name-calling, all of which conceivably fall under First Amendment protected speech.

That conflation is not a mistake, as this is not the administration’s first foray into attempting to police online speech. In May of 2021, administration officials started to publicly demand that social media platforms, including Facebook and Twitter, censor COVID “misinformation” or else face consequences in the form of regulatory or other legal action. These threats escalated over the course of the following year, culminating in U.S. Surgeon General Vivek Murthy’s demand in March of 2022 that a broad array of tech companies, including e-commerce platforms and instant messaging systems, turn over the identity of purveyors of such “misinformation.” In April, the administration announced that it had formed a Disinformation Governance Board (DGB) within the Department of Homeland Security, designed to combat “misinformation” spread online about the election, the pandemic, and various other topics.

As the extent of the federal government’s entanglement in social media censorship came to light, attorneys filed lawsuits representing suspended Twitter and Facebook users; two state attorneys general sued on behalf of citizens of their states. The plaintiffs in these cases contended that the totality of the administration’s efforts violated the First Amendment, because government officials’ threats coerced the companies into silencing viewpoints with which the government disagreed. The lawsuits documented how Twitter often suspends those who make reasonable, scientifically substantiated criticisms that happen to diverge from the government’s messaging on masks, vaccines, and other COVID policies.

A well-known lockdown critic and cognitive theoretical scientist named Mark Changizi, for example, was suspended from Twitter in April of 2021 for linking to an article concluding that masks are “ineffective, harmful.” By contrast, individuals like Eric Feigl-Ding, a nutritionist who has misrepresented his credentials and tweeted very obvious lies in order to spread fear—such as that the omicron variant is more severe in children than adults—has never been censored. Similarly, Twitter did not censor the avalanche of tweets in 2021 wishing death and suffering upon the unvaccinated and advocating for withholding lifesaving health care—clearly more hateful and “dangerous” speech than sharing articles about how masks don’t curb viral spread. (Nevertheless, this author does not advocate censoring that speech, either.)

It didn’t go unnoticed that Twitter and other social media platforms started escalating suspensions for purveying “misinformation” about COVID right around the time the federal government started publicly threatening tech companies. Users like Changizi observed that they had been tweeting similar criticisms of mandates and lockdowns since March of 2020, but they never faced suspension until the spring of 2021. Pressure on Spotify and YouTube to disappear very old episodes of Joe Rogan’s podcast on spurious claims of “racism” abruptly appeared only after the administration targeted him for supposedly purveying COVID misinformation. There could hardly be a clearer case of government violating the First Amendment by attempting to suppress viewpoints that conflict with its policies.

So far, at least, attempts to challenge such censorship on First Amendment grounds have failed in lower courts. But the court of public opinion has been a different matter. After significant public outcry following the announcement of the dystopian DGB, the administration paused its rollout. Murthy’s initiative also generated significant criticism, likely prompting the emergence of a more conciliatory tone—pleading respect for differing views on COVID policy—mere weeks after he made his demand to tech companies. There are, of course, the midterms to consider.

Alex Berenson, one of the earliest and most notorious lockdown and mask critics, was recently reinstated on Twitter following a nearly yearlong suspension as part of a lawsuit settlement. Twitter had at least given the strong impression of suspending his account at the behest of the Biden administration: It did so only days after Dr. Anthony Fauci had personally castigated Berenson on television as a public health threat due to remarks he had made about the decision of many younger Americans not to receive a COVID vaccine, and only hours after President Joe Biden blamed social media companies for “killing people” because they were not censoring vaccine-related content. Berenson sued Twitter, as opposed to the government; his claims that survived the motion to dismiss involved Twitter’s contractual obligations to him, not constitutional claims. Still, Berenson’s reinstatement appears to be a victory against the administration’s attempts to facilitate social media censorship.

In a word, disregard of the principles underlying the First Amendment has been simultaneously ineffective at silencing dissent and politically harmful for the White House—even more so as the harm caused by school lockdowns and the minimal effect of COVID vaccines on transmission, for example, have quickly gone from “misinformation” to popular and empirical consensus. The administration’s approach, in fact, has only served to emphasize for many voters the wisdom behind the First Amendment: The government is often wrong, and the natural tendency of censorship is to lock in an ever narrower and more counterproductive echo chamber.

Every lesson we’ve learned from the administration’s approach to pandemic misinformation applies to the vice president’s new “online harassment and abuse” initiative. Consider, for example, the vigorous national debate surrounding participation of transwomen in women’s sports. Certain views on the subject—though they are held by many, if not the majority of Americans—have been deemed offensive and even hate speech, including that transwomen and women are not the same, and that the word “woman” should be used to denote individuals born with certain biological features, rather than an identity that can be acquired. Similarly, the administration has broadly endorsed the practice of prescribing hormones to and performing surgery on minors who purport to identify as a gender other than the one associated with their biological sex.

Though opinions within the scientific and medical communities remain divided on this issue, to say nothing of voters, the administration has made clear that it does not consider the issue open for debate. While it has the electoral legitimacy to take and advance its own position on the matter through 2024, the administration is not permitted to participate in censoring the views of those who disagree. Harris’ task force, which aims to suppress “offensive” views and “harassment,” may very well end up targeting those who have valid concerns about the administration’s approach to these issues.

Indeed, Twitter suspended the account of the Babylon Bee—a conservative satire news website—for “hateful conduct” after it mockingly named U.S. Assistant Secretary for Health Rachel Levine “Man of the Year.” While some may find the joke offensive, stupid, and in poor taste, it falls well within the boundaries of protected speech. The Biden administration’s track record of internet censorship thus far, however, indicates that it would likely consider such content to be “harassment and abuse.”

At the very least, the task force’s mandate—which involves policing online speech—will have what is known in First Amendment law as a chilling effect, similar to the demand on technology companies to identify sources of COVID misinformation. Critics of the government, aware that they have earned its ire, are reluctant to articulate certain views for fear of reprisal. In other words, even when the government doesn’t directly censor people or order social media companies to do so, the reasonable fear of suspension or expulsion for voicing dissent encourages silence. Courts have recognized in the past that such self-censorship is an injury in and of itself for First Amendment purposes.

Nor is this task force necessary. Existing state and federal criminal laws are available to address online abuse or harassment that qualifies as a crime. Legislators can criminalize conduct that is not currently legally actionable but which enough voters believe should be, provided it is not protected speech under the First Amendment. It is not the purview of the executive to take criminal justice into its own hands and circumvent the process by which we make our laws.

As a woman who has dealt with her fair share of discomfort and fear of harm from online interactions, I am nevertheless convinced that government involvement in this sphere will cause far more problems than it will solve. Because of my family background, the prospect of living in a country where government slowly hacks away at free speech rights and the separation of powers is more intrinsically frightening to me than the threat of psychologically and emotionally unstable men sending sexually explicit or hurtful messages. The former spells the end of a free society; the latter is the price you pay for having one.