Two leading officials of the federal government—the press secretary and the surgeon general—have revealed the Biden administration’s plan to coordinate with social media platforms to censor dissident voices that disagree with the official position on COVID-19 and the efficacy of vaccines. This raises First Amendment concerns of the highest order.
At a recent press conference, Jen Psaki said, “We’re flagging problematic posts for Facebook that spread disinformation.” She went on to say that purveyors of “disinformation” must be suppressed and banned, not merely on Facebook but on all platforms. Her tone was as revealing as her content; Psaki seemed to discuss Facebook as if it were just another government agency.
Just a few decades ago, Psaki’s blithe advocacy for government-driven censorship would have brought a widespread roar of outrage, not just from public opinion but also from institutions such as the ACLU that had a reputation for being free speech “absolutists,” which is to say, for jealously guarding the outer precincts of free speech. Now, however, the ACLU has abandoned the free speech cause, and maintained dead silence over the Biden administration’s open assault on the First Amendment.
The first obvious issue, which an earlier ACLU leadership would have immediately highlighted, is what constitutes “disinformation” and who gets to define it. This by itself is problematic. Obviously, every government is going to take the position that its own views are entirely based on facts, and its critics are relying on faulty assumptions and misstatements.
Yet even if the critics were completely wrong on a given issue, that would simply make them purveyors of “misinformation.” Misinformation and disinformation are not the same. Disinformation is something far more insidious: It implies deliberate deception, as in the claim that foreign governments are using “disinformation” to manipulate political debate in America.
So why not combat misinformation with accurate information? Evidently, the Biden administration doesn’t believe that is sufficient. Either they believe that their information isn’t strong enough to overcome the misinformation, or they believe that many people will embrace the misinformation no matter how strong the evidence they provide.
Either way, there’s no good rationale here for the suppression of free speech. Now, I realize of course that the First Amendment applies only to the government, not to private entities. The First Amendment says “Congress shall make no law,” and the term Congress here is a stand-in for government more generally. With some very clearly defined exceptions, the government can’t make laws that restrict freedom of speech or of the press.
But what if the government, which is constitutionally prohibited from restricting speech, directs private corporations to carry out what the government itself is prohibited from doing? This is what’s at issue here, not direct government restriction but government collusion with private platforms to achieve the same result.
Think of it this way. The Constitution prohibits “unreasonable search and seizure.” What if the government, which cannot search your home or car without probable cause, hires private security agencies to do exactly that? The government can’t deny you the right to vote or due process of law or equal protection of the law, so what if it works in collusion with private groups to subvert those rights?
Obviously, these would be gross violations of the Constitution. The government is basically using private actors to perform a function that, if the government performed it, would flagrantly contravene the Constitution. Fortunately, the Supreme Court recognizes this. In a landmark 1973 case, Norwood v. Harrison, the Supreme Court held that government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.”
Once again, Ramaswamy and Rubenfeld note, courts have repeatedly ruled that when governments provide federal immunity to private parties, overriding state laws, this action can transform the private party’s conduct into state action that is subject to constitutional scrutiny. In a 1956 case, the Supreme Court held that agreements between employers and unions, both private entities, nevertheless constituted “state action” because Congress passed a law immunizing such agreements from liability under state law. A 1989 precedent, Skinner v. Railway Labor Executives Association, made exactly the same point.
The logic of these cases is hard to dispute. Imagine an extreme case in which the government pays social media companies millions of dollars to restrict, shadowban, and deplatform dissident voices that are nevertheless engaging in constitutionally protected speech. In other words, the speech may be “misinformation,” from the government’s point of view, but it is nevertheless legal. Would the government be allowed, under the First Amendment, to do that?
Obviously not. Nor should it be able to. It’s fascist governments that perfected the technique of making private companies do their bidding. The Nazis called this Gleichschaltung, a term that means “coordination.” The Nazi goal was to bring the entire private sector into lockstep with Nazi ideology, and in no area was this forced conformity more aggressively enforced than in the domain of free speech.
No one is saying the Biden administration is made up of Nazis; I’m merely saying that they are acting in a manner that in this respect resembles the Nazis when they first came to power. Of course all tyrannical regimes—from the former Soviet Union to China, Cuba, and Venezuela today—engage in similar forms of repression, and they do it using the same types of justification.
