{"id":179774,"date":"2021-02-22T12:02:02","date_gmt":"2021-02-22T12:02:02","guid":{"rendered":"https:\/\/www.transcend.org\/tms\/?p=179774"},"modified":"2021-02-21T05:39:47","modified_gmt":"2021-02-21T05:39:47","slug":"us-congress-escalates-pressure-on-media-tech-giants-to-censor-more-threatening-the-first-amendment","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2021\/02\/us-congress-escalates-pressure-on-media-tech-giants-to-censor-more-threatening-the-first-amendment\/","title":{"rendered":"US Congress Escalates Pressure on Media Tech Giants to Censor More, Threatening the First Amendment"},"content":{"rendered":"
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In their zeal for control over online speech, House Democrats are getting closer and closer to the constitutional line, if they have not already crossed it.<\/em><\/p>\n<\/blockquote>\n

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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 via Getty Images)<\/p><\/div>\n

20 Feb 2021 – <\/em>For the third time<\/strong> in less than<\/a> five months<\/a>, 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 Twitter\u2019s Jack Dorsey, Facebooks\u2019s Mark Zuckerberg and Google\u2019s Sundar Pichai at a hearing which the Committee announced<\/a> will focus \u201con misinformation and disinformation plaguing online platforms.\u201d<\/p>\n

The Committee\u2019s 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 \u201cfalsehoods about the COVID-19 vaccine\u201d and \u201cdebunked claims of election fraud.\u201d They argued that \u201cthese online platforms have allowed misinformation to spread, intensifying national crises with real-life, grim consequences for public health and safety,\u201d adding: \u201cThis hearing will continue the Committee\u2019s work of holding online platforms accountable for the growing rise of misinformation and disinformation.\u201d<\/p>\n

House Democrats have made no secret of their ultimate goal with this hearing: to exert control over the content on these online platforms. \u201cIndustry self-regulation has failed,\u201d they said, and therefore \u201cwe must begin the work of changing incentives driving social media companies to allow and even promote misinformation and disinformation.\u201d 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.<\/p>\n

I\u2019ve written<\/a> and spoken<\/a> at length<\/a> 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.<\/p>\n

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<\/em>. 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.<\/p>\n

It may not be easy to draw where the precise line is \u2014 to know exactly when Congress has crossed from merely expressing concerns into unconstitutional regulation of speech through its influence over private companies \u2014 but there is no question that the First Amendment does not permit indirect censorship through regulatory and legal threats.<\/p>\n

Ben Wizner, Director of the ACLU\u2019s 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:<\/p>\n

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\u00a0behalf.<\/p><\/blockquote>\n

In a January Wall Street Journal<\/a><\/em> op-ed<\/a>, tech entrepreneur Vivek Ramaswamy and Yale Law School\u2019s constitutional scholar Jed Rubenfeld warned that Congress is rapidly approaching this constitutional boundary if it has not already transgressed it. \u201cUsing a combination of statutory inducements and regulatory threats,\u201d the duo wrote, \u201cCongress has co-opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution.\u201d<\/p>\n

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\u00a0<\/em>(1973), for instance, the Court declared it \u201caxiomatic\u201d \u2014 a basic legal principle \u2014 that Congress \u201cmay not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.\u201d They noted: \u201cFor more than half a century courts have held that governmental threats can turn private conduct into state action.\u201d<\/p>\n

In 2018, the ACLU successfully<\/a> defended<\/a> 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 \u2014 driven by Cuomo\u2019s contempt for the NRA\u2019s political views \u2014 amounted to a violation of the First Amendment. Because, argued the ACLU<\/a>, the communications of Cuomo\u2019s aides to banks and insurance firms \u201ccould reasonably be interpreted as a threat of retaliatory enforcement against firms that do not sever ties with gun promotion groups,\u201d that conduct ran afoul of the well-established principle \u201cthat the government may violate the First Amendment through \u2018action that falls short of a direct prohibition against speech,\u2019 including by retaliation or threats of retaliation against speakers.\u201d In sum, argued the civil liberties group in reasoning accepted by the court:<\/p>\n

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.<\/p><\/blockquote>\n

In explaining its rationale for defending the NRA, the ACLU described<\/a> how easily these same state powers could be abused by a Republican governor against liberal activist groups \u2014 for instance, by threatening banks to cease providing services to Planned Parenthood or LGBT advocacy groups. When the judge rejected<\/a> Cuomo\u2019s motion to dismiss the NRA\u2019s lawsuit, Reuters<\/em> explained the key lesson in its headline:<\/p>\n

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Perhaps the ruling most relevant to current controversies occurred in the 1963 Supreme Court case Bantam Books v. Sullivan<\/a>. <\/em>In the name of combatting the \u201cobscene, indecent and impure,\u201d the Rhode Island legislature instituted a commission to notify bookstores when they determined a book or magazine to be \u201cobjectionable,\u201d and requested their \u201ccooperation\u201d 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<\/em> to censor. Instead, they ceased selling the flagged books \u201cvoluntarily\u201d due to fear of the threats implicit in the \u201cadvisory\u201d notices received from the state.<\/p>\n

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 \u201cdoes not regulate or suppress obscenity, but simply exhorts booksellers and advises them of their legal rights.\u201d<\/p>\n

In rejecting that disingenuous claim, the Supreme Court conceded that \u201cit is true that [plaintiffs\u2019] books have not been seized or banned by the State, and that no one has been prosecuted for their possession or sale.\u201d Nonetheless, the Court emphasized that Rhode Island\u2019s legislature \u2014 just like these House Democrats summoning tech executives \u2014 had been explicitly clear that their goal was the suppression of speech they disliked: \u201cthe Commission deliberately set about to achieve the suppression of publications deemed \u2018objectionable,\u2019 and succeeded in its aim.\u201d 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:<\/p>\n

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 distributor\u2019s] 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\u00a0ex proprio vigore [by its own force].<\/em>\u00a0It 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.<\/p><\/blockquote>\n

In sum, concluded the Bantam Books<\/em> Court: \u201ctheir 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.”<\/p>\n

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Little effort is required<\/strong> to see that Democrats, now in control of the Congress and the White House, are engaged in a scheme of speech control virtually indistinguishable from those long held unconstitutional by decades of First Amendment jurisprudence. That Democrats are seeking to use their control of state power to coerce and intimidate private tech companies to censor \u2014 and indeed have already succeeded in doing so \u2014 is hardly subject to reasonable debate. They are saying explicitly that this is what they are doing.<\/p>\n

Because \u201cbig tech has failed to acknowledge the role they\u2019ve played in fomenting and elevating blatantly false information to its online audiences,\u201d said the Committee Chairs again summoning the social media companies, \u201cwe must begin the work of changing incentives driving social media companies to allow and even promote misinformation and disinformation.\u201d<\/p>\n

The Washington Post<\/em>, in reporting<\/a> on this latest hearing, said<\/a> the Committee intends to \u201ctake fresh aim at the tech giants for failing to crack down on dangerous political falsehoods and disinformation about the\u00a0coronavirus.\u201d And lurking behind these calls for more speech policing are pending processes that could result in serious punishment for these companies, including possible antitrust actions and the rescission of Section 230 immunity from liability.<\/p>\n

This dynamic has become so common that Democrats now openly pressure Silicon Valley companies to censor content they dislike. In the immediate aftermath of the January 6 Capitol riot, when it was falsely claimed that Parler was the key online venue for the riot\u2019s planning \u2014 Facebook, Google\u2019s YouTube and Facebook\u2019s Instagram were all more significant<\/a> \u2014 two of the most prominent Democratic House members, Rep. Alexandria Ocasio-Cortez<\/a> (D-NY) and Rep. Ro Khanna<\/a> (D-CA), used their large social media platforms to insist that Silicon Valley monopolies remove Parler from their app stores and hosting services:<\/p>\n

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Within twenty-four hours, all three Silicon Valley companies complied with these \u201crequests,\u201d and took the extraordinary step<\/a> of effectively removing Parler \u2014 at the time the most-downloaded app on the Apple Store \u2014 from the internet. We will likely never know what precise role those tweets and other pressure from liberal politicians and journalists played in their decisions, but what is clear is that Democrats are more than willing to use their power and platforms to issue instructions to Silicon Valley about what they should and should not permit to be heard.<\/p>\n

Leading liberal activists and some powerful Democratic politicians, such as then-presidential-candidate Kamala Harris, had long demanded<\/a> former President Donald Trump\u2019s removal from social media. After the Democrats won the White House \u2014 indeed, the day after<\/em> Democrats secured control of both houses of Congress with two wins in the Georgia Senate run-offs \u2014 Twitter, Facebook and other online platforms banned Trump, citing the Capitol riot as the pretext.<\/p>\n

While Democrats cheered, numerous leaders around the world, including many with no affection for Trump, warned<\/a> of how dangerous this move was. Long-time close aide of the Clintons, Jennifer Palmieri, posted a viral tweet<\/a> candidly acknowledging \u2014 and clearly celebrating \u2014 why this censorship occurred. With Democrats now in control of the Congressional committees and Executive Branch agencies that regulate Silicon Valley, these companies concluded it was in their best interest to censor the internet in accordance with the commands and wishes of the party that now wields power in Washington:<\/p>\n

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It has not escaped my attention that the day social media companies decided there actually IS more they could do to police Trump\u2019s destructive behavior was the same day they learned Democrats would chair all the congressional committees that oversee them.<\/p>\n

— Jennifer Palmieri (@jmpalmieri) January 7, 2021<\/a><\/p><\/blockquote>\n