Bipartisan Anxiety Over Free Speech Rights Spurs Push To Curb Executive Branch Censorship

The journalistic adage “we don’t report planes that land safely” means that what is deemed newsworthy often involves dysfunction and folly. Now, however, comes evidence that “good news” is not always an oxymoron. A judicial ruling has prompted two senators to prod the legislative branch to curtail certain executive branch mischief.A Texas Republican senator, Ted Cruz, is, figuratively speaking, to the right of the soup spoon. An Oregon Democrat, Senator Ron Wyden, is to the left of the salad fork. Their bipartisan anxiety concerns First Amendment speech rights.Their proposed legislation would inhibit government “jawboning,” defined (by Merriam-Webster) as “the use of public appeals (as by a president) to influence the actions especially of business and labor leaders.” The adjective “public” is underinclusive. One of the senators’ objectives is transparency about hitherto secret pressure.During the pandemic, executive branch officials in the Biden White House, FBI, and elsewhere frequently hectored social media platforms (YouTube, Facebook, Twitter) to adopt particular policies of “content moderation.” In plain language, censorship was the officials’ goal and, often, their achievement. During the 2020 presidential election, the platforms also, absent government pressure, censored speech about Hunter Biden’s laptop.The Biden administration thought that content on the platforms was promoting “vaccine hesitancy” and doubts about “social distancing” and shutdowns generally. The officials wanted to suppress theories about Covid-19’s origin (the lab-leak theory, now widely considered plausible). Two states and five individual social media users sued dozens of executive branch officials and agencies, seeking an injunction against them for pressuring the platforms to violate their speech rights by removing, obscuring or otherwise discriminating against their posts.In 2024, the Supreme Court struck down (6-3) an appellate court’s ruling that federal pressure caused the censorship and therefore transformed it into government action. Writing with characteristic precision and caution, Justice Amy Coney Barrett held that the court need not rule on the merits of the plaintiffs’ argument because the plaintiffs lacked standing to sue. They failed to establish a causal relation between what the government demanded and what the platforms did. The platforms, being private entities, can enforce whatever editorial policies they choose, and plaintiffs did not establish that government clearly coerced the platforms’ choices.Justice Samuel Alito, joined in dissent by Justices Clarence Thomas and Neil M. Gorsuch, said, correctly, that federal officials pursued a “covert scheme of censorship.” They “continuously harried,” “implicitly threatened” and “persistently hectored” the platforms with “virtual demands” backed by credible threats of punishment.Specifically, Justice Alito wrote, internet platforms are “far more vulnerable to government pressure than other news sources.” A president cannot put a hostile newspaper out of business. Yet social media companies “are critically dependent on the protection” provided by Section 230 of a 1996 statute that shields them from civil liability for content they disseminate. Government pressure included implicit but clear threats to repeal Section 230.It is proper, indeed a duty, for the executive branch to explain to the public its preferences. And explanation cannot be disentangled from advocacy. But as Justice Alito stressed, government officials who pressured Facebook were not speaking to the public. They were advancing a covert scheme using surreptitious demands revealed only later by plaintiffs’ discovery and a congressional committee’s subpoenas.Some executives of these platforms were ideologically disposed to obey the Biden administration. Others, when exposed to government pressure, had spines as limp as cooked linguine. Justice Alito tartly writes that Facebook representatives “whimpered” their promise to be more compliant.The Cruz-Wyden bill is a response to executive misbehavior, and to judicial judiciousness, that requires Congress to legislate. Their bill affirms the principle that the government may not do indirectly (e.g., censor speech) what it is forbidden to do directly. The bill:Would require government to make public certain kinds of communications with social media companies, artificial intelligence companies and broadcasters. And would establish that plaintiffs must prove only that government attempted censorship, not that its pressure by itself succeeded. And would provide for money damages, instead of mere injunctions, for plaintiffs when an offending official left office while a case wended its way through courts.So, crude and sneaky overreaching by the executive was followed by the Supreme Court’s austere (and reasonable) refusal to overreach by ignoring principles of standing. This has prompted two lawmakers to respond. If Congress makes that response a law, there will have been a minuet of actions and reactions driven by each branch’s prerogatives, responsibilities and incentives. The separation of powers will have functioned as intended.The governmental plane will have landed safely. Given recent history, that is newsworthy.The Washington Post

Bipartisan Anxiety Over Free Speech Rights Spurs Push To Curb Executive Branch Censorship

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