The Cocktail Party Contrarian: A Jewish Response to Murthy v. Biden

Arguing on behalf of the Biden administration before the Supreme Court last week in the Murthy v. Biden case, the principal deputy solicitor general at the Department of Justice, Brian Fletcher, defended the government’s efforts to censor Americans’ speech online. All Americans should be alarmed — not only that our government built a program of mass censorship using federal agencies, NGOs, and private companies, but that it is vigorously fighting to keep it operational. Yet Jewish Americans should be especially concerned: In his oral arguments, Mr. Fletcher used the Jewish community’s fight against antisemitism to help justify the state’s violation of the First Amendment. Pressed by Justice Clarence Thomas about disclosures that the administration regularly demanded that Facebook, Twitter, and Google remove posts that countered official narratives about Covid, elections, and the Biden family, Mr. Fletcher reframed the government’s coercion of social media to suppress speech as mere persuasion. “I’m saying that when the government persuades a private party not to distribute or promote someone else’s speech, that’s not censorship; that’s persuading a private party to do something that they’re lawfully entitled to do,” he claimed. He tried to distinguish between coercion and persuasion as though administration officials had not been openly threatening Section 232 regulation of social media companies while simultaneously contacting those same companies, almost daily, with requests to remove posts it didn’t like. Coercion doesn’t only occur with a bat in hand; it can happen with a wink and a nod, too.An example of such persuasion could be found in the December 2023 congressional hearing to which the presidents of Harvard University, the University of Pennsylvania, and MIT were called to testify about surging levels of antisemitism on their campuses, Mr. Fletcher told the court: “So, for example, you know, recently after the October 7th attacks in Israel, a number of public officials called on colleges and universities to do more about antisemitic hate speech on campus. I’m not sure and I doubt that the government could mandate those sorts of changes in enforcement or policy, but public officials can call for those changes.”Casting the administration’s “persuasion” model of proxy censorship as noble, Mr. Fletcher suggested that it is legitimate when practiced for a good cause: in this case, protecting the Jews from “hate speech.” His argument is dangerous and underscores why we need the First Amendment in the first place. The shameful testimony of the university presidents that day did not illustrate, as Mr. Fletcher would have us believe, that unchecked antisemitism on campus is the result of insufficient efforts to fight “hate speech” or that the remedy is government intervention to encourage more of that battle. What it showed is that the fight against “hate speech” is part of the problem itself. “Hate speech” is an imaginary category subjectively applied by those seeking uncontested power, and hypocritically policed by administrators and activists pursuing self-interest. The war on “hate speech” in academia has led to the targeting of those whose views, and identities, challenge establishment orthodoxy, Jews among them. It has produced actual instances of hate and very real civil rights abuses against Jewish students and many others, with little response by campus leaders.Mr. Fletcher knows this, but he cynically promotes the idea that the government’s right to speech control must be affirmed for such a time as this. He fails to note the other edge of the sword he is asking the Jewish community to help government authorities wield. All American Jews should meet his request with a hard, “No, not in our name.”If saving Jewish students from 20-year-olds on campus chanting about rivers and seas they can’t name is the government’s job, it is also its job to save Americans from data on Covid lockdowns, or reports about Hunter Biden’s laptop, or any number of the ideas the administration labeled “hate speech” or the similarly pernicious “disinformation.” According to this logic, it might also decide that its job is to save students on campus from a professor whose lecture on Israel is deemed “hateful” support for the “occupation.” Good causes are in the eyes of the beholder.What American Jews need for their own safety is less censorship, not more. Mr. Fletcher and the Biden administration should look elsewhere for useful fools if they hope to rally support around their speech suppression cause with empty promises of protection against antisemitism. And they should pray that at least five of the justices on the Supreme Court reject their arguments, because they will not be in power forever. The beneficiaries of their effort to increase government power may one day use that gift against them.

The Cocktail Party Contrarian: A Jewish Response to Murthy v. Biden

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