This Was No Free Speech Victory

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The single most important cultural change of the last 10 years is not transgenderism, Black Lives Matter, or even social media. It’s the end of free speech. Just a few years ago, it was almost beyond imagination that American companies would restrict free speech, with Amazon taking a principled stand in defense of even the vilest content. Today, books are regularly deplatformed, including Jared Taylor’s White Identity. Social media censorship is even worse and financial deplatforming has reached unknown depths.

Still, some might say that’s alright because these are actions by private companies. Many would expect Americans to rise in defiance if the government were telling people what they can and cannot say. Yet this line too was crossed. It was under the Trump Administration that the federal government — specifically the Department of Homeland Security — began working with social media to censor dissidents. President Donald Trump himself did nothing about the problem except for a nonsensical “Social Media Summit” featuring no one who was actually deplatformed. He is still doing nothing except posting on his echo chamber on Truth Social, despite regaining access to his Twitter/X account.

Some Republicans have begun fighting back now that the Democrats are in charge, especially after the government excesses during the COVID-19 pandemic. This too was too little, too late; conservatives ignored or even quietly welcomed the arbitrary decisions by Big Tech to wipe out entire groups, subcultures, and movements from platforms. That said, some are now moved to action.

It paid off when a federal judge ruled that the federal government could no longer work with tech companies to censor Americans. The decision baffled and outraged journalists, our country’s most dangerous free speech opponents. The Biden Administration appealed and got the injunction lifted, but appears to have lost the appeal in Missouri v. Biden.

The key word is “appears.” Reason, the New York Times, and the Wall Street Journal all suggested this was a defeat for the Administration. The WSJ called it a “landmark” and said the decision “protects free speech from the government’s current method of laundering its censorship through private platforms.” The Washington Examiner flatly says the previous ruling was “upheld.” Missouri Attorney General Andrew Bailey declared victory and said “the first brick was laid in the wall of separation between tech and state.” Hardly.

The new ruling rolls back the restrictions imposed by the initial ruling, which banned the government even from communicating with tech companies about content. The Appeals Court argued that the injunction had banned the government from engaging in legal conduct, pointing out that the state sometimes needs to work with private companies. Not in this case. The government should be able to issue a statement on social media and have it be recognized as “official,” but it crosses the line when it tells social media what it should censor. What’s more, solid restrictions are necessary because private companies have abandoned their commitments to free speech. They seem to want an excuse to censor..

Here is the appearance of a victory:

“A group of federal officials has been in regular contact with nearly every major American social-media company about the spread of ‘misinformation’ on their platforms,” the court said. “In their concern, those officials — hailing from the White House, the CDC, the FBI, and a few other agencies — urged the platforms to remove disfavored content and accounts from their sites. And, the platforms seemingly complied. They gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed users. The platforms also changed their internal policies to capture more flagged content and sent steady reports on their moderation activities to the officials. That went on through the COVID-19 pandemic, the 2022 congressional election, and continues to this day.”

The court listed many examples of careful coordination between the FBI, CDC, and other agencies with social media, noting that “the platforms were apparently eager to stay in the officials’ good graces.”

The court also explained why we have free speech. Censorship prevents the government from listening to its own citizens and thus harms states. “A government cannot abridge free speech,” the court says plainly, though it also says “a private party” bears “no such burden.” According to the “close nexus” test, there is a problem when the government uses “coercion and significant encouragement” to urge restricting speech. In fact, either satisfies the test. The court says, accurately, that “it is rare that coercion is so black and white” and the issues are often “complex and sprawling.”

Yet the court applies a relatively strict standard. It defined “encouragement” as a government actor exercising “active, meaningful control over the private party’s decision” and coercion as using “threats or otherwise, intimating that some form of punishment will follow a failure to comply.”

The court found some clear examples of this: “[O]fficials threw out the prospect of legal reforms and enforcement actions while subtly insinuating it would be in the platforms’ best interests to comply.” Censorship, said one bureaucrat, is “one of the easy, low-bar things you guys [can] do to make people like me [White House officials] think you’re taking action.”

The court was scathing about the Biden Administration’s conduct. “Officials made explicit threats and, at the very least, leaned into the inherent authority of the President’s office,” and made “inflammatory accusations,” charging that platforms were “killing people.” The court ruled that this was not just persuasion, but coercion. The FBI was “coercive.” The White House and what has become the nation’s de facto political police threatened and intimidated private actors into censorship.

However, it wasn’t so “black and white” for other groups. The CDC evidently was not “coercive,” though it did “significantly encourage” changes in moderation. The National Institute of Allergy and Infectious Diseases (NIAID), Cybersecurity and Infrastructure Security Agency (CISA), and State Department didn’t coerce or significantly encourage, according to the court. Director Anthony Fauci’s statements were simply “quintessential examples of government speech that do not run afoul of the First Amendment.” Thus, even though the court defended the previous ruling that government officials “had the intended result of suppressing millions of protected free speech postings by American citizens,” it restricted the larger injunction in the interests of protecting the government’s right to free speech.

On the surface, this makes sense. The government can’t simply not communicate with social media companies. It would be like saying the government can’t ask the networks for airtime for the president to brief the nation on a crisis. Nonetheless, the court seemed blind to the importance of its own finding that the government really had inflicted an “irreparable injury on plaintiffs.” The court said that people should be skeptical that the government had stopped its abusive behavior, but its measures to prevent further abuses were tame.

The appeals court actually vacated nine of the 10 parts of the previous injunction; it removed the solid barriers preventing the government from complaining to social media about content. The remaining one was modified so that the government can’t “coerce or significantly encourage a platform’s content-moderation decisions.” This means no “threats of adverse consequences,” including unstated threats that remain obvious because of context. There must be no direct supervision of content moderation. That’s all very well, but it abolishes only the most direct and obvious threats. Any halfway competent bureaucrat will get around that.

What has been gained? The White House, FBI, Surgeon General, and CDC were found culpable, but they got away with it and will go unpunished. There are new restrictions on the government hectoring, but unless officials threaten like gangsters, they will still be able to get their way. The government can regulate social media, award contracts, and use power to reward or punish any of these businesses and their leaders (such as Elon Musk). They can still once again directly communicate with these companies, so long as they do it cleverly. The government gave censors a yawning escape clause.

It’s like what happened with affirmative action. The government ended it in theory, but in practice it left a way for colleges to continue to discriminate against whites by scrapping objective admissions criteria and highlighting ideological, political, and unstated racial tests. Universities want to discriminate against whites, and the Supreme Court didn’t stop them.

Here too, the court found that the government violated our most fundamental rights, but did little to stop it. Instead, it warned the government not to leave such obvious fingerprints at the crime scene. And, of course, it did nothing to keep social media themselves from imposing their views on the nation and wiping out all dissent. It’s a miserable failure. Perhaps we shouldn’t be surprised that conservatives are busy congratulating themselves.