The Disingenuousness of Government Censorship

The Supreme Court is hearing a case centered on, among other speech-related matters, whether the Federal government illegally—unconstitutionally—pressured social media companies to suppress or delete altogether posts of which the government disapproves regarding Wuhan Virus vaccines.

The government’s arguments in the case are telling.

US Solicitor General Elizabeth Prelogar…likened the government’s interactions with social-media companies to Ronald Reagan’s urging the media to help combat drug abuse, George W Bush’s inveighing against pornography, and Theodore Roosevelt’s denunciation of muckraking journalists.

This is one of the government’s disingenuousnesses. All of Reagan’s, Bush the Younger’s, and Roosevelt’s inveighing were publicly done. Us ordinary Americans knew what those Presidents were telling “the media” what they wanted them to do, and we knew it as soon as they spoke. The Biden administration, on the other hand, pressured today’s social media outlets behind the scenes, in secret. For instance,

When Hank Aaron died in 2021, Robert F Kennedy, Jr, suggested in a tweet that the baseball legend’s death was caused by a Covid vaccine.
The next day, a White House employee asked Twitter, now known as X, to take down Kennedy’s post. “Wondering if we can get moving on the process for having it removed ASAP,” the White House’s Covid-19 digital director wrote to two Twitter employees.
The social-media platform did so.

Here’s another of the Biden administration’s disingenuousnesses, if not an example of its outright cynicism, this one regarding the 5th Circuit’s ruling forbidding officials including the president’s counsel, press secretary, director of digital strategy, and other White House staffers from coercing, “significantly encouraging,” or supervising content moderation.

The Biden administration appealed that ruling to the Supreme Court. It warned that the restrictions would prevent the government from talking to tech companies about matters of national security and public safety, as well as urging them to protect teens from the harmful effects of social media.

Nonsense. The appellate court’s bar in no way prevented or prevents anyone in the Biden administration from talking to tech companies or anyone else about anything at all. Those officials just have to do it publicly—like those prior Presidents had done, and in the same vein those prior Presidents had—and they aren’t allowed to attempt to apply pressure to comply.

Prelogar does have an argument, of sorts.

The government is entitled to speak for itself by sharing information, urging action, and participating in debate over issues of great concern to the public[.]

Absolutely, the government is so allowed. However, government—in the present case, the Biden administration—is not speaking for itself when it moves to suppress the speech of others who disagree with the administration position.

Nor is the Biden administration “urging action” regarding the subject of a debate when it is urging suppression of views that run counter to the administration’s position.

Nor is the Biden administration participating in debate over issues of great concern to the public when it acts to suppress the speech of others, which also is of concern to the public, thereby barring the public from participating in what the Biden administration wants to be a one-sided debate.

The Biden administration should exercise its “entitlement” to speak for itself by answering disagreeing comments in the commentary with its own—public—comments saying why those disagreeing comments seem erroneous; asserting what the administration believes to be accurate information; and explaining in concrete, measurable terms why it believes its own claims to be the more accurate.

There are no alternatives in a nation that believes free speech to be a fundamental right intrinsic in each of us citizens.

Further Reasons to Ban TikTok

And not just force its sale by ByteDance. ByteDance is domiciled in the People’s Republic of China, and as such it’s subject to PRC laws, including the PRC’s national security law requiring PRC companies to answer queries from that nation’s intelligence community, queries which can range from “what do you know about this subject in that country” to “go find out, conduct the espionage.” That’s reason enough to ban the company (that subordination of PRC-domiciled companies to that nation’s intelligence apparatus is reason enough to ban all PRC-domiciled companies from the US, but that’s a different story).

Another reason to ban TikTok stems from this claim made by the company in response to the House Energy and Commerce Committee’s unanimous vote (that’s 50 (of 52 Committee members; 2 weren’t present to vote) Representatives of both parties agreeing on something) to advance legislation that would require TikTok to be sold by ByteDance to a non-PRC affiliated company or be barred from operating in the US. That claim by an anonymous spokesman for TikTok:

This legislation has a predetermined outcome: a total ban of TikTok in the United States. The government is attempting to strip 170 million Americans of their Constitutional right to free expression.

That’s a lie on two fronts, explicitly intended to create hysteria. The first front is the business about “total ban.” It is no such thing, and TikTok managers—and their ByteDance owners—know full well: that claim cynically ignores the primary option the legislation offers, the sale of TikTok to an acceptable, non-PRC affiliated buyer.

The second front is that business about stripping TikTok users of their Constitutional right to free expression. Of course, it’s no such thing, as those TikTok and ByteDance persons also know full well. Were ByteDance to refuse to sell and TikTok barred, no one’s free speech would be stripped away, only a single pipeline would be stripped away. All of TikTok’s users, every single one of them, would have access to any and all of a plethora of other pipelines through which to speak, pipelines like Facebook YouTube, Gab, Truth Social, CloutHub, GETTR, MeWe, LinkedIn, Parler, X, and on and on. Further, were TikTok to be sold, that question would never even arise since the TikTok pipeline would be free to continue operating.

Additionally, the ability of this PRC company to mobilize all of its members to manipulate an American internal political matter demonstrates the influence the PRC is able to exert on American domestic politics.

As lawmakers prepared to consider the legislation on Thursday, users of the app…saw notifications urging them to complain to their House representative about the bill. Then the app let people call their representative with a few presses of buttons, fueling congressional concerns about TikTok.
TikTok’s campaign quickly overwhelmed the phone lines of some congressional offices…illustrated how TikTok could mobilize an army of people and gather data to push user behavior, which some lawmakers say is the exact reason they don’t want the company to have ties back to [the PRC].

That PRC manipulation by itself is yet another to ban TikTok altogether.

Religious Persecution

Finland Member of Parliament Päivi Räsänen and Lutheran Bishop Juhana Pohjola stood (still stand?) accused by Finnish prosecutor Anu Mantila of the heinous hate speech crime of quoting from the Bible.

Finnish district courts said, no, and acquitted the two. The prosecutor objected and took the cases to a Finnish appellate court—where the two were once again acquitted. Räsänen:

It isn’t a crime to tweet a Bible verse, or to engage in public discourse with a Christian perspective. The attempts made to prosecute me for expressing my beliefs have resulted in an immensely trying four years, but my hope is that the result will stand as a key precedent to protect the human right to free speech.

Mantila’s weasel-worded rationalization of her decisions:

You can cite the Bible, but it is Räsänen’s interpretation and opinion about the Bible verses that are criminal[.]

Well, no, they’re not, not within any universally recognized concept of free speech and opinion-uttering.

Mantila may well appeal again, to the Supreme Court of Finland. If she does, the case will cease to be a matter of prosecution (if it ever was); it will be naked religious persecution and a parallel direct attack on the principles underlying free speech.

Massie is Disappointing

The House of Representatives passed a resolution condemning antisemitism on college campuses by a vote of 396-23.

A single Republican—Congressman Thomas Massie (R, KY)—was one of the 23 voting against the resolution. He posted his rationalization on X:

Free speech means protecting speech you don’t like, not just speech you do like.
Also, who defines antisemitism?

This is a mindless quibble. The resolution did not ban any speech, or much less antisemitic speech, however antisemitism might be defined or by whom; it only decried it. Which is itself an exercise in free speech.

Worse, quibbles of this nature—and Massie knows better; as a talented and successful politician, words are his stock in trade—are dangerous, diluting as they do the serious nature of free speech, including the free speech right to speak against others’ speech, and including applying consequences to others that don’t prevent them from continuing to speak. Even if those others don’t like it.

The 9th Circuit Got This One Right

A recent Wall Street Journal opinion concerned the question of when, or whether, a political figure who creates a personal social media account(s) can bar members of the public from interacting with those accounts. In

Michelle O’Connor-Ratcliff and TJ Zane, elected school board members in California, used personal Facebook and Twitter accounts they created while running for office to campaign and inform constituents about education news. The officials blocked two parents for making “repetitious and non-responsive comments” on their pages.

In O‘Connor-Ratcliff v Garnier, the 9th Circuit said the two board members could not do that.

The panel held that, under the circumstances presented here, the Trustees acted under color of state law by using their social media pages as public fora in carrying out their official duties. The panel further held that, applying First Amendment public forum criteria, the restrictions imposed on the plaintiffs’ expression were not appropriately tailored to serve a significant governmental interest and so were invalid.

And

The protections of the First Amendment apply no less to the “vast democratic forums of the Internet” than they do to the bulletin boards or town halls of the corporeal world. … When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment enters with them.

The editors generally disagreed with this ruling, and they closed their piece with this bit.

Americans have many platforms to criticize public officials without invading their personal social-media pages.

That’s plainly true. So, too, is the related: elected politicians (the editors seem to have subsumed—erroneously—unelected bureaucrats into the term “public officials,” whereas the court’s ruling plainly concerned only elected officials) have many platforms with which to describe, and to interact with their constituents regarding, their political and official doings without using their so-called personal accounts to do so and then limiting their constituents’, and the public-at-large’s, ability to respond and to petition [them], whether courteously or rudely.

I’ll go one farther than did the 9th. It’s not possible for an elected government official to have a personal social media account. An elected official represents his constituents at all times of the day and night, every day and night of every year he holds office, for all that as a practical matter, he takes time away from his duties to rest and recreate. From that, it’s impossible for him to have a non-public social media account so long as he holds elected office.

The 9th got this one right.

The Circuit Court’s ruling can be read here.