Monthly Archives: June 2022

Student protesters on the campus of the University of Virginia in August 2018. (Win McNamee / Getty Images)

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The nearly 650 comments on the Young Americas Foundations April 6 tweet are laced with venom. The post is a video of Lukas Tucker, a first-year student at the University of North CarolinaGreensboro (UNCG) who filmed a peacekeeping message to the university community ahead of Ben Shapiros visit to campus.

This is an illness.

Another fatherless child.

Freak.

Shapiro was invited by UNCGs chapter of Young Americans for Freedom (YAF), an affiliate of the Young Americas Foundation, after the group faced backlash for posting a transphobic Shapiro quote on their social media. In his video, Tucker, who is transgender, warns that engaging with YAF could do more harm than goodIt creates an us vs. them narrative that puts the Young Americans for Freedom against transgender people, he explains. It also validates their opinions and gives them a platform in which they can spread transphobic nonsense.

While Tucker brushes off the comments as hilariousmost attempt to insult him while using his pronouns, and one points to his receding hairline as evidencesome from his current and former classmates cut deep. I read all of them, he says, with a hint of solemnity.

Many of the comments blame Tuckers identity on his education, reflecting the national microscope on inclusive and historically accurate education in public schools. They are sick for teaching this to children, one commenter wrote. Another: What the hell is going on in our schools. And in a blanket condemnation, This is why not only should you NOT send your kids to public schools, but you should NOT allow your children to go to these private colleges! Current Issue

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Despite his call for civility, Tucker faces unrelenting online harassment for his identityand hes not alone. Across the country, students from marginalized backgrounds describe the impact of unfettered hate speech, misinformation, and unrecognized privilege in education on their mental health and physical safety. To these students, the national conversation about free speech on campus requires serious reframing.

In March 2022, University of Virginia senior Emma Camps viral New York Times op-ed put a spotlight on the dialogue surrounding free speech on college campuses. Camp, who is white and identifies as liberal, argued that she often felt that her classmates held back from expressing their political and moral views out of fear of cancellation.

Camp describes situations in which she and her classmates faced social backlash for speaking their minds about topics ranging from the newest Marvel movie to abandoned cultural practices. She argues that there is a difference between criticism and public shaming and the culture at American colleges and universities is shifting towards the latter.

Ria Sardesai, a fellow senior at UVA who penned an op-ed in The Cavalier Daily responding to Camps article, countered that students like herself and Camp are having different conversations when it comes to free speech on their campus.

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In [Camps] piece, all of the students involved were very outspoken, but their opinions were dissented [from] by their peersisnt that the very nature of debate? Sardesai wrote. Free speech is that youre allowed tovoice your opinion, and you wont get legally punished for ityoure not free from consequence, she adds.

She articulates a key difference between her experience and that of her white peers: there is a pattern of disrespect and endangerment of students from marginalized backgrounds that speak out at UVA that extends beyond the classroom. This mirrors a national trenda 2020 study by Gallup and the Knight Foundation found that an overwhelming majority of students prioritize free speech on campus, but women and minorities were less likely to feel like the First Amendment protects people like themselves, and more likely to say comments they have heard made them feel uncomfortable or unsafe.

Alexia Hernandez knows firsthand how conversations around free speech can escalate into online harassment and censorshipshuttering significant avenues of student expression. Hernandez is a community organizer and senior at Texas A&M University, the largest university in the United States by enrollment and number three on the Foundation for Individual Rights in Education (FIRE)s list of best colleges for free speech. In the summer of 2020, an anonymous individual intensely stalked Hernandez online and compiled her information on the universitys public sports forum TexAgs. The stalker posted screenshots of her social media profiles and photos of Hernandez with her former employershe also began to receive harassing messages on Twitter.Since then, shes had to lock down her online presence and understand that all student activists that engage with [accountability for discrimination or hatred] are being watched.

After only a few months on campus, Ritwik Tati had his first taste of right-wing cancellation. The first-year student at Stanford University was the subject of a Twitter thread by the Stanford College Republicans (SCR) that criticized his role in protesting Vice President Mike Pences visit to the university and posted a photo of his profile. Tati says this wasnt an isolated incidentSCR frequently targets students online who disagree with themand he connected with a Stanford administrator whom he describes as Executive Director, Threat Assessment, aiding students that face personal attacks. Despite this institutional support, Tati feels as though Stanford doesnt draw a clear line between free speech and harassment or hate speech.

Youre not supposed to be able to [allow a platform for] hate speech, because hate speech is dangerous to people on campus, Tati says, in reference to Pences visit to campus and SCRs public backlash against the counterprotesters. It [normalizes] violence against those marginalized groups in the future.

Dr. Sigal Ben-Porath, a professor in the Graduate School of Education at the University of Pennsylvania, says this is a uniquely American phenomenon. The biggest difference between the US and other democratic countries is that hate speech is protected in the United States, Ben-Porath says. The fact that hate speech is permissible and protected here really creates a different type of legally permissible dialogue.

In 2017, Ben-Porath published the book Free Speech on Campus, which analyzes modern debates surrounding expression on college campuses and provides recommendations for nurturing an open exchange of ideas while guaranteeing the safety of minority students.

We have to pay some attention to the concerns being raised by marginalized communities as we are thinking about the practices that can support a culture of open expression, she remarks.

On her Twitter profile, Hernandezs name is followed by a simple call to action: #SavetheBatt. She says the hashtag references the moment when she realized that administrators and alumni were intent on stifling open dialogue on her campus.

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In February 2022, new Texas A&M President Katherine Banks had administrators inform student leaders at The Battalion, a student-run campus news source, that they must immediately cease printing physical copies of the publication and transition from their status as a student organization to a program under the Department of Journalism, or risk losing their office space and faculty adviser. The decision, which Hernandez says sent a shock wave through the community, came with no warning or discussion with anyone involved with the publication. She adds that the student newspaper has been known to publish pieces that have been critical of university administrators, or unsavory to donors.

A few weeks after the abrupt decision to move The Battalion online, the newspaper published an investigative deep-dive into the Rudder Association, a nonprofit created by conservative Texas A&M alumni to exert influence on administrative decisions. Meeting minutes reveal that members of the organization met with the universitys president and members of the A&M systems Board of Regents to discuss a number of goals, including get[ting] conservative speakers signed up for as many speaker slots as possible in order to minimize slots for liberal speakers on campus.

Hernandez explains that the oversized presence of alumni on Texas A&Ms campus is nothing new, but its frustrating that [alumni] take advantage of the political climate and the culture of Texas A&M toharm the interests of current students.

Sardesai knows this story well. She explains that alumni influence plays a large role in shaping administrative influence on UVA and the greater Charlottesville community. In recent years, Sardesai says, many alumni advocated against renaming Alderman Library, which is dedicated to a former UVA president who was a notorious eugenicist. Reflecting on the power dynamic between willing donors and students strapped for cash, Sardesai says, They hold way more power, because they are providing a lot of money in terms of donationswe are required to pay tuition.

James Wilson, in his first year at GSU, says coverage of the conversation about free speech is lopsided, favoring white, conservative views. He predicts that the movement against critical race theory, diversity, equity, and inclusion is really going to put an importance on people going to college because their high school and middle school education will be censoreduniversities will be the first time many students have a serious conversation about race in the classroom.

As K-12 public education shies away from teaching nuanced history from multiple perspectives, Wilson thinks universities need to react accordingly: Colleges are going to want to become a place of refuge for students of color. [Theyre] going to become the place where we can finally come and speak our truths freely.

Dr. Ben-Porath explains that speech is already legally restricted in primary and secondary schoolK-12 students can face punishment for their words, jokes, or writing in educational environments. In the current system, high school students are unprepared to engage with a truly open environment in college, which often leads to offense, discomfort, or extremism. You have not been properly prepared for the kind of open expression environment that we are hoping to support and encourage on college campuses, Ben-Porath remarks.

Community organizer Jordan Madden is working to get to the root of this problem. Madden, a first-year student at Georgia State University, spends his time between classes at the Georgia capitol building, advocating for historically accurate and diverse public education. He says that the lack of a curriculum on social issues and race in public K-12 schools fails to equip students with the skills they need to have complex conversations in college.

Its creating a pipeline system that is allowing students from the time theyre very young to the time theyre well into their careers not to challenge what society has been their whole lives, Madden says between cycles of the laundry machine in his GSU dorm. This is the only time he is available to speakhe was at the Capitol until 1 am the night before, on the last day of Georgias legislative session.

When students turned alumni and administrators arent given a diverse, holistic education, shifts in university demographics and national attitudes around racial equality can be uncomfortable. However, Madden adds, the discomfort experienced by people of color is different from the [discomfort experienced by] people who are leading these bills.

For Sabirah Mahmud, in her first year at the University of Pennsylvania, this is a familiar sentiment. As a brown, low-income student from West Philadelphia, she understands that racial and socioeconomic privilege allows her classmates to believe they can speak on issues about which they are unfamiliar or uninformed. Theres going to be discomfort when people from a repressed perspective feel like they can finally speak up, and people who have had decades and lifetimes of speaking cant speak, Mahmud says.

Tucker leans back in his seat, contemplating the reason he chose to attend UNCG. As an in-state, public university with a reputation for being queer-friendly, it felt like the safest place for him at the time. Despite the online harassment he faced, it may still be an improvement from his violently transphobic upbringing. Hernandez is more sardonicshe chose Texas A&M because it was the most affordable option, and she was excited about the universitys involved culturethe same close-knit environment that stifles her classmates ability to express themselves.

These students dont hate their universitiesthey recognize the pressing need for a cultural shift in the free speech conversation that will prioritize the voices of minority students, targeting hate speech, harassment, and misinformation in all levels of education. A few months ago, I would have said that we have some of the best free speech in the nation, Hernandez said. But now it seems like speech is only protected when it follows a certain narrative.

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The Silenced Students in the Free Speech Debate - The Nation

Everyone favors free speech, but many believe it should be curbed with regulation.

Free speech is a core freedom taken for granted in Western democracies. With the rise of social media platforms and new forms of discussion, free speech has been hotly debated recently. Some complain they want more of it, while others want to regulate it, and some want both. Beyond culture wars, the real issue will be regulation to intervene beyond defamation, fraud and incitement to crime. Recent initiatives have gradually shaped the possible fates of free speech in Western democracies.

Free speech is an essential part of democratic culture and institutions, and broadly understood progress. From a cognitive point of view, the free exchange of ideas enables the development of knowledge personal and scientific. As the philosophers John Stuart Mill (1806-1873) and Karl Popper (1902-1994) have argued, the competitive, open process of criticism of ideas is the best way to discard error and falsehoods in hard and human sciences. That does not mean that all bad ideas are always discarded, but the growth of correct ideas is enabled. Some people still believe the Earth is flat, but we have been flying planes for more than a century, and this is what truly matters.

From a political point of view, free speech and property rights act as a bulwark against tyranny. When information about government deeds is shared freely thanks to free speech it gives informed citizens an incentive to ask for accountability. Free speech goes hand in hand with tolerance (although it enables the intolerant to speak) and mutual understanding another aspect of progress against tyranny and its arbitrariness.

However, there is a problem with this bulwark very aptly described by Winston Churchill in 1943: Everyone is in favor of free speech. Hardly a day passes without its being extolled, but some peoples idea of it is that they are free to say what they like, but if anyone says anything back, that is an outrage.

From some on the political right, the complaint lately has been that ideas and people are being canceled and censored by major social media like Facebook or Twitter because of the conservative criticism of woke culture.

Conservative groups and personalities, including former United States President Donald Trump and U.S. senators Marco Rubio and Ted Cruz, want the government to protect their speech by enforcing more free speech and neutrality on these platforms. They argue that protecting their constitutional right to free speech should be accomplished by curbing the platforms moderation of right-wing content and countering their canceling practices.

To many observers, the conservative argument here is a form of moral panic. Free speech is not a right to a public platform, and censorship comes from the government, not from private publishers or platforms. In the U.S., the First Amendment is a protection from the government. Property rights thus trump the right to free speech. Publishers of magazines or newspapers have the right to refuse opinion texts (op-eds) submitted to them. Social media can moderate content and suspend, or even kick out, participants if they do not respect their terms of service.

These so divergent groups want free speech within boundaries beyond mere defamation and incitement.

Canceling in that context is unproblematic. Everyone has the right to go and speak elsewhere. For example, on February 21, 2022, Mr. Trump launched his own social media platform, Truth Social, to stand up to the tyranny of big tech. That was his response to being banned from Twitter and suspended from Facebook in early 2021. (The project has not been successful.) Acquisition of a successful platform to change it is also possible: billionaire Elon Musk launched an attempt to buy Twitter, claiming that it was stifling free speech. And this is how so-called censorship issues are solved in a free market democracy.

At the same time, though, conservative groups do not mind speech limitations regarding sexual content, anti-religious ideas or racial history. In the U.S., several Republican-governed states have introduced a form of regulation for school curricula. In this regard, they are, conceptually, on the same page with those on the left who want governments to regulate free speech to avoid offensive or dangerous ideas only about different matters: LGBT phobia, racist and sexist speech.

These so divergent groups want free speech within boundaries beyond mere defamation and incitement. Cancel culture, in that case, goes a step further and resorts to either physical violence (activist students on some campuses in the West) or regulation by lobbying the authorities to censor the ideas they find offensive. Regulators in democratic institutions have long responded favorably to demands of greater government regulation in the realm of ideas through hate speech or anti-revisionist laws.

The context of the Russian war in Ukraine and the onslaught of Kremlin-produced propaganda probably increased this concern in democracies. In April 2022, former U.S. President Barack Obama delivered a high-profile lecture at Californias Stanford University in which he called for protecting but regulating free speech. And not even a week after the agreement over the European Digital Service Act (see box 2), a Declaration of the future of the internet was circulated. It aims to increase regulation over speech. A day earlier, a short-lived Disinformation Governance Board was launched in the U.S., under the umbrella of the Department of Homeland Security, with the goal of countering foreign mis/disinformation.

The argument is that democracy is threatened by hate speech, disinformation and conspiracy theories. In theory, platforms offer a broad space for exchanging various ideas, the users actually join groups dedicated to formulating, sharing and discussing particular matters. However, participants select the groups not on an open rationality basis but rather on a confirmation bias. Some people thus effectively shut themselves off to other opinions and facts, and network effects make bad ideas snowball very quickly. Clearly, this represents a negative externality a typical justification for government intervention.

The optimistic scenario is that new regulations will indeed strengthen democracy. But things could get more complicated and scenarios more pessimistic.

In all these recent instances, democratic authorities distance themselves from censorship- and surveillance-based regimes like in Russia or China. However, the quest for a free and safe internet opens the door, by very definition, to more regulation. As Mill warned us, there is a clear danger of censorship behind the guise of regulation even in democracies.

John Stuart Mill defended free speech on the following basis:

A silenced opinion can be based on truth; to think that this could not be the case is to assume ones infallibility.

Even if a minority opinion is wrong, it could be partly correct. As any opinion rarely reflects the entire truth, it is better to let the final formulation emerge from the confrontation of various views.

Even if the prevailing general opinion describes the whole truth, we must ensure the free expression of divergent views so that the dominant view can be contested and thus not be taken as prejudice and understood on the rational ground.

Silencing a minority opinion would weaken the meaning of the doctrine itself. Challenging the majority enables it to retain its vital effect, grounding its conviction in reason and personal experience and thus preventing it from becoming a dogma.

Finally, accepting free speech and dissenting opinions but only within certain boundaries raises the issue of which boundaries, how to define them and who is to do so. Mill warned of an instrumentalization of acceptable boundaries by the partisans of the mainstream opinion to silence opponents by labeling their views as dangerous, extreme, or lacking restraint.

Increased self-censorship from platforms (to follow regulations and avoid fines) will be based on algorithms. Some fear that this effectively brings these endeavors closer to the position of authoritarian regimes.

Good intentions in legislation sometimes lead to unintended effects. As Benjamin Constant remarked two centuries ago, speech regulation gives governments the right to determine the consequences of opinions. Then, governments acquire the right to determine what is true and false, especially when the incriminated concepts (offense) are subjective and not precisely defined. This situation introduces a fair dose of arbitrariness as two questions arise. Do they have the necessary knowledge to determine this? And do they have the right incentives? The future of free speech lies in the answers.

One issue here is the we are a democracy; we cannot be wrong assumption. The inquisition was irrational, and democracy is rational. This is the essence of Mills criticism of assuming infallibility of the majority opinion. Democracy is imperfect, and it is precisely free speech and criticism including conspiracy theories that help prevent its metastasizing into authoritarianism.

If democracy were perfect, we would not even talk about corruption. Will corruption suspicions now be labeled as conspiracy theory? An illustrative case: the Hunter Biden computer story (of a laptop containing thousands of authentic emails delivered in 2019 at a Delaware repair shop and never collected) was first dubbed as conspiracy theory and disinformation by the progressive media and the political establishment. Eventually, it proved worthy of investigating. A law against disinformation would have thus probably prevented the investigation and the eventual emergence of the truth.

Saying that we are a democracy does not suffice to protect society from the danger of knowledge errors at the top and effective censorship. Creating independent bodies to investigate the matter can help. Again, though, the bold assumption here is that experts always have the knowledge, and that governments possess the wisdom of choosing the right experts with the relevant expertise. In such a context, regulating free speech beyond direct crime incitement, fraud and defamation is a profound democratic challenge, and it can easily undermine the truth.

The conspiracy label can be instrumentalized, sometimes to protect power. Interestingly, between the two extremes of conspiracy theory and care-bears views of the world lies the complex reality: there sometimes are some vested interests that seek power and money with and within democratic governments. Incentives matter then, and this again raises the question of who will watch the watchers? and has justified constitutional guarantees such as the First Amendment in the U.S.

The stories of whistleblowers Edward Snowden or Chelsea Manning show that democratic powers can also practice severe censorship.

After all, more than 60 years back, a U.S. president, himself a general, solemnly warned his fellow citizens of the risks posed to the American democracy by an unchecked military-industrial complex. The stories of whistleblowers Edward Snowden or Chelsea Manning show that democratic powers can also practice severe censorship and hide uncomfortable truths regardless of the security label put on the justification. Public choice theory, which stresses the role of individual incentives within democratic policy-making processes to criticize the naive assumption of benevolence in politics and bureaucracy, even won economist James Buchanan a Nobel Prize.

The future will thus be partly determined by the new incentives given by those laws and the ability of lobbies to impose their truth by mere regulation capture. Industrial lobbyists with direct access to higher authorities could have criticisms of their product censored under the pretext of conspiracy theory. Governments could do the same with some of their policies disliked by conspiracy believers. Regulation will always lead to bureaucracy, always bent on expanding its power, clientele and regulatory power. Beyond democratic challenges, it also has a fiscal cost.

An increasing number of social groups will be incentivized to play the victim game effectively weakening democratic dialogue, communitarianism and sowing frustration. Governments will have the final say in selecting the deserving victims and discarding the less worthy ones. In France, the anti-revisionist Gayssot Act of 1990 criminalized the denial of the holocaust sanctioned by the Nuremberg trials, but not of communist genocides in Ukraine, or such places as China or Cambodia. Parliament member Jean-Claude Gayssot happens to be a communist.

A deciding parameter in possible scenarios for the global spread of DSA will be the U.S.-EU power ratio. The regulation was first submitted together with Digital Markets Act (it aims to foster competition in the digital world) by the European Commission to the European Parliament in December 2020. If passed on by national parliaments of the EU member states, the DSA will go beyond banning illegal content, addressing disinformation, and imposing huge fines of up to 6 percent of Big Tech platforms global revenues if they fail to moderate incriminated content. It is uncertain whether the U.S. would let the EU mete out fines to American Big Tech firms. The U.S. constitutional protection of free speech by the First Amendment most likely will block the way to European regulatory centralism. The U.S.s own Disinformation Governance Board was, after all, paused by the Homeland Security Department amid a barrage of criticism after only three weeks.

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New threats to freedom and free speech - Geopolitical Intelligence Services AG

(June 1, 2022 / JNS) Silicon Valley oligarchs, along with their political allies and beneficiaries of their financial contributions in Congress and the Jewish community, breathed a sigh of relief on Tuesday. The U.S. Supreme Court ruled in their favor when it blocked enforcement of a Texas law that would have stopped social-media companies from removing posts and banning users because of the content of their posts. The decision wont be the final word on the matter, though; what was at stake was an effort by Texas to have the law remain in place while a federal appeals court considers the case.

The ruling, in which the majority didnt issue a written opinion, was the result of an odd coalition. The majority was made up of the courts conservatives (Chief Justice John Roberts, and Justices Brett Kavanaugh and Amy Coney Barrett) and two of the liberals (Justices Sonia Sotomayor and Stephen Breyer) while the minority was composed of three other conservatives (Justices Clarence Thomas, Samuel Alito and Neil Gorsuch) and one liberal (Justice Elena Kagan). This unusual split illustrates just how difficult a challenge this issue poses to the law. When the case eventually comes before the high court to be decided on the merits rather than on more technical questions about whether it can remain in place until that happens, the decision may go the other way.

Like the dispute over a similar law passed by Florida that is also being challenged, a fundamental question facing 21st-century life will be at stake in the outcome. Since its unlikely that Congress will legislate an answer to the problem, it is the Supreme Court that will have to decide which is more important: the right of free speech in a democracy or the need to prevent the spread of hatred on the Internet.

As far as some of the leading voices of the American Jewish community are concerned, the answer is a slam dunk. Speaking on behalf of most liberals, the Anti-Defamation League believes that worries about the way the Internet and social-media facilitate and strengthen hatemongers, including racists and anti-Semites, means that more of what they euphemistically call moderation is necessary.

The ADL has been among the loudest cheerleaders for efforts to increase censorship on Facebook and Twitter. Egged on by people like actor Sacha Baron Cohen, the ADL has helped to pressure the social-media giants to crack down on expressions of hate and partnered with PayPal in an effort to demonetize publications that it labeled, rightly or wrongly, as extremist.

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Cohen successfully shamed Mark Zuckerberg into reluctantly embracing censorship by comparing him to a restaurant owner that hosted Nazis when he had the right and the duty to refuse them service. But if the only people that Facebook, Twitter or YouTube booted off its sites were neo-Nazis or members of the Ku Klux Klan, then Texas and Florida would never have passed these laws. Instead, these companies have made no secret of their political inclinations by shutting down reporting of a story that might have hindered the election of President Joe Biden. Since then, they have repeatedly targeted conservatives for moderation, which is to say they are engaged in the censorship of views the owners of these companies and their largely woke staffs dont like.

The most famous of their targets is former President Donald Trump. He was silenced on social media because of his insistence on disputing the integrity of the 2020 presidential election after his defeat and for being blamed for the resulting Jan. 6 riot at the U.S. Capitol, though the same companies were perfectly happy to allow those who had fomented the more deadly and destructive Black Lives Matter riots to remain on their platforms. But hes far from the only one that has felt the heavy hand of Big Tech censorship. These companies have intermittently silenced a variety of figures on the right for enunciating stands on controversial issues, including shutting down the accounts of the Babylon Bee, a satire site and LibsofTikTok, which ironically publicized the views of left-wing extremists because they think exposing to a broader public will discredit their side on a host of culture-war issues.

To those who decry their censorship, the companies and their liberal defenders respond by citing their property rights as private companies and the constitutional principle that guarantees publishers the right to accept or decline material as they see fit.

Were these sites normal publications, whether online or traditional print, theyd be within their rights to publish what they like as Americas founders intended when they wrote the First Amendment. But they are nothing of the sort.

These Internet giants are not liable, as any other publisher is, for what they post or to be held accountable if they are responsible for spreading libelous material. To the contrary, Section 230 of the federal Communications Decency Act of 1996 holds them exempt from action because Congress deemed any such interactive computer service to be the moral equivalent of a bulletin board rather than a newspaper, magazine or broadcast outlet.

Even more important, they are, as Texas Attorney General Ken Paxton has argued, the 21st-century descendants of telegraph and telephone companies: that is, traditional common carriers. That means, as is the case with a variety of businesses that fall into that category, they are obligated to take on all customers, except in very limited circumstances.

Speaking for the three conservative dissenters, Justice Alito agreed. He was also on point when he noted that it is not at all obvious how our existing precedents, which predate the age of the Internet, should apply to large social-media companies.

The publishers of the past (or the present) do not compare to the reach and the power of these sites. Facebook, Twitter and YouTube arent merely venues for expression. In our contemporary world, they are the virtual public square and have more power than governments or the press as we once envisioned it. Even if we were to assume their intentions are apolitical, which they clearly are not, or whether supposedly high-minded groups like the ADL are advising them, they cant be given the right to effectively determine what kind of speech, whether good or bad, can be heard. Thats something that not even the most powerful media barons of the past could ever dream of doing.

The Texas law only applies to social-media platforms with more than 50 million active monthly users. It also exempts sites whose content centers on news, sports and entertainment not primarily provided by users. It also provides some exceptions to the prohibition on moderation that include sexual exploitation of children, incitement of criminal activity and some threats of violence. If eventually upheld by the courts, the law would therefore uphold the right of free speech in a way that is meaningful in our current environment and without which we would all be at the mercy of a few powerful multi-billionaire Big Tech moguls in order to express our opinions.

This would also mean that a lot of terrible speech would be allowed on social media. Thats not a consideration that can be easily dismissed in an era in which a rising tide of anti-Semitism is spreading across the globe. Still, it should be noted that a great deal of hate, especially from the anti-Semitic far-left or totalitarian states like Iran, is already deemed not to be a problem by these companies.

Its shocking to think how many who bandy about the word democracy, especially groups like the ADL that have abandoned nonpartisanship in favor of open partisanship for the Democratic Party, have no problem with a few people in Silicon Valley having the ability to shut down any speech that they deem harmful or merely inconvenient to the parties or groups they support.

It is not enough to say, as the ADL does, that online extremism is dangerous and therefore must be silenced. In a free country, words or advocacy of even the worst causes is not violence. While many may have cheered Cohens point about throwing Nazis out of public establishments, the security of minorities like Jews is better protected by preserving the right of free expression and an open public square than by relying on the likes of the ADL or their Big Tech donors to tell us what we can or cannot say. It can only be hoped that the courts are wise enough to understand this distinction.

Jonathan S. Tobin is editor-in-chief of JNS (Jewish News Syndicate). Follow him on Twitter at: @jonathans_tobin.

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Can free speech be protected without helping the haters? - JNS.org

The Biden administrations increasingly aggressive efforts to combat so-called misinformation, along with the prospective acquisition of Twitter by free speech advocate Elon Musk, have sparked a national debate about what role, if any, the government should play in censoring social media.

While some have applauded the administrations campaign to police online misinformation about COVID-19 and other subjects, including through its recent creation of a Disinformation Governance Board within the Department of Homeland Security, others have harshly criticized the notion that the government should be the arbiter of truth.

As these critics have observed, many views derided as COVID-19 misinformation in 2020 or 2021for instance, that the virus originated in a lab and that community masking appears to be relatively ineffectiveare now gaining traction in mainstream circles.

Likewise, government officials, including President Joe Biden and Centers for Disease Control and Prevention Director Rochelle Walensky, have made claims that later turned out to be untrue, such as that the vaccines reliably stop transmission and that masks are 80% effective at preventing infection.

These revelations have prompted many discerning Americans to question the notion that anyonewhether the government or tech companiesshould be allowed to control information shared on social media. Indeed, the understanding that no one has a monopoly on the truth, and that governments are themselves prone to bias and disseminating falsehoods, is a primary reason the Framers included the First Amendment in the Bill of Rights.

Yet in the same week, four separate lawsuits brought on behalf of suspended Twitter users challenging such censorship on First Amendment grounds were dismissed in federal courts, including one brought by former President Donald Trump.

(The author is the lead attorney on one of these cases, Changizi, et al v. Department of Health and Human Services, et al. One of the four, brought by former New York Times journalist and well-known lockdown skeptic Alex Berenson, was permitted to proceed on breach of contract theoriesthe First Amendment claim was dismissed, as it was in the other lawsuits).

Three of the four lawsuitsall except Trumpswere premised on versions of the theory that social media censorship is effectively state action, due to pressure exerted on companies by the federal government to quell the spread of misinformation.

Plaintiffs pointed to myriad statements by Biden administration officials and congressional Democrats, beginning as early as December 2020, threatening to hold social media platforms accountable or liable if they do not censor users who spread virus misinformation.

Further, former White House press secretary Jennifer Psaki and DHS Secretary Alejandro Mayorkas have stated in no uncertain terms that the administration has ordered social media companies to remove certain problematic posts.

As evidence the government is unlawfully coercing tech companies, some plaintiffs referenced Surgeon General Vivek Murthys March 2022 request for information. It demands that tech companiesfrom social media platforms to e-commerce websites to search enginesturn over (among other things) the identity of purveyors of COVID-19 misinformation.

Many have viewed the benignly named request as a threat to impose regulation absent compliance from tech companies, particularly in conjunction with the warnings described above.

Social media platforms like Twitter face pressure to curry favor with the government to avoid adverse consequences, plaintiffs argue, so censoring users for voicing views the government disfavors on COVID-19 violates the First Amendment.

So far, courts have rejected this argument. They have reasoned that officials threats of regulatory action or liability for spreading misinformation do not establish that any plaintiff was censored because of the government. Twitter, courts surmise, may well have chosen to censor plaintiffs regardless of what Biden, Murthy, and Mayorkas say, vitiating any First Amendment claim.

This reasoning is misguided. First, evidence indicates censorship of plaintiffs accounts resulted from government intervention. Only after the administration began its public campaign, in the first months of 2021, was my client, Mark Changizi, suspended for tweeting that masks do not work, the flu is more deadly to children than COVID-19, and asymptomatic individuals rarely spread the virus, despite posting near-identical content throughout 2020.

Michael Senger and Daniel Kotzin, two other clients, were suspended immediately after the surgeon generals March 3 request for information. None of the three was ever suspended prior to the Biden administrations threat to punish noncompliant technology companies.

Twitter users noticed a significant uptick in permanent suspensions among those who questioned the governments approach to COVID-19 beginning about a year ago, as several plaintiffs attested in declarations appended to their lawsuits.

Of course, a jury might find this proof of causation insufficient. But courts are wrong to require stronger factual evidence at the pleading stage. To survive a motion to dismiss, a plaintiff need only establish a plausible inference that the facts, construed in the light most favorable to him, support a claim that would entitle him to the relief requested.

Given threatening statements made by various government actors, admissions that they have orchestrated removal of disfavored posts from social media, establishment of a Disinformation Governance Board, and demands that social media companies turn over information about purveyors of misinformation, there is a plausible inference that the plaintiffs accounts were censored by state action.

Furthermore, information obtained via discovery could substantiate the inference that social media companies are doing the governments bidding, and not acting (solely) of their own volition. Indeed, as noted in a letter a congressional subcommittee sent to Biden in December 2020, this degree of censorship runs counter to social media platforms financial incentives.

Granting a motion to dismiss means a case cannot proceed to discovery and puts lawyers bringing these cases in a Catch-22: Courts will not allow them to obtain the very discovery the courts deem necessary to establish causation.

Notably, a Freedom of Information Act request made by attorneys in one of these cases has been answered with a perfunctory disclaimer that a backlog of thousands of cases means that it may take two years for the request to be fulfilled (Changizi v. HHS).

Finally, assuming for the sake of argument that the government is not responsible for these specific instances of censorship, the administrations acts nonetheless chill speech. Knowing that Twitter, Facebook, and YouTube are under significant pressure from the government to silence them, these plaintiffs have attested they self-censor in order to avoid losing their accounts. That alone suffices to establish injury in the First Amendment context.

The courts dismissal of these lawsuits is unfair not only to the individual plaintiffs, but to the American people, who deserve government transparency.

The Biden administration has, at every juncture and in every manner possible, blocked efforts to shed light on its actions, and district court rulings are enabling the blackout. If the courts of appeals do not see things differently, the First Amendment may very well be dead on arrival in the digital age.

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Government Censorship of Social Media Will Prove Fatal to Free Speech - Daily Signal