By: Mark Glennon*
This shouldnt be hard to understand: If you think government should have the power to censor what it says is false, then you dont believe in the bedrock of a democratic republic free speech.
But a group of state attorneys general apparently think government should have that power because thats exactly what they recently asked the U.S Supreme Court to make the law of the land.
Its in an amicus brief signed by 22 state attorneys general in what will be a historic case now pending before the Supreme Court on whether the government can bypass the First Amendment using private sector tech platforms as its agents to censor what the government doesnt like. Illinois Attorney General Kwame Raoul is among the signers.
The case is Murthy v. Missouri, formerly called Biden v. Missouri.
The Supreme Court has rarely been faced with a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life, wrote the federal appellate court in its ruling against the government.
In a fitting and splendid gift to America last Independence Day, a federal trial judge issued a 154-page ruling on the case laying out the facts against the government in detail. The evidence of tech manipulation directed by the government was so strong and the matter so important that the judge issued a temporary, sweeping order barring the Biden Administration and the rest of the federal government from most all contact with social media platforms.
The federal appellate court upheld the ruling though it changed the wording of the order.
Now comes the Supreme Court, which will hear the case this spring.
And enter the group of state A.G.s
The government will lose. The lawsuit will not be vacated. The only real issue is on what terms they will lose, which is what the A.G.s should have addressed. The evidence is simply too overwhelming to deny. The Biden Administration, including the FBI and the Center for Disease Control, strongarmed social media platforms to squelch unfavorable stories and elevate its narrative of the news about the Hunter Biden laptop scandals, Covid, President Biden, election integrity and more. Its all laid out in the trial courts ruling. Thousands of pages of evidence showing it are summarized therein. Read the trial courts memorandum yourself.
In a ruling of such importance and with such broad consequences, however, theres reasonable disagreement over exactly how to write out what the government must not be allowed to censor.
But the A.G.s brief doesnt do that, asking the Supreme Court to throw the case out entirely: Vacate the lower courts ruling entirely, the brief expressly requests.
Censor away, in other words.
To be specific, this is about stopping the government from skirting its First Amendment obligations by outsourcing censorship to private parties not bound by the First Amendment, like tech platforms, that can censor what they choose if acting on their own.
Government often publishes guidelines and information on foreign travel warnings, cybersecurity threats, scam artists, public health and the like. No problem. But free speech is denied when the government imposes its messaging on private news platforms to suppress competing viewpoints. Those efforts usually travel under the label of combatting misinformation, hate speech or the like.
The line can be difficult to draw. When does the government wrongly coerce and encourage censorship by tech platforms?
Suppose the FBI suggests you censor something. Maybe it would be like saying this, as one of the appellate judges put it perfectly during oral arguments: Thats a really nice social media platform you got there it would be a shame if something happened to it.
The appellate court drew the line between harmless government guidance and unconstitutional strongarming by issuing an order saying this:
The appellate court Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies decision-making processes.
It reached that conclusion based after a long analysis in its opinion of court precedent, logic and practicality. That temporary order was put on hold by the Supreme Court pending its review, but its all but certain to be made permanent in some fashion, the appellate court concluded, and thats surely true subject only to whatever adjustments the Supreme Court sees fit.
How does the A.G.s brief justify throwing out the case entirely, disregarding rafts of evidence and precedent?
It doesnt.
It resorts to red herrings, first with a big list of ways government publishes routine guidance that should be permissible on matters that nobody has a problem with.
When it comes to whats at issue actually censoring what the government doesnt like Raouls brief claims the appellate court ruled that the mere existence of government amounts to coercion, and that it relied on a vague entanglement standard about government involvement with tech companies.
Those, too, are red herrings. Those factors had little role in the appellate courts ruling. Insofar as they were part of the analysis and should be downplayed, fine, tweak the ruling to fix that. The A.G.s might plausibly have argued for the Supreme Court to do that.
Instead, they asked the Supreme Court to throw out the whole lawsuit.
That result would gut free speech and lobotomize democracy.
For a more scholarly summary of the First Amendment infractions in Raouls brief, see the recent column here by my brother, Mike, a law prof. Better yet, read his new book on the full subject of the modern assault on free speech: Free Speech and Turbulent Freedom: The Dangerous Allure of Censorship in the Digital Era.
Illinois is among the worst offenders in that modern allure of censorship. Its long train of abuse and usurpations is often flagrant, listed in the columns linked below. Making that assault on free speech more terrifying is the abandonment by most media of its traditional role defending free speech. You will find little if anything in Illinois legacy media on the matters in that list.
Above all, know this: Your rights include the right to hear. The right to hear what the government doesnt want you to hear is a corollary of your First Amendment right to free speech, as the courts long ago ruled. Its that right to hear that is being stolen from you, and that right is directly at issue in Murthy v. Missouri.
That right was not given to you by the anybody in any level of government. Give it up and youve given up your democratic republic.
*Mark Glennon is founder of Wirepoints.
Illinois recent, long train of free speech abuses:
- NRA case shows the Supreme Court must stop informal censorship - Foundation for Individual Rights and Expression - March 24th, 2024 [March 24th, 2024]
- Microsoft faces bipartisan criticism for alleged censorship on Bing in China - The Register - March 24th, 2024 [March 24th, 2024]
- Is Fighting Misinformation Censorship? The Supreme Court Will Decide. - Reply All | Gimlet - March 24th, 2024 [March 24th, 2024]
- The censorship industry and it's connection to Israel - JNS.org - March 24th, 2024 [March 24th, 2024]
- How to improve Chinese TV? Better censorship, says top tellie-maker - The Register - March 24th, 2024 [March 24th, 2024]
- Up First briefing: Putin wins Russian election; SCOTUS censorship case - NPR - March 24th, 2024 [March 24th, 2024]
- Elon Musk calls X number one source of news in the worldand also a hardcore, player versus player platform - Fortune - March 24th, 2024 [March 24th, 2024]
- Asking is not censorship: No First Amendment bar for government to talk to publishers - New York Daily News - March 24th, 2024 [March 24th, 2024]
- X-Men: The Animated Series was defined by its censors - Polygon - March 24th, 2024 [March 24th, 2024]
- Justice Jackson lambasted for 'concern' 1st Amendment could 'hamstring government' in COVID censorship hearing - Fox News - March 24th, 2024 [March 24th, 2024]
- The Beginning of the End for the Censorship-Industrial Complex? - National Review - March 24th, 2024 [March 24th, 2024]
- RFK Jr.: Government shouldnt have role in social media moderation - NewsNation Now - March 24th, 2024 [March 24th, 2024]
- Self-Pollinating Narrator of 'Wishtree' Called 'Indoctrination,' Virginia District Group Read Canceled | Censorship News - News Letter Journal - March 24th, 2024 [March 24th, 2024]
- This Country Can't Afford A SCOTUS Weak On Internet Censorship - The Federalist - March 24th, 2024 [March 24th, 2024]
- Banning TikTok is just the first step to censorship - Point Park Globe - March 24th, 2024 [March 24th, 2024]
- SCOTUS Ponders Whether Biden Administration Coerced Social Media Platforms To Censor Speech - Reason - March 24th, 2024 [March 24th, 2024]
- In Virginia, Censors Attempt to Axe 'Wishtree' - Publishers Weekly - March 24th, 2024 [March 24th, 2024]
- Elon Musk Says Moderation Is a Propaganda Word for Censorship About Offensive X Posts - Rolling Stone - March 24th, 2024 [March 24th, 2024]
- Supreme Court Makes A Mockery Of Free Speech - The Federalist - March 24th, 2024 [March 24th, 2024]
- No matter how you view TikTok, banning the platform would be censorship - The Daily Orange - March 24th, 2024 [March 24th, 2024]
- China must look beyond censorship and economic power to win hearts and minds - South China Morning Post - February 5th, 2024 [February 5th, 2024]
- 'The View' Producers Forced To Censor Ana Navarro's Expletive As She Talks About Biden - Daily Caller - February 5th, 2024 [February 5th, 2024]
- How China Censors Critics of the Economy - The New York Times - February 5th, 2024 [February 5th, 2024]
- A Startup Allegedly 'Hacked the World.' Then Came the Censorshipand Now the Backlash - WIRED - February 5th, 2024 [February 5th, 2024]
- Negative Takes on China's Economy Are Disappearing From the Internet - The Wall Street Journal - February 5th, 2024 [February 5th, 2024]
- 14 Massachusetts colleges land on restrictive free speech list: Censorship and terrible policies - Boston Herald - February 5th, 2024 [February 5th, 2024]
- The Association of Appin Training Centers is waging a global censorship campaign to stop you from reading these ... - MuckRock - February 5th, 2024 [February 5th, 2024]
- Norway owns a part of Putin's propaganda and censorship machine - The Independent Barents Observer - February 5th, 2024 [February 5th, 2024]
- Censorship? That's just obscene! | Opinion | register-herald.com - Beckley Register-Herald - February 5th, 2024 [February 5th, 2024]
- Censorship in the West is the same as Mao's China, says Chinese dissident artist Ai Weiwei - Sky News - February 5th, 2024 [February 5th, 2024]
- South Korean government reported to announce plans for smoking scene censorship from K-dramas and films at the ... - Sportskeeda - February 5th, 2024 [February 5th, 2024]
- Prime Video's 'Expats' Was Filmed in Hong Kongbut You Can't Watch It There - TIME - February 5th, 2024 [February 5th, 2024]
- ADF to 8th Circuit: Govt can't censor pro-life views - ADF Media - February 5th, 2024 [February 5th, 2024]
- Fox News Forced To Censor Trump As He Rants About Gavin Newsom And Michelle Obama - Towleroad - February 5th, 2024 [February 5th, 2024]
- NYC teachers will exchange notes on how to get around censorship to teach kids about the genocide in Gaza - New York Post - February 5th, 2024 [February 5th, 2024]
- The GOP Has a Plan for Online Safety. It Involves Censoring LGBTQ Content. - The New Republic - February 5th, 2024 [February 5th, 2024]
- Opinion: Need help finding a good book? Try one your 9th grader isn't allowed to read - Los Angeles Times - February 5th, 2024 [February 5th, 2024]
- 'Gateway to Censorship': Journalist Bodies Express Concern Over Proposed Broadcasting Services Bill - The Wire - February 5th, 2024 [February 5th, 2024]
- The Dangerous Pursuit of Journalism in Russia: A Harrowing Reality - Medriva - February 5th, 2024 [February 5th, 2024]
- Global censorship campaign raises alarms - Freedom of the Press Foundation - January 21st, 2024 [January 21st, 2024]
- Texas Library Censorship Attempt Struck Down By 5th Circuit - Above the Law - January 21st, 2024 [January 21st, 2024]
- Attacks, arrests, threats, censorship: The high risks of reporting the Israel-Gaza war - Committee to Protect Journalists - January 21st, 2024 [January 21st, 2024]
- South Sudan's Battle with Censorship: Removing Hateful News Articles - The Organization for World Peace - January 21st, 2024 [January 21st, 2024]
- Intimidation leading to censorship in Wisconsin school libraries - Milwaukee Journal Sentinel - January 21st, 2024 [January 21st, 2024]
- Censorship over Palestine: Holocaust Survivor Decries Repression After Talks in Germany Are Canceled - Democracy Now! - January 21st, 2024 [January 21st, 2024]
- As Legacy Media Continues in Decline, It Espouses Censorship More - Walter Bradley Center for Natural and Artificial Intelligence - January 21st, 2024 [January 21st, 2024]
- Trump Nomination: Pundit Expects Censorship, Calls for Riots - The Dallas Express - January 21st, 2024 [January 21st, 2024]
- Data Overwhelmingly Supports Libraries and Library Workers: Book Censorship News, January 5, 2024 - Book Riot - January 5th, 2024 [January 5th, 2024]
- Blame adults these days for censorship - Times Higher Education - January 5th, 2024 [January 5th, 2024]
- CNN admits it runs all Gaza coverage through bureau monitored by Israeli military censor - Salon - January 5th, 2024 [January 5th, 2024]
- Does your Pa. school policy open the door to censorship? - phillyBurbs.com - January 5th, 2024 [January 5th, 2024]
- Iran's internet price rises, and so does the fear of greater censorship - TechRadar - January 5th, 2024 [January 5th, 2024]
- Report highlights censorship and repression of Palestine solidarity across Europe - Morning Star Online - January 5th, 2024 [January 5th, 2024]
- 2024, the year that four billion go the polls - Index on Censorship - January 5th, 2024 [January 5th, 2024]
- Government Internet censorship was imposed 196 times last year - 9to5Mac - January 5th, 2024 [January 5th, 2024]
- In the shadows of self-censorship: The impact of the Cyber Security Act on Bangladeshs LGBTQ+ movement - Global Voices - January 5th, 2024 [January 5th, 2024]
- Jeffrey Wright Says Studio Hired a Replacement Actor to Dub Him After He Refused to Censor the N-Word in a Film: Nah. Thats Not Happening - Variety - January 5th, 2024 [January 5th, 2024]
- Comedian and musician Tom Smothers dies at 86: A victim of government and corporate censorship in the late 1960s - WSWS - January 5th, 2024 [January 5th, 2024]
- Polish pavilion selection at Venice Biennale gets political as rejected artist cries censorship - Art Newspaper - January 5th, 2024 [January 5th, 2024]
- Wartime censorship is necessary, but must be responsible - editorial - The Jerusalem Post - January 5th, 2024 [January 5th, 2024]
- Jeffrey Wright Says a Replacement Actor Dubbed His Lines When He Refused to Censor the N-Word - PEOPLE - January 5th, 2024 [January 5th, 2024]
- Judicial Watch Sues Biden Censorship Agency for Records Targeting Judicial Watch and Its President Tom Fitton - Judicial Watch - January 5th, 2024 [January 5th, 2024]
- Jeffrey Wright Says He Refused To Censor The N-Word In Ride With The Devil & Walked Away From Dubbing Film - Deadline - January 5th, 2024 [January 5th, 2024]
- Academic Bias and Censorship Are Huge Problems, and We Can Prove It - National Review - January 4th, 2024 [January 4th, 2024]
- Laws banning semi-automatic weapons and library censorship to take effect in Illinois - Toronto Star - January 4th, 2024 [January 4th, 2024]
- Here Are The States Urging SCOTUS To Allow Biden Admin To Coordinate With Big Tech To Censor Online Speech - Daily Caller - January 4th, 2024 [January 4th, 2024]
- China Tries To Censor Data About Nearly 1 Billion People in Poverty - Newsweek - January 4th, 2024 [January 4th, 2024]
- Laws banning semi-automatic weapons and library censorship to take effect in Illinois - Firstpost - January 4th, 2024 [January 4th, 2024]
- Iowa School District removes over 70 books without following proper review procedures - Blogging Censorship - January 4th, 2024 [January 4th, 2024]
- Chinese election interference tests Taiwans capability to defend freedom of speech - Index on Censorship - January 4th, 2024 [January 4th, 2024]
- Laws banning semi-automatic weapons and library censorship to take effect in Illinois - Index-Journal - January 4th, 2024 [January 4th, 2024]
- Censorship and the case for institutional literacy - The Hill - December 20th, 2023 [December 20th, 2023]
- Release Of Aquaman And The Lost Kingdoms Dubbed Versions DELAYED Due To Censor Board - Times Now - December 20th, 2023 [December 20th, 2023]
- Gary Simmons on Censorship, Minstrelsy, and the Scourge of Art Fairs - Interview - December 20th, 2023 [December 20th, 2023]
- Jeff Crouere: Censorship is un-American; free speech is the answer - The Franklin Sun - December 20th, 2023 [December 20th, 2023]
- Mother Russia. Who is the face of Russian online censorship, scourge of Russian rappers and Gen-Z icon - . - December 20th, 2023 [December 20th, 2023]
- Why Middle East scholars are self-censoring in the wake of the Israel-Hamas war - NPR - December 20th, 2023 [December 20th, 2023]
- "Keeping Your Mouth Shut: Spiraling Self-Censorship in the United States" - Reason - December 20th, 2023 [December 20th, 2023]
- EU TARGETS Elon Musk's Twitter for MORE CENSORSHIP Over 'HAMAS PROPAGANDA': Rising Reacts - The Hill - December 20th, 2023 [December 20th, 2023]
- Artists protest ongoing censorship of Palestinian culture in the UK - WSWS - December 20th, 2023 [December 20th, 2023]