In the late 1950s, the Rhode Island legislature created a commission to encourage morality in youth. One of its practices was to send notices to out-of-state distributors and retailers of publications it deemed obscene, asking for cooperation in suppressing them. The notices warned that the commission had circulated lists of objectionable materials to local police departments, and that it would recommend prosecution against those found to be purveying obscenity.
Four publishers sued. The case went to the Supreme Court. With one dissent, the justices in Bantam Books Inc. v. Sullivan (1963) held that the informal censorship violated the 14th Amendment. They also noted that it didnt matter that the Rhode Island commission had no real power beyond informal sanctions.
People do not lightly disregard public officers thinly veiled threats to institute criminal proceedings against them if they do not come around, noted Justice William Brennan, a fierce liberal, in his opinion. It would be nave to credit the states assertion that these blacklists are in the nature of mere legal advice, when they plainly serve as instruments of regulation independent of the laws against obscenity.
Brennans warning is worth keeping in mind when considering last weeks ruling in Missouri v. Biden, in which a federal district judge in Louisiana, Terry Doughty, ordered the Biden administration to desist from communicating with social media platforms for purposes of removal, deletion, suppression or reduction of content containing protected free speech.
Judge Doughtys order has flaws, including, it seems, some dubious assertions of fact that need to be closely investigated. And the broadness of the preliminary injunction is also a practical issue.
Still, the order is a triumph for civil liberties. It also ought to be considered a victory for liberals, insofar as liberals have historically been suspicious of Big Tech and the big national-security state cooperating, as alleged in this case to suppress the speech of people whose views they deem dangerous.
But in one of the stranger inversions of recent politics, its mostly conservatives who are cheering and liberals who are decrying the ruling. A government official appearing on a television show and stating that certain speech is disinformation does not come even remotely close to the government coercing social media companies into removing that speech, scoff the law professors Laurence Tribe and Leah Litman in an essay on the Just Security website.
Fair enough. And its certainly true that senior government officials, no less than private individuals, also have free speech rights, which include urging companies to do what they think is the right thing. The legal line between a government official encouraging or discouraging private conduct versus engaging in behavior that amounts to coercion is a blurry one.
But its also a line that, in this case, the administration seems to have repeatedly crossed. Two examples:
In a July 20, 2021, interview on MSNBC, the anchor Mika Brzezinski asked Kate Bedingfield, who was then the White House communications director, whether the White House would amend Section 230 of the Communications Decency Act so that social media companies would be open to lawsuits for hosting Covid misinformation. Bedingfield replied, Were reviewing that, and certainly they should be held accountable. Social media companies soon began to remove the pages and accounts of the so-called Disinformation Dozen, referring to notorious vaccine skeptics.
On Oct. 29, 2021, Surgeon General Vivek Murthy tweeted that we must demand Facebook and the rest of the social media ecosystem take responsibility for stopping health misinformation on their platforms. That day, according to Doughtys ruling, Facebook requested that the government provide a federal health contract to determine what content would be censored on Facebooks platforms.
Neither of these cases is an example of the administration merely encouraging Big Tech to remove ostensibly harmful content. On the contrary, it is multiple federal agencies yelling jump and threatening dire legal consequences and Big Tech replying, in effect, How high?
The constitutional principle should be obvious. Government should not be able to do an end-run around its constitutional obligation to protect freedom of speech by delegating censorship to private-sector actors, Nadine Strossen, a former president of the American Civil Liberties Union, told me on Tuesday. If private-sector action becomes so closely interwoven with the government that it becomes functionally indistinguishable from state action, it sensibly becomes subject to First Amendment constraints.
Thats true irrespective of whose speech is being curtailed.
Critics of last weeks ruling may claim that, at the height of the pandemic, with thousands of Americans dying of Covid every day, the government had an urgent interest in curtailing what it saw as misinformation. Similar claims were made about communists at the height of the Cold War and antiwar activists during World War I. Yet the actions of government and powerful media companies against them shock us to this day.
It shouldnt be hard to agree that the highest purpose of the First Amendment is to protect speech we like the least speech we are sure is pernicious, bigoted, obscene or potentially harmful to health. Liberals especially should take care that the arguments they now make for privatized censorship will not eventually be turned on them.
Link:
Opinion | Speech We Loathe Is Speech We Must Defend - The New York Times
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- 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]
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- This Country Can't Afford A SCOTUS Weak On Internet Censorship - The Federalist - March 24th, 2024 [March 24th, 2024]
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- 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]
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- Supreme Court Makes A Mockery Of Free Speech - The Federalist - March 24th, 2024 [March 24th, 2024]
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- 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]
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- Let The Government Censor Away Through Agents It Controls, Say Cabal Of A.G.s To U.S. Supreme Court Wirepoints - Wirepoints - 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]
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- 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]
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- 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]
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- 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]