TGIF: How the State Violated Free Speech during the Pandemic

Is anyone shocked by this observation?

Public statements, emails, and recent publicly released documents establish that the President of the United States and other senior officials in the Biden Administration violated the First Amendment by directing social-media companies to censor viewpoints that conflict with the government’s messaging on Covid-19....

This insidious censorship was the direct result of the federal government’s ongoing campaign to silence those who voice perspectives that deviate from those of the Biden Administration. Government officials’ public threats to punish social media companies that did not do their bidding demonstrate this linkage, as do emails from the Centers for Disease Control and Prevention (CDC) and the Department of Homeland Security (DHS) to social media companies that only recently were made public.

So states the New Civil Liberties Alliance (NCLA) in announcing its lawsuit against President Joe Biden, former chief medical adviser Anthony Fauci, and other government public-health officials,  departments, and spokesmen. The case now before a federal district court in Louisiana is called State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al. No social-media company was named as a defendant. Rather, the suit is about the government's illegal and unconstitutional conduct. (See the complaint for the eye-opening details.) In fact, the complaint states: "Notably ... prior to Defendants’ campaign of threats and pressure, social-media platforms generally declined to engage in the acts of censorship alleged herein." 

The plaintiffs are the states of Missouri and Louisiana and several health care experts, including Dr. Jay Bhattacharya of Stanford University (among other prestigious affiliations) and Dr. Martin Kuldorff of Harvard University, two of the three authors of the Great Barrington Declaration, published in October 2020 and signed by thousands of medical professionals. The Declaration challenged the government-led strategy of shutting down American society through a variety of mandates as though everyone -- young and old, healthy and ill -- were equally vulnerable to the dangers of COVID-19. The government's data on who was suffering serious, possibly lethal illness and requiring hospitalization contradicted that baseless premise early in the pandemic.

The Declaration, which today has signatures from more than 62,000 scientists and health care professionals (and 932,000 signatures overall) called instead for "focused protection" of the elderly and those with already-compromised immune systems. Otherwise, Americans should be left free to live normal lives. The shutdown of society, this view holds, would inflict untold harm in regard to health (because of deferred medical examinations/treatments), psychological well-being, children's education, and lost income. All of this and more have now been documented. "Focused protection," it must be emphasized, was not a radical position in 2020. Rather, it had been the mainstream approach to pandemics for the previous 100 years.

Unfortunately, the authors, who also included Dr. Sunetra Gupta of Oxford University, were smeared by government officials and spokesmen as fringe characters who could be safely ignored. At the same time, the national government pressured social media to suppress challenges to its message and policies. In other words, the government did everything it could short of direct censorship to keep the American people from knowing that eminently qualified doctors and other scientists disagreed with the party line.

Under the U.S. Constitution and case law, the government is not only barred from directly interfering with speech on the basis of content, but it is also prohibited from inducing or coercing private entities, such as social networks, to do so. The Supreme Court has spoken on this.

The plaintiffs contend that this is precisely what the defendants did during the pandemic through "express and implied threats" against the social networks, including the threat of antitrust action and the threat to withdraw the protection provided by Section 230 of the Communications Decency Act, which immunizes the platforms from liability for what participants post. 

NCLA says:

Government-induced censorship is achieved through a wide variety of mechanisms, ranging from complete bans, temporary bans, “shadow bans” (where often neither the user nor his audience is notified of the suppression of speech), deboosting, de-platforming, de-monetizing, restricting access to content, requiring users to take down content, and imposing warning labels that require click-through to access content, among others. These methods also include temporary and permanent suspensions of disfavored speakers.

This sort of censorship, which strikes at the heart of what the First Amendment to the U.S. Constitution was designed to protect—free speech, especially political speech—constitutes unlawful government action. The federal government is deciding whose voices and ideas may be heard, and whose voices and ideas must be silenced. Moreover, this state action deprives Americans of their right to hear the views of those who are being silenced, a First Amendment corollary of the right to free speech.

The lawsuit seeks no monetary damages, but it asks the court to declare that the plaintiffs acted illegally. It also asks the court to

Preliminarily and permanently enjoin Defendants, their officers, officials, agents, servants, employees, attorneys, and all persons acting in concert or participation with them, from taking any steps to demand, urge, pressure, or otherwise induce any social-media platform to censor, suppress, de-platform, suspend, shadow-ban, de-boost, restrict access to content, or take any other adverse action against any speaker, content or viewpoint expressed on social media.

Going further, we must demand an end to the government-university-science complex, which puts a heavy political thumb on the scale of scientific debate without which the truth cannot be ascertained. As the complaint states, "Yesterday’s 'misinformation' often becomes today’s viable theory and tomorrow’s established fact.... This prediction has proven true, again and again, when it comes to suppressing 'misinformation' and 'disinformation' on social media." (The complaint notes other examples of similar reversals despite official government efforts, including the Hunter Biden laptop story and the Wuhan lab-leak theory of the coronavirus's origins. These once-belittled accounts either have been confirmed, as with the laptop story, or have achieved reasonable credibility if not confirmation, as with the lab-leak theory.)

Government officials must not be permitted to suppress, directly or indirectly, public-health and other sorts of claims they disagree with. Officials of course can say what they believe are the facts, but they must not attempt to smear, marginalize, and silence dissenters. The very act of financing scientific research is prejudicial because of the stamp of exclusive legitimacy it implies. As the pandemic illustrates, a truly free marketplace of ideas is literally a matter of life and death.

TGIF: Why Can't You Shout "Fire!" in the Virtual Public Square?

Almost 10 years ago the free-speech champion Trevor Timm, with the Electronic Frontier Foundation at the time and now with the Free of the Press Foundation, implored readers "to stop using the ‘fire in a crowded theater’ quote" to justify limits on free expression. Many people apparently need a reminder.

Timm wrote, "[Supreme Court Justice Oliver Wendell] Holmes [Jr.'s]' quote has become a crutch for every censor in America, yet the quote is wildly misunderstood." To dispel the misunderstanding, Timm told the story behind the quotation.

The Court opinion containing the quote is from Schenck v. United States (1919), a notorious anti-free-speech case in which Charles Schenck and Elizabeth Baer had been convicted and sentenced to six months in prison during World War I under the federal Espionage Act for mailing 15,000 pamphlets urging soon-to-be-drafted men "not [to] submit to intimidation" and to "Assert your rights." The pamphlet did not advocate violent resistance but stated that the draft violated the 13th Amendment, which bans slavery.

The Court ruled unanimously against the defendants on the grounds that distributing the material was a "clear and present danger" during wartime. Holmes noted that the pamphlet would have been constitutionally protected in peacetime, but in 1917 the rules were different. To emphasize the point, Holmes wrote, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

Schenck stood as a precedent until 1969, when it was overturned in Brandenburg v. Ohio. Nevertheless, Holmes's trope is wheeled out today against almost anyone who expresses concern about the limitations on the free exchange of ideas on social networks, especially when the controversy concerns criticism of any aspect of "wokeism," for example, the ideologies underpinning "anti-racism" and "trans-genderism." If someone publicly expresses uneasiness at people being suspended from or kicked off social-media platforms for innocuous posts that come nowhere near threatening or inciting violence, the other side will likely quote Holmes to justify the punishment.

It should be too obvious to have to point out that Holmes's dictum is irrelevant to such episodes. Before we get to that, however, let's put on this on the record: although they may be under great government pressure to crack down on certain real or alleged misinformation and disinformation, the social-media platforms are private companies with the right to set their terms of use. But that does not mean having a low bar for expulsion is a good policy. Social networking, to the extent it is to have political value, ought to be an open forum. Kicking people off even for lying about election results or (justifiably) criticizing rules about permissible pronouns is not only obnoxious; it also makes a mockery of what the platforms themselves say they aspire to be.

With that out of the way, we can move on to the main course. None of the targets to which Holmes's trope is aimed bears any resemblance to the literal case of falsely shouting fire in a theater. We can break this down into two parts.

The first concerns the unreasonable shouting of anything, even "Chocolate!" in a theater, crowded or not. If I buy a ticket to a concert, play, or movie, I have at least an implicit contract with the theater owner that I will not disrupt the show (without a darn good reason) and spoil it for the other patrons. If that contractual term were not assumed, the owner would be defrauding all the customers. Would you buy a ticket to a show knowing that anyone in the audience was permitted to make noise?

Just as I cannot eat in a restaurant and refuse to pay by claiming that I never explicitly agreed to pay for the meal, so I cannot make a ruckus in a theater on grounds that I never agreed not to do so. We can go further and point out, as Murray Rothbard did, that even the theater owner may not unreasonably disrupt the show without violating the contract with his customers:  If he does, "He has thus welshed on this contractual obligation, in violation of the property rights of his patrons."

Rothbard's point is that freedom of speech is not some free-floating right. To make sense it must be rooted in property rights. No one has a right to make a speech in your living room without an invitation. The corollary, he points out, is that so-called public, that is, government-controlled, land presents insoluble conflicts. When demonstrators want to block a busy street during rush hour, whose rights should prevail: theirs or the drivers'.

As I say, this goes for any shouting. But let's move on to the issue of content. Falsely shouting fire adds potential injury or death to the insult because the patrons do not have the luxury of checking out the shouter's claim. Maybe it's a false alarm, but waiting to find out could cost them their lives. Obviously, if the shouter knows the place is on fire, he's done his fellow patrons a favor.

How does this relate to social media? Nothing anyone can say on Twitter can compare to the potentially deadly disruption that would occur with a false shouting of fire in a theater. Even if Donald Trump tweets a million times a day -- falsely -- that his landslide reelection in 2020 was stolen from him, the mechanism for harm just is not present. No one reading Trump's tweets, as obnoxious as they would be, would have to rush out of wherever he is merely to save his life and possibly endanger others as he does so. It's simply ridiculous to compare the two situations.

A tweet might offend people -- if they choose to take offense -- or it might hurt someone's feelings. But let's get real: that bears no resemblance to endangerment. But what if someone else reads the tweet and then feels motivated to commit violence? That person is an aggressor who is fully responsible for his actions. He must not be permitted to plead that the tweet caused or incited him to commit violence. He is an agent.

Rigid controls on social media cannot be justified on "clear and present danger" grounds. In other words, it's impossible to shout "Fire!" on social media, and we are justified in criticizing platform owners who insist on punishing their guests for what they say. It's easy enough to avoid your fellow guests whom you find obnoxious.

So let's finally put Holmes's trope to rest. It has no power to justify restrictions on expression that does not directly and immediately endanger others.

TGIF: Easy Cases May Make Bad Rules

Hard cases make bad law, an adage apparently coined before 1837 tells us. In other words, "an extreme case is a poor basis for a general law that would cover a wider range of less extreme cases." Not everyone has agreed that this is the case, but we'll let that go. I just want to point out that easy cases also may make bad law, or at least bad rules.

Take the question of whether social networks should kick people off for saying things that other people find discomfiting, offensive, or "threatening" (with that word being used extremely loosely, having nothing to do with a physical threat). Leave aside that the networks are privately owned, however ominously close they may be to certain powerful politicians. I'm not talking about property rights here. That you have a right to do something does not mean that you ought to do it.

Is it generally desirable that Facebook, Twitter, and the rest don't operate on a complete "come one, come all" basis?  Many people say yes; they want to be assured that no one will enter their range of vision who will make them uncomfortable in one way or another. True, social-networking participants already can exclude participants they don't wish to see from their range of vision. But some want more than that: they want to keep everyone else from seeing the "offensive" participants.

But others think that having a very low bar, if any at all, for excluding participants undercuts the very point of social networking, the value of which lies in the easy availability of the widest range of opinions, analyses, and reporting of events. They relish free-wheeling conversation about anything while accepting the trade-off that some real jerks will make their unpleasant presence known. Those who favor a liberal admittance policy are satisfied with being able to block or ignore participants whom they find annoying or worse.

Considering the powerful practical case for free speech that John Stuart Mill put forth in On Liberty, it seems that erring on the side of liberal criteria in the social networks is the best way to go. Even jerks who are wrong about a matter can have something of value to say. A flawed criticism or an overlooked fact may prompt a worthwhile refinement of an already basically sound position.

Mill summed up his views when he wrote, "He who knows only his own side of the case, knows little of that." He went on:

His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion. The rational position for him would be suspension of judgment, and unless he contents himself with that, he is either led by authority, or adopts, like the generality of the world, the side to which he feels most inclination. Nor is it enough that he should hear the arguments of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. That is not the way to do justice to the arguments, or bring them into real contact with his own mind. He must be able to hear them from persons who actually believe them; who defend them in earnest, and do their very utmost for them. He must know them in their most plausible and persuasive form; he must feel the whole force of the difficulty which the true view of the subject has to encounter and dispose of; else he will never really possess himself of the portion of truth which meets and removes that difficulty. [Emphasis added.]

I find that an unanswerable argument, though obviously I am committed to hearing the best arguments against it. Notice that Mill endorsed the principle of charity in writing that we should hear the strongest case from its own advocates and not from critics. That's called "steel-manning" these days in opposition to "straw-manning."

Now an obvious problem arises that relates to scarcity. No one has enough time to seek out and consume every bit of criticism of every position they hold. So we each have to pick and choose according to our priorities, doing the best we can with what we have.

However, none of that justifies restrictions on what a free-wheeling forum promises to be. Someone might challenge this view by asking what's wrong with excluding someone who does little more than threaten people with violence or ladle out disgusting slurs of one kind or another. To which I would respond that I wouldn't be upset if a person who presents such an easy case were excluded. (The criminal law already addresses specific threats to identifiable persons.) But caution is in order. The slippery slope is real, so it's not only easy-case people who are at risk. It's also purveyors of alleged misinformation. Of course some stuff posted deserves that label, but it has also been applied to maverick opinions and factual accounts voiced by qualified people merely because their views clash with the position of government-anointed experts (who have their own agendas). Whether the social-network bigwigs believe in what they are doing or they just want to curry favor with the powerful, who needs that? Easy cases can indeed make bad rules.

At any rate, why should we have confidence that the people in charge of the social networks or their algorithms will confine their expulsions to only the most egregious cases? We already know better. What did Lord Acton say about power again? It goes for private power too.

What we must do is oppose government intervention because the politicians and regulators will likely defer to the corporate incumbents, and that means market entry will become even more difficult than it already is for innovative upstart competitors. The ideal is a wide range of choices so people who want no-holds-barred social networking can find it and those who want tamer environments can also have their way. Since people have different tastes, the market can have many winners.