No censorship by proxy

Americans love the First Amendment so much that they assume it applies to the behavior of every organization, such as private companies and universities. But the First Amendment begins, as George Will once said, with the five most beautiful words in the English language: “Congress shall make no law.” It governs what Congress can and cannot do and, by extension, this applies to the states as well, through the 14th Amendment. So when people say, “Facebook is violating my First Amendment rights when it takes down my post against vaccines!”—they’re out of luck in law, because the First Amendment doesn’t apply to Facebook.

But what happens when Facebook takes down a post at the government’s behest? What if the White House or the Surgeon General’s office undertakes a “coordinated campaign” of “unrelenting pressure” from officials at the very top asking Facebook or other social media companies to take down certain specific posts or to write their algorithms in a way that catches certain types of post for removal? That’s the question the Supreme Court agreed to decide in the case known as Missouri v. Murthy, a blockbuster lawsuit by several states and several private plaintiffs against various high officials of the government, starting with Surgeon General Vivek Murthy.

The justices have only agreed to hear the case and the decision will not come for months, but three justices gave us an initial impression on the order accepting the case. The court also canceled an emergency injunction barring Murthy and others from communicating with social media companies on certain topics. Justice Samuel Alito, writing for himself, Justice Clarence Thomas, and Justice Neil Gorsuch, expressed his concern at efforts “by high-level federal officials to suppress the expression of disfavored views on important public issues.”

“Government censorship of private speech is antithetical to our democratic form of government,” Justice Alito reasoned, such that the government should not “use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news.”

Of course, three justices are short of a majority on a nine-member court, and we have no way to know what the other justices may be thinking. Nor is the outcome here immediately obvious. Government officials frequently contact private companies and ask them to do this or that thing. They may even lean on them to do so, either in intimate conversations or public reprimands from the presidential podium. How many nationwide strikes, for instance, have been resolved because the president ordered the union and management into a room to cut a deal before shutting down the flow of commerce? Where is the line between that and what the White House did here concerning so-called “misinformation” about COVID-19? Or other examples of government officials engaging these companies on posts related to election integrity?

These are complicated questions, but our love of constitutional liberty produces the answer: The government should not engage in a coordinated, consistent campaign to censor the speech of everyday Americans in private forums. How would we feel if the White House press secretary and chief of staff constantly berated the New York Times and the Washington Post and told them to stop publishing certain letters to the editor on their editorial page? Or called Hillsdale College or the Heritage Foundation every week to go over their guest speakers for the week and express approval or disapproval of each lecturer? We would be rightly outraged.

And we would be doubly outraged if the Times or the Post were concurrently under a high-profile FBI investigation, or if the nonprofit status of Hillsdale College or the Heritage Foundation were simultaneously pending before the director of the Internal Revenue Service. That’s certainly how the social media companies feel as the antitrust organs of government actively investigate and prosecute them, under the supervision of political appointees who report to the same White House that is issuing orders about COVID algorithms.

Ultimately, if the free speech clause of the First Amendment means anything, it must be that the government cannot censor certain viewpoints in the public square—even with coordinated assistance from private companies. And as the Supreme Court said earlier this year in its affirmative action decision, “What cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows.” If the government cannot directly censor speech, it cannot rely on proxies in Silicon Valley to do so at its direction.