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The Constitution does not allow government-sanctioned censorship

Erin Hawley | But the Disinformation Governance Board appears designed to do just that


Nina Jankowicz Twitter/@wiczipedia

The Constitution does not allow government-sanctioned censorship
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The U.S. Department of Homeland Security recently announced it would roll out a Disinformation Governance Board. It was so widely condemned that DHS decided to downgrade it to a so-called “working group.” But during a congressional hearing, the secretary of homeland security doubled down on the need for government truth police, refusing to disavow the board and arguing instead that it would provide “a very important function.”

The Disinformation Governance Board—now the working group—is tasked with targeting whatever the government deems misinformation. Former White House press secretary Jen Psaki described the new initiative as intended “to prevent disinformation and misinformation from traveling around the country in a range of communities.”

But the devil is in the details. The Biden administration’s statements do not describe the group’s, enforcement authority or provide insight into how precisely it will go after misinformation. How will it define misinformation? What will happen to that misinformation or to the people who repeat it? And most importantly, why is the government in the business of ferreting out truth? The very idea of such a board should give one pause.

At the outset, something is unsettling about tasking DHS with the “very important function“ of addressing misinformation. DHS hasn’t always existed—it is a superagency of sorts created after 9/11 to combat terrorism. It is now the third-largest Cabinet agency, boasting more than 250,000 employees, with tentacles reaching into 20 different federal agencies. And now, we are told, it is coming after disinformation.

The government does not have the power to unify opinion. Such a power would destroy the independence, creativity, and boldness that has come to define American thought, culture, and debate.

Further, the administration’s choice of Nina Jankowicz to lead the new initiative suggests there is ample reason to be wary. The self-proclaimed “Mary Poppins of disinformation” has a long history of supporting censorship. She recently told NPR, “I shudder to think about if free speech absolutists were taking over more platforms, what that would look like for the marginalized communities.” As if this weren’t enough, her viral TikTok video announcing her job as speech czar seems to suggest that the board should operate domestically and even go after members of Congress and media outlets. This betrays a shocking disregard for the Constitution and its triple protections for free speech, freedom of the press, and congressional speech and debate.

But truth be told, the working group’s new executive director doesn’t seem much to care about constitutional protections for free speech. She has claimed that the conflict between free speech and censorship is “a false dichotomy”—notwithstanding that the First Amendment to the Constitution clearly protects free speech and disallows government censorship. And she has argued that Big Tech and government should partner using “technological prowess” to cancel speech and “make a pariah of online misogyny.”

Misogyny, online or otherwise, is wrong. But you can condemn something without demanding it should be censored. Those who support such censorship by the government are forgetting the free speech legacy of justices like Oliver Wendell Holmes Jr. and Louis Brandeis. Those justices famously argued that where government disagrees with speech, “the remedy to be applied is more speech, not enforced silence.” As the Supreme Court has explained, those who fought for our independence “had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political and economic truth.” In short, the government does not have the power to unify opinion. Such a power would destroy the independence, creativity, and boldness that has come to define American thought, culture, and debate.

The Disinformation Governance Board (or whatever DHS calls it) is based on the idea that the government should censor and suppress speech with which it disagrees. The First Amendment, however, prohibits the government from doing just that. Many of our forefathers fled England to escape laws that punished dissent, and thus the ratifiers of our Constitution insisted on the addition of the First Amendment, which prohibits the government from passing any law abridging the freedom of speech. The Disinformation Governance Board needs more than a name change. The government should not be in the business of censoring public information at all.


Erin Hawley

Erin Hawley is a wife, mom of three, senior appellate counsel at Alliance Defending Freedom, senior legal fellow at the Independent Women’s Law Center, and former law professor.

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