Congress Escalates Pressure on Tech Giants to Censor More, Threatening the
First Amendment
In their zeal for control over online speech, House Democrats are getting
closer and closer to the constitutional line, if they have not already
crossed it.
Glenn Greenwald
Feb 20
CEO of Twitter Jack Dorsey (R) and Facebook COO Sheryl Sandberg (L) are
sworn in to testify before the Senate Intelligence Committee on Capitol Hill
in Washington, DC, on September 5, 2018. (Photo by Jim WATSON / AFP) (Photo
credit should read JIM WATSON/AFP via Getty Images)
For the third time in less than five months, the U.S. Congress has summoned
the CEOs of social media companies to appear before them, with the explicit
intent to pressure and coerce them to censor more content from their
platforms. On March 25, the House Energy and Commerce Committee will
interrogate Twitter's Jack Dorsey, Facebooks's Mark Zuckerberg and Google's
Sundar Pichai at a hearing which the Committee announced will focus "on
misinformation and disinformation plaguing online platforms."
The Committee's Chair, Rep. Frank Pallone, Jr. (D-NJ), and the two Chairs of
the Subcommittees holding the hearings, Mike Doyle (D-PA) and Jan Schakowsky
(D-IL), said in a joint statement that the impetus was "falsehoods about the
COVID-19 vaccine" and "debunked claims of election fraud." They argued that
"these online platforms have allowed misinformation to spread, intensifying
national crises with real-life, grim consequences for public health and
safety," adding: "This hearing will continue the Committee's work of holding
online platforms accountable for the growing rise of misinformation and
disinformation."
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House Democrats have made no secret of their ultimate goal with this
hearing: to exert control over the content on these online platforms.
"Industry self-regulation has failed," they said, and therefore "we must
begin the work of changing incentives driving social media companies to
allow and even promote misinformation and disinformation." In other words,
they intend to use state power to influence and coerce these companies to
change which content they do and do not allow to be published.
I've written and spoken at length over the past several years about the
dangers of vesting the power in the state, or in tech monopolies, to
determine what is true and false, or what constitutes permissible opinion
and what does not. I will not repeat those points here.
Instead, the key point raised by these last threats from House Democrats is
an often-overlooked one: while the First Amendment does not apply to
voluntary choices made by a private company about what speech to allow or
prohibit, it does bar the U.S. Government from coercing or threatening such
companies to censor. In other words, Congress violates the First Amendment
when it attempts to require private companies to impose viewpoint-based
speech restrictions which the government itself would be constitutionally
barred from imposing.
It may not be easy to draw where the precise line is - to know exactly when
Congress has crossed from merely expressing concerns into unconstitutional
regulation of speech through its influence over private companies - but
there is no question that the First Amendment does not permit indirect
censorship through regulatory and legal threats.
Ben Wizner, Director of the ACLU's Speech, Privacy, and Technology Project,
told me that while a constitutional analysis depends on a variety of factors
including the types of threats issued and how much coercion is amassed, it
is well-established that the First Amendment governs attempts by Congress to
pressure private companies to censor:
For the same reasons that the Constitution prohibits the government from
dictating what information we can see and read (outside narrow limits), it
also prohibits the government from using its immense authority to coerce
private actors into censoring on its behalf.
In a January Wall Street Journal op-ed, tech entrepreneur Vivek Ramaswamy
and Yale Law School's constitutional scholar Jed Rubenfeld warned that
Congress is rapidly approaching this constitutional boundary if it has not
already transgressed it. "Using a combination of statutory inducements and
regulatory threats," the duo wrote, "Congress has co-opted Silicon Valley to
do through the back door what government cannot directly accomplish under
the Constitution."
That article compiled just a small sample of case law making clear that
efforts to coerce private actors to censor speech implicate core First
Amendment free speech guarantees. In Norwood v. Harrison (1973), for
instance, the Court declared it "axiomatic" - a basic legal principle - that
Congress "may not induce, encourage or promote private persons to accomplish
what it is constitutionally forbidden to accomplish." They noted: "For more
than half a century courts have held that governmental threats can turn
private conduct into state action."
In 2018, the ACLU successfully defended the National Rifle Association (NRA)
in suing Gov. Andrew Cuomo and New York State on the ground that attempts of
state officials to coerce private companies to cease doing business with the
NRA using implicit threats - driven by Cuomo's contempt for the NRA's
political views - amounted to a violation of the First Amendment. Because,
argued the ACLU, the communications of Cuomo's aides to banks and insurance
firms "could reasonably be interpreted as a threat of retaliatory
enforcement against firms that do not sever ties with gun promotion groups,"
that conduct ran afoul of the well-established principle "that the
government may violate the First Amendment through 'action that falls short
of a direct prohibition against speech,' including by retaliation or threats
of retaliation against speakers." In sum, argued the civil liberties group
in reasoning accepted by the court:
Courts have never required plaintiffs to demonstrate that the government
directly attempted to suppress their protected expression in order to
establish First Amendment retaliation, and they have often upheld First
Amendment retaliation claims involving adverse economic action designed to
chill speech indirectly.
In explaining its rationale for defending the NRA, the ACLU described how
easily these same state powers could be abused by a Republican governor
against liberal activist groups - for instance, by threatening banks to
cease providing services to Planned Parenthood or LGBT advocacy groups. When
the judge rejected Cuomo's motion to dismiss the NRA's lawsuit, Reuters
explained the key lesson in its headline:
Perhaps the ruling most relevant to current controversies occurred in the
1963 Supreme Court case Bantam Books v. Sullivan. In the name of combatting
the "obscene, indecent and impure," the Rhode Island legislature instituted
a commission to notify bookstores when they determined a book or magazine to
be "objectionable," and requested their "cooperation" by removing it and
refusing to sell it any longer. Four book publishers and distributors sued,
seeking a declaration that this practice was a violation of the First
Amendment even though they were never technically forced to censor. Instead,
they ceased selling the flagged books "voluntarily" due to fear of the
threats implicit in the "advisory" notices received from the state.
In a statement that House Democrats and their defenders would certainly
invoke to justify what they are doing with Silicon Valley, Rhode Island
officials insisted that they were not unconstitutionally censoring because
their scheme "does not regulate or suppress obscenity, but simply exhorts
booksellers and advises them of their legal rights."
In rejecting that disingenuous claim, the Supreme Court conceded that "it is
true that [plaintiffs'] books have not been seized or banned by the State,
and that no one has been prosecuted for their possession or sale."
Nonetheless, the Court emphasized that Rhode Island's legislature - just
like these House Democrats summoning tech executives - had been explicitly
clear that their goal was the suppression of speech they disliked: "the
Commission deliberately set about to achieve the suppression of publications
deemed 'objectionable,' and succeeded in its aim." And the Court emphasized
that the barely disguised goal of the state was to intimidate these private
book publishers and distributors into censoring by issuing implicit threats
of punishment for non-compliance:
It is true, as noted by the Supreme Court of Rhode Island, that [the book
distributor] was "free" to ignore the Commission's notices, in the sense
that his refusal to "cooperate" would have violated no law. But it was found
as a fact -- and the finding, being amply supported by the record, binds us
-- that [the book distributor's] compliance with the Commission's directives
was not voluntary. People do not lightly disregard public officers' thinly
veiled threats to institute criminal proceedings against them if they do not
come around, and [the distributor's] reaction, according to uncontroverted
testimony, was no exception to this general rule. The Commission's notices,
phrased virtually as orders, reasonably understood to be such by the
distributor, invariably followed up by police visitations, in fact stopped
the circulation of the listed publications ex proprio vigore [by its own
force]. It would be naive to credit the State's assertion that these
blacklists are in the nature of mere legal advice when they plainly serve as
instruments of regulation.
In sum, concluded the Bantam Books Court: "their operation was in fact a
scheme of state censorship effectuated by extra-legal sanctions; they acted
as an agency not to advise but to suppress."
________________________________________
Little effort is required to see that Democrats, now in control of the
Congress and the White House, are engaged in a scheme of speech control
virtually indistinguishable from those long held unconstitutional by decades
of First Amendment jurisprudence. That Democrats are seeking to use their
control of state power to coerce and intimidate private tech companies to
censor - and indeed have already succeeded in doing so - is hardly subject
to reasonable debate. They are saying explicitly that this is what they are
doing.
Because "big tech has failed to acknowledge the role they've played in
fomenting and elevating blatantly false information to its online
audiences," said the Committee Chairs again summoning the social media
companies, "we must begin the work of changing incentives driving social
media companies to allow and even promote misinformation and
disinformation."
The Washington Post, in reporting on this latest hearing, said the Committee
intends to "take fresh aim at the tech giants for failing to crack down on
dangerous political falsehoods and disinformation about the coronavirus."
And lurking behind these calls for more speech policing are pending
processes that could result in serious punishment for these companies,
including possible antitrust actions and the rescission of Section 230
immunity from liability.
This dynamic has become so common that Democrats now openly pressure Silicon
Valley companies to censor content they dislike. In the immediate aftermath
of the January 6 Capitol riot, when it was falsely claimed that Parler was
the key online venue for the riot's planning - Facebook, Google's YouTube
and Facebook's Instagram were all more significant - two of the most
prominent Democratic House members, Rep. Alexandria Ocasio-Cortez (D-NY) and
Rep. Ro Khanna (D-CA), used their large social media platforms to insist
that Silicon Valley monopolies remove Parler from their app stores and
hosting services:
Within twenty-four hours, all three Silicon Valley companies complied with
these "requests," and took the extraordinary step of effectively removing
Parler - at the time the most-downloaded app on the Apple Store - from the
internet. We will likely never know what precise role those tweets and other
pressure from liberal politicians and journalists played in their decisions,
but what is clear is that Democrats are more than willing to use their power
and platforms to issue instructions to Silicon Valley about what they should
and should not permit to be heard.
Leading liberal activists and some powerful Democratic politicians, such as
then-presidential-candidate Kamala Harris, had long demanded former
President Donald Trump's removal from social media. After the Democrats won
the White House - indeed, the day after Democrats secured control of both
houses of Congress with two wins in the Georgia Senate run-offs - Twitter,
Facebook and other online platforms banned Trump, citing the Capitol riot as
the pretext.
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While Democrats cheered, numerous leaders around the world, including many
with no affection for Trump, warned of how dangerous this move was.
Long-time close aide of the Clintons, Jennifer Palmieri, posted a viral
tweet candidly acknowledging - and clearly celebrating - why this censorship
occurred. With Democrats now in control of the Congressional committees and
Executive Branch agencies that regulate Silicon Valley, these companies
concluded it was in their best interest to censor the internet in accordance
with the commands and wishes of the party that now wields power in
Washington:
Jennifer Palmieri @jmpalmieri
It has not escaped my attention that the day social media companies decided
there actually IS more they could do to police Trump's destructive behavior
was the same day they learned Democrats would chair all the congressional
committees that oversee them.
January 7th 2021
32,660 Retweets157,856 Likes
The last time CEOs of social media platforms were summoned to testify before
Congress, Sen. Ed Markey (D-MA) explicitly told them that what Democrats
want is more censorship - more removal of content which they believe
constitutes "disinformation" and "hate speech." He did not even bother to
hide his demands: "The issue is not that the companies before us today are
taking too many posts down; the issue is that they are leaving too many
dangerous posts up":
When it comes to censorship of politically adverse content, sometimes
explicit censorship demands are unnecessary. Where a climate of censorship
prevails, companies anticipate what those in power want them to do by
anticipatorily self-censoring to avoid official retaliation. Speech is
chilled without direct censorship orders being required.
That is clearly what happened after Democrats spent four years petulantly
insisting that they lost the 2016 election not because they chose a deeply
disliked nominee or because their neoliberal ideology wrought so much misery
and destruction, but instead, they said, because Facebook and Twitter
allowed the unfettered circulation of incriminating documents hacked by
Russia. Anticipating that Democrats were highly likely to win in 2020, the
two tech companies decided in the weeks before the election - in what I
regard as the single most menacing act of censorship of the last decade - to
suppress or outright ban reporting by The New York Post on documents from
Hunter Biden's laptop that raised serious questions about the ethics of the
Democratic front-runner for president. That is a classic case of
self-censorship to please state officials who wield power over you.
________________________________________
All of this raises the vital question of where power really resides when it
comes to controlling online speech. In January, the far-right commentator
Curtis Yarvin, whose analysis is highly influential among a certain sector
of Silicon Valley, wrote a provocative essay under the headline "Big tech
has no power at all." In essence, he wrote, Facebook as a platform is
extremely powerful, but other institutions - particularly the
corporate/oligarchical press and the government - have seized that power
from Zuckerberg, and re-purposed it for their own interests, such that
Facebook becomes their servant rather than the master:
However, if Zuck is subject to some kind of oligarchic power, he is in
exactly the same position as his own moderators. He exercises power, but it
is not his power, because it is not his will. The power does not flow from
him; it flows through him. This is why we can say honestly and seriously
that he has no power. It is not his, but someone else's.
Why doth Zuck ban shitlords? Is the creator of "Facemash" passionately
committed to social justice? Well, maybe. He may have no power, but he is
still a bigshot. Bigshots often do get religion in later life-especially
when everyone around them is getting it. But-does he have a choice? If he
has no choice-he has no power.
For reasons not fully relevant here, I don't agree entirely with that
paradigm. Tech monopolies have enormous amounts of power, sometimes greater
than nation-states themselves. We just saw that in Google and Facebook's
battles with the entire country of Australia. And they frequently go to war
with state efforts to regulate them. But it is unquestionably true that
these social media platforms - which set out largely for reasons of
self-interest and secondarily due to a free-internet ideology - have had the
censorship obligation foisted upon them by a combination of corporate media
outlets and powerful politicians.
One might think of tech companies, the corporate media, the U.S. security
state, and Democrats more as a union - a merger of power - rather than
separate and warring factions. But whatever framework you prefer, it is
clear that the power of social media companies to control the internet is in
the hands of government and its corporate media allies at least as much as
it is in the hands of the tech executives who nominally manage these
platforms.
And it is precisely that reality that presents serious First Amendment
threats. As the above-discussed Supreme Court jurisprudence demonstrates,
this form of indirect and implicit state censorship is not new. Back in
2010, the war hawk Joe Lieberman abused his position as Chairman of the
Senate Armed Services Committee to "suggest" that financial services and
internet hosting companies such as Visa, MasterCard, Paypal, Amazon and Bank
of America, should terminate their relationship with WikiLeaks on the ground
that the group, which was staunchly opposed to Lieberman's imperialism and
militarism, posed a national security threat. Lieberman hinted that they may
face legal liability if they continued to process payments for WikiLeaks.
Unsurprisingly, these companies quickly obeyed Lieberman's decree,
preventing the group from collecting donations. When I reported on these
events for Salon, I noted:
That Joe Lieberman is abusing his position as Homeland Security Chairman to
thuggishly dictate to private companies which websites they should and
should not host -- and, more important, what you can and cannot read on the
Internet -- is one of the most pernicious acts by a U.S. Senator in quite
some time. Josh Marshall wrote yesterday: "When I'd heard that Amazon had
agreed to host Wikileaks I was frankly surprised given all the fish a big
corporation like Amazon has to fry with the federal government." That's
true of all large corporations that own media outlets -- every one -- and
that is one big reason why they're so servile to U.S. Government interests
and easily manipulated by those in political power. That's precisely the
dynamic Lieberman was exploiting with his menacing little phone call to
Amazon (in essence: Hi, this is the Senate's Homeland Security Committee
calling; you're going to be taking down that WikiLeaks site right away,
right?). Amazon, of course, did what they were told.
(Along with Daniel Ellsberg, Laura Poitras and others, I co-founded the
Freedom of the Press Foundation in part to collect donations on behalf of
WikiLeaks to ensure that the government could never again shut down press
groups that it disliked through such pressure campaigns and implicit
threats, precisely because it was so clear that this indirect means of
attacking press freedom was dangerous and unconstitutional).
What made Lieberman's implicit threats in the name of "national security" so
despotic was that they were clearly intended to punish and silence a group
working against his political agenda. And that is precisely true of the
motives of these House Democrats in demanding greater censorship in the name
of combating "misinformation" and "hate speech": their demands almost
always, if not always, mean silencing those who are opposed to their
ideology and political agenda. As but one example: one is perfectly free to
opine online, as many Democrats do, that the 2000, 2004 and 2016
presidential elections (won by Republicans) were the by-products of
electoral fraud, but making that same claim about the 2020 election (won by
a Democrat) will result in immediate banning.
The power to control the flow of information and the boundaries of
permissible speech is a hallmark of an authoritarian regime. It is a power
as intoxicating as it is menacing. When it comes to the internet, our
primary means of communicating with one another, that power nominally rests
in the hands of private corporations in Silicon Valley.
But increasingly, the Democratic-controlled government and their allies in
the corporate media are realizing that they can indirectly and through
coercion seize and wield that power for themselves. The First Amendment is
implicated by these coercive actions as much as if Congress enacted laws
explicitly mandating censorship of their political opponents.
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