Why the Courts Are Failing to Stop Government Censorship

A growing government–corporate partnership in the United States to control what Americans say has established an unprecedented system of censorship that circumvents and undermines the constitutional right to free speech, legal analysts say.

“More Americans are being censored, more speech is being censored and suppressed by government actions, than has ever been the case in the past,” Andrew Grossman, constitutional attorney at BakerHostetler, told attendees at a Cato Institute free-speech conference on Nov. 2.

“But this isn’t primarily the old kind of censorship. We’re not talking about book bans; we’re not talking about other types of traditional restraints on speech or publications. What we’re talking about is a phenomenon that I call ‘government censorship by proxy.’”

The report states, “What the federal government could not do directly, it effectively outsourced to the newly emerging censorship–industrial complex.”

Mr. Jordan wrote on X, formerly Twitter, that “hundreds of secret reports show how the DHS [Department of Homeland Security], CISA [the Cybersecurity and Infrastructure Security Agency], the State Department, Stanford [University], and others worked together to censor Americans before the 2020 election, including true information, jokes, and opinions.”

“The federal government, disinformation ‘experts’ at universities, Big Tech, and others worked together through the Election Integrity Partnership to monitor and censor Americans’ speech,” he wrote.

“The government cannot bypass the First Amendment’s protections by going and asking private companies to censor in ways the government cannot,” Jeremy Tedesco, senior counsel for the Alliance Defending Freedom (ADF), told The Epoch Times. “But that’s what’s going on.

“It’s a very dangerous problem that’s unique to the age we live in, because these massive social media companies own the digital public square. Through the ‘Twitter Files,’ we know the government is monitoring peoples’ posts and recommending, encouraging, and even coercing these companies to take down content that the government disagrees with.”

James Burling, vice president of legal affairs at the Pacific Legal Foundation, said the Biden administration put a “great deal of pressure” on social media companies.

“If you read some of the decisions that came out of the trial court and then the 5th Circuit Court of Appeals, I found it rather appalling,” he told The Epoch Times.

In rendering his opinion against the Biden administration, Judge Doughty cited President Harry Truman: “Once a government is committed to the principle of silencing the voice of opposition, it has only one place to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.”

The Supreme Court has since lifted the district court’s injunction, pending its decision on the case.

New York’s “hate speech” law compels private companies to establish speech codes as an alternative method to state laws doing the same thing. Forcing private companies to set speech codes is a way to circumvent the First Amendment because, as Mr. Burling states, “a social media company, being a private entity, is generally going to be exempt from the First Amendment.”

Daniel Ortner, an attorney at the Foundation for Individual Rights and Expression who is litigating against the New York law, told The Epoch Times that New York claims the law is merely a matter of consumer protection. In fact, he said, it goes well beyond that.

“If you don’t want to have a policy for dealing with what the state defines as hate speech, tough luck, you have to define it, you have to have your definition match their definition, so as to cover the speech they’re referring to, which is very vague,” Mr. Ortner said. “And the other side of it is that the state is then putting pressure on websites to take down content.”

The New York state attorney general’s office “just sent a letter to Rumble, one of our clients, along with other social media platforms over the Israeli–Palestinian conflict, demanding that they reveal their policies and show how they’re taking down speech,” he said.

“These rules are put in place not to protect users from jokes, but to protect preferred narratives from criticism. If it becomes unlawful to mock or criticize the left’s bad ideas, then those ideas don’t have to be defended—they just win by default.

“And if the past couple of years have taught us anything, it’s that bad ideas taken seriously have catastrophic consequences.”

New York has appealed the decision.

Mr. Grossman says it will be difficult for most people who are censored on social media to know or prove that government has pressured a social media company to censor them.

“So much of this activity occurs in the dark, and the people targeted simply have no way of knowing that the government was involved in the decision,” Mr. Grossman said. “Litigation is not and cannot be a silver bullet.”

In addition, he said, it will be difficult to enact laws that bar the government from engaging in censorship by proxy.

“It’s very easy to describe censorship by proxy in the abstract, but it’s very difficult to describe what exactly would be covered by a prohibition,” he said. “As we saw in the evidence for the Twitter Files, the government very rarely makes explicit threats with respect to content removal; sometimes, it simply says, ‘You should be aware of this.’”

“I think it’s essential that the Supreme Court find that it’s illegal for the government to coerce these companies to censor,” Mr. Tedesco said. “But that’s only part of the battle.

“Most of the censorship that’s occurring on these platforms is done because the private companies are enforcing their own policies. They have policies that are ‘hate speech,’ that are ‘intolerance,’ that are ‘hateful conduct,’ and other things that, if the government were to impose those standards as a speech regulation, it would be dead on arrival in front of any federal court under the U.S. Constitution.”

But here, too, efforts to protect free speech may run into roadblocks. Given that private companies aren’t subject to the First Amendment, it may prove difficult to prevent them from setting speech codes on their own, unless they are deemed to be a “public square,” meaning that they are effectively a sole platform for public speech.

That case may be hard to make.

“I am disturbed by the behavior of some of these social media companies,” Mr. Burling said. “But I don’t think they rise to the level of a public square.”

Given the actions by the federal government, some have turned to state laws to protect speech.

“Throughout the history of the Republic, there have always been threats to free speech—things like the Alien and Sedition Acts—and these threats continued through the Cold War, they continued through the Vietnam era, and they’re front and center today with ‘hate speech,’” Mr. Burling said. “But I think our Constitution is robust, and I think our courts are robust enough to continue giving us some protections.

“If they stopped being protective of free speech, then we have some serious problems ahead of us.”