We ignore laws. It’s what America does. With this in mind, our government has moved past censorship to the larger project of changing the American personality. They want a more obedient, timorous, fearful citizen. Their tool is the internet, a vast machine for doling out reward and punishment through likes and views, shaming or deamplification. The mechanics are complicated, but the core concept is simple: You’re upranked for accepting authority, downranked for questioning it, with questions of any kind increasingly viewed as a form of disinformation.

If there was one disappointment out of the US Supreme Court in 2024 it was around the issue of defending free speech, specifically the 1st Amendment’s protection of such. As can be seen from the above NYT headline, both are under a greater threat than at any time since President Woodrow Wilson’s infamous crackdowns during WWI – from all quarters including the judiciary up to SCOTUS and, judging by that NYT headline, now the MSM, after decades of proclaiming how important it is.

You might think SCOTUS would be immune to this, having famously rolled back the Wilson-era censorship in the 1960’s, something then cheered by the Left, including the Far Left:

Under well-established First Amendment law, Americans have a right not only to engage in free speech, but a corollary right to listen to speech, including from foreign sources. 

At the height of the Cold War, the 1965 case of Lamont v. Postmaster General, struck down a federal statute directing the Postmaster General to seize “communist political propaganda” that “is printed or otherwise prepared in a foreign country,” to notify the addressee of its source, and to deliver it only upon the recipient’s request…. the Supreme Court held that the “limitation on the unfettered exercise of the addressee’s First Amendment rights” to be “at war with the ‘uninhibited, robust, and wide-open’ debate and discussion contemplated by the First Amendment.”

We’ve fallen a long way since then and the reality is that the thinking described in the following story is lurking in the court, awaiting only the death of Justices Alito and Thomas to put it in control.

In 2024 the state of Missouri challenged the Biden Administration over its efforts to coerce social media platforms into banning opinions and users who disagreed with a government policy, starting with the Covid-19 responses. As US District Court Judge Terry Doughty said about the Missouri v. Biden case he was looking at, it was “The most massive attack against free speech in United States’ history”. But when this case landed before the Supreme Court (and had a name change to Murthy v. Missouri) it encountered this from one of the “Liberal” justices appointed by Joe Biden, Justice Kentanji Brown Jackson:

My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time period.

There’s more at the link (including audio) as she asks (argues) that “hamstringing” the government on this matter would be dangerous when the government has a duty to take steps to protect the citizens.

AYFKM? If the entire federal government can’t make its voice heard and has to rely on suppressing free speech, then the government should be dumped in the rubbish bin. As far as the Covid-19 era is concerned Federal speech did more damage to more people than non-government speech, and in any case just because the government has something useful to say that doesn’t mean they have the right to silence other people.

Also, the government could make exactly the same arguments on any other issue it chose to weigh in on: illegal immigration, gun rights, foreign policy, healthcare, anything. Each time would be the same claim, the government has a compelling interest in everyone hearing its position without being challenged.

They pulled the same shite against Facebook, first with an ordinary person who had dared to write something snarky about the vaccines:

In an April 2021 email, Nick Clegg, Facebook’s president for global affairs, wrote to colleagues that Andy Slavitt, a senior adviser to Biden who was steering COVID-19 policy, “was outraged — not too strong a word to describe his reaction — that [Facebook] did not remove this post.”

The post was a meme shared by a user named Timothy McComas that featured actor Leonardo DiCaprio’s character from the film “Once Upon a Time in Hollywood” pointing at his TV with a beer and cigarette in hand. The image was captioned: “10 years from now you will be watching TV and hear…. ‘Did you or a loved one take the covid vaccine? You may be entitled…’”

“Ridicule is man’s most potent weapon”, or so some Far Lefter POS once said, and the State knows it. Clegg pushed back hard on that one, but the Biden Administration was not deterred. Their next target was prominent Fox news commentator, Tucker Carlson:

Here is an email from White House Digital Director Rob Flaherty telling Facebook to censor Tucker Carlson and Tomi Lahren:

“Since we’ve been on the phone – the top post about vaccines today is tucker Carlson saying they don’t work. Yesterday it was Tomi Lehren saying she won’t take one. This is exactly why I want to know what “Reduction” actually looks like – if “reduction” means “pumping our most vaccine hesitant audience with tucker Carlosn saying it doesn’t work” then… I’m not sure its reduction.”

Facebook lept to attention because in just days they’d become more aware of the consequences if they did not obey:

[House Judiciary Chairman Jim Jordan (R-Ohio)] wrote that the company “panicked” and agreed to take some action. Facebook vice president for public policy Brian Rice wrote the same month that Slavitt’s pressure seemed “very much like a crossroads for us with the [Biden] White House in these early days.” [An unidentified Facebook employee replied] “Given what is at stake here, it would also be a good idea if we could regroup and take stock of where we are in our relations with the [White House], and our internal methods too,” 

Understand also that, as journalist Jim Treacher points out, none of this would have been known had Musk not purchased Twitter in 2022 and worked with journalists like Matt Taibbi to publish the Twitter files.

Back on the Supreme Court in 2024 Judge Jackson’s Far Left, un-American view was sadly reinforced when the Court ruled 6-3 that the plaintiffs lacked standing because the Biden White House allegedly backed off of its censorship campaign after the 2022 Midterm elections. The Federal government can therefore continue screwing the First Amendment rights of ordinary Americans by getting social media companies to do what they cannot do directly: police what Americans are allowed to say online.

Unbelievable. No wonder this headline and argument appeared soon after in The Federalist as they issued a wakeup call, The Supreme Court Is Not Going To Save You. They start by pointing out the Congress is too spineless to pass laws against this, even when the GOP is in charge, that the Executive wing is not exactly controlled by the elected President, since this censorship by the CDC and other bureaucracies started in 2020 under President Trump. And so:

No Supreme Court majority is going to save America and rescue the Constitution. That’s only going to happen, if it happens at all, through a second American Revolution and the re-founding of the country. As I’ve argued before, we need to stop calling ourselves conservatives because there is nothing left to conserve. One of the things that means is letting go of the idea that a majority of originalist Supreme Court justices is going to swoop in and undo all tyrannical mechanisms that a century of administrative bureaucracy has built up for the purpose of undermining and destroying our system of government. That’s simply not going to happen. Continuing to wish for it and expect it is a fool’s errand, and if we want to be prepared for what’s coming, we need to be realistic about that.

A similar argument had been made in 2022 by Margot Cleveland and went further in arguing that it wasn’t just the institutions that had failed Americans on this issue but the First Amendment itself, as pointed out by Justice Thomas in another set of Twitter free speech arguments, who argued from the controlling Supreme Court precedent on the issue, Bantam Books, Inc., v. Sullivan:

Although a ‘private entity is not ordinarily constrained by the First Amendment,’ it is if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint….. Consider government threats… People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around….The government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly …. Under this doctrine, plaintiffs might have colorable claims against a digital platform if it took adverse action against them in response to government threats.

The key word there is “threats”. None were issued in that case, where President Trump simply blocked a number of people from his Twitter account. It was the same with the FBI dealing with Twitter and others where a typical FBI missive to them went along these lines:

“Please see below list of Twitter accounts which we believe are violating your terms of service by disseminating false information about the time, place, or manner of the upcoming elections.” In general, the FBI then ended the emails by indicating the FBI had provided the information “for any action or inaction deem[ed] appropriate within Twitter policy.”

See? Cooperation requested, not compliance with coercion. Not a threat.

But the result was still people’s free speech being shut down because of government action:

The First Amendment, as currently interpreted, lacks the strength to stop the censorship and other Stasi-esque goals of the deep state….[requiring] “courts to shift to a model where the government’s mere encouragement of private speech restrictions is enough to constitute a First Amendment violation on the government’s part.” …. But the law is not there yet and may never be.

Moreover, even in cases where federal actors crossed the constitutional line by threatening or otherwise coercing censorship, there is no effective legal recourse. Twitter and other social media outlets may remain silent, either fearing retribution or sharing the government’s objective. If the public even learns of the government’s misconduct later, the harm will be done, as with the FBI’s push for censorship of the Hunter Biden laptop story.

Actually there might be one legal recourse, as proposed by law professor Philip Hamburger, who thinks that a plausible case can be made that the collusion between public and private actors constituted a criminal conspiracy to deprive Americans of their civil rights:

Section 241 of Title 18 of the U.S. Code provides: “If two or more persons conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, . . . they shall be fined under this title or imprisoned not more than ten years, or both.”

Ten years in the clink for Biden officials sounds good to me.

Because the First Amendment doesn’t bar private parties from independently suppressing speech, Section 241 would apply to tech censorship only if government officers, acting as part of a conspiracy, have violated the Constitution. … The type of suppression most clearly barred by the First Amendment was the 17th-century English censorship imposed partly through cooperative private entities—universities and the Stationers’ Company, the printers trade guild.

So this has happened before. The technology may be new but that doesn’t create new loopholes for the State to exploit.

Government remains bound by the First Amendment even when it works through private cutouts. There would be no purpose to a Bill of Rights if government could evade it by using private entities to do its dirty work. As the Supreme Court put it in Frost & Frost Trucking Co. v. Railroad Commission (1926), “It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.”
…
The other main issue in prosecutions under Section 241 is specific intent. But most of the tech companies seem to have the specific intent to work with the government in suppressing speech. A prosecutor wouldn’t have to show that private participants self-consciously understood the unconstitutionality of what the government was doing.

At Facebook they clearly were aware that they were suppressing freedom of speech and it was likely the same at Twitter and other social media sites. As Professor Hamburger bluntly states:

If the gov-tech partnership to suppress speech isn’t a conspiracy to interfere in the enjoyment of the freedom of speech, what is?

We could never expect the Biden DOJ to pursue such action but the Trump DOJ could if the statute of limitations hasn’t run out. Even if there was no conviction it would put future officials on notice, and even then, civil actions could be taken. However, I’ve seen no mention of this from anybody in or near the Trump Administration.

One of the incredible things about all this was that it involved several government agencies. If it wasn’t the CDC it was some other three-letter agency. From What, Exactly, Is the FBI Protecting Us?, points out that the famous 1965 case discussed above (Lamont v. Postmaster General) involved laws that were…

… far more transparent and far more permissive than the various bans, throttling, account deletion, and other sub rosa censorship undertaken by the FBI in collusion with the social media monopolies [in 2020-21]

That article argues that one of the modern drivers against free speech comes from “safety”:

Under the emerging ethos of safety, not only are certain forms of speech deemed beyond the pale—so-called hate speech, for example—but advocates approach the entire ecosphere of speech as something that must be curated and controlled. Implicit in this approach, the public must be vulnerable, fragile, tempestuous, and easily seduced by bad foreign speech. Instead of calling it what it is—ideas we disagree with—they ominously label such speech “disinformation.” 

Which ties in nicely with Justice Jackson’s comment that “I guess some might say that the government has a duty to take steps to protect the citizens of this country.” How mutually supporting these Lefty ideas are. The article also looks at the arguments made about post-war restrictions on free speech placed on Japan and Germany:

But precedents from military occupation are not a good template for our peacetime domestic affairs. We are not emerging from some dark chapter in our history… The idea of a fragile democracy that must be “fortified” [by the FBI] to achieve particular substantive outcomes is, in fact, the opposite of democracy.

When Biden, Pelosi, the FBI, and the social media monopolies say Our Democracy™, the emphasis is always on Our. 

Back to Margot Cleveland, mulling over the inadequacies of the legal system, and concluding that:

In short, current First Amendment jurisprudence cannot solve this serious problem. So the cure rests instead in a revival of the respect due the values underlying the First Amendment—the values of freedom of speech and freedom of the press.

Good luck with that, Democrats now favor oppression and censorship by almost 3 to 1: