As you’ve no doubt heard since former President Donald Trump filed suit against several social media giants last month, there’s a fine line between an independent corporate entity restricting speech and that entity doing it under government pressure.
The former, notwithstanding serious issues regarding monopoly power and Silicon Valley’s wokeness, isn’t an abrogation of the First Amendment. The latter is.
There are plenty of shades of gray involved, particularly when it involves Democrats that make non-specific threats about revoking privileges like Section 230 if Big Tech doesn’t become much more aggressive in cracking down on speech they don’t like, but it’s rarely a cut-and-dried thing.
I’ll say this much for Democratic New Jersey Sen. Bob Menendez, however: He didn’t leave many questions as to where his comments fell.
The question came on July 20, days after White House press secretary Jen Psaki confirmed the Biden administration had been “flagging” posts it considered to be disinformation.
“We are in regular touch with these social media platforms, and those engagements typically happen through members of our senior staff, but also members of our COVID-19 team, given, as [Surgeon General] Dr. [Vivek] Murthy conveyed, this is a big issue of misinformation, specifically on the pandemic,” Psaki said during a media briefing earlier in the month.
“It’s important to take faster action against harmful posts. As you all know, information travels quite quickly on social media platforms; sometimes it’s not accurate. And Facebook needs to move more quickly to remove harmful, violative posts — posts that will be within their policies for removal often remain up for days. That’s too long. The information spreads too quickly.”
Psaki has now admitted to working with Facebook to censor content related to the pandemic.
It’s not too late to join GETTR. Follow me there. pic.twitter.com/WZZiVbexCL
— Caleb Hull (@CalebJHull) July 15, 2021
This put the administration on thin ice; as Vivek Ramaswamy pointed out in an opinion piece in The Wall Street Journal on July 11, one reason Trump stands an outside chance of winning his lawsuit against Big Tech for abrogating his First Amendment right to free speech is that the tech companies are doing it under duress.
As Ramaswamy wrote, “the Second Circuit held in Hammerhead Enterprises v. Brezenoff (1983) that if government officials’ comments ‘can be reasonably interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request,’ that’s enough to constitute state action. The Ninth Circuit has held that it doesn’t matter if the threats were the ‘real motivating force’ behind the private party’s conduct.
“In Brentwood Academy v. Tennessee Secondary School Athletic Association (2001), the high court held that state action exists if the private party’s conduct results from ‘significant encouragement, either overt or covert,’ or if the private party is a ‘willful participant in joint activity with the State or its agents,’” the piece continued.
Menendez is a lawyer, but apparently isn’t well-read in that part of the law — since, when a reporter from conservative-leaning CNS News asked him, “Should the Biden administration work with Facebook to suppress postings it considers to be vaccine misinformation?” he may as well have been wearing a fake beard and a Santa suit as far as Trump’s legal team was concerned, because he gave them a gift.
“Well, they should, they should — look, misinformation, especially misinformation that can lead to death, is something that the administration should be working with, whether it be Facebook or any other social media entity,” Menendez said.
“Because that misinformation can be deadly, and we have a lot of misinformation where people are relying upon what they read,” he said. “And that reliance is causing people to make judgments that are causing many to get sick and many more will die. So, yes.”
Note what he assented to. It wasn’t just whether or not the White House should encourage Facebook to crack down on COVID misinformation. The exact words were whether they should “work with” the social media giant to “suppress” that information. That’s state-sponsored censorship.
But at least you could go to other forms of social media to have your speech heard, right? Not if Psaki has her way:
PSAKI: If you're banned on one social media platform, you should be banned on other social media platforms. pic.twitter.com/81eOCiRc68
— Townhall.com (@townhallcom) July 16, 2021
“You shouldn’t be banned from one platform and not others if you — for providing misinformation out there,” Psaki said during a back-and-forth with Fox News White House correspondent Peter Doocy earlier this month.
Republicans have taken notice. In letters to Facebook CEO Mark Zuckerberg and Twitter CEO Jack Dorsey on the same day Psaki announced the White House was “flagging problematic posts for Facebook that spread disinformation,” GOP Missouri Sen. Josh Hawley of Missouri sought answers as to what kind of cooperation existed between the government and the social media monopolies.
“This casual admission of collusion — between the state and corporations that have monopolized the flow of information and therefore dictate the terms of service for the public square — is shocking,” Hawley said in a statement.
— Josh Hawley (@HawleyMO) July 15, 2021
“Earlier today, the White House Press Secretary told reporters that the Biden Administration is in ‘regular touch with the social media platforms’ about misinformation and disinformation related to COVID-19, and that it is ‘flagging problematic posts for Facebook,’” the senator added in his letter to Zuckerberg.
“The First Amendment is sacrosanct, and it is unconscionable that the federal government has evidently enlisted private actors to police speech in ways that it is unable.”
Let’s remember, these are the same companies that treated all talk of any #COVID19 lab connection as illegitimate speech to be banned and penalized … despite knowing nothing about the actual science or intelligence findings
— Josh Hawley (@HawleyMO) July 15, 2021
Earlier in the day, Hawley also tweeted, “The social media platforms are increasingly just arms of the federal government and the Biden White House.”
That’s little surprise, but what is a stunner is that the collusion goes this deep. So deep, in fact, it might be unconstitutional. And Bob Menendez may have just admitted it.