Defund the Speech Police

Conservative demonstrators who allege that the government pressured or colluded with social media platforms to censor right-leaning content under the guise of fighting misinformation protest outside the Supreme Court in Washington, D.C, March 18, 2024, as the court hears oral arguments in the case of Murthy v. Missouri. (Photo by Saul Loeb/AFP/Getty Images)

“We can be knowledgeable with other men’s knowledge,” French Renaissance essayist Michel de Montaigne wrote, “but we cannot be wise with other men’s wisdom.”

It is a longer rendering of the same sentiment in Montaigne’s most famous quote: “Que sais-je?” What do I know?

What Montaigne, a Christian humanist, left for us was his fascination with and appreciation for the members of our species and the joy of living, but also a deep, deep circumspection about the ability of individuals and the societies they create to see and know the truth.

Hence the shrug: This is what I think, he says, but I only understand what I have learned through my own experience. So here may be an answer, but what do I know?

The Supreme Court on Monday heard arguments in two separate cases, both related to the use of government power to influence political speech.

NRA v. Vullo involves a letter the New York Department of Financial Services sent to insurers in the state warning them against doing business with the National Rifle Association in the wake of the 2018 school shooting in Parkland, Florida. The NRA, not surprisingly, sued. Its lawyers argued that the state was interfering with the group’s ability to advocate for gun rights. Even NRA foes allow that New York’s move was “foolish.”

But the other, bigger case, Murthy v. Missouri, is tricky. At issue are the efforts made by the federal government during the COVID pandemic and the 2020 election and its aftermath to battle what officials believed to be false claims posted on social media. 

It’s tricky because it’s sometimes hard to find the line between reasonable cooperation among government officials and the private-sector media to inform the public on pressing matters and “jawboning,” the use of direct or implied threats to manipulate speech. One is an extension of the same kind of work reporters and editors are always doing. The other is stealth censorship.

In the traditional media world, we would think of jawboning this way: If a government official notified a news organization of statements she or he believed to be false, no problem. If the official then said that such claims might trigger, say, an FCC license review, we’ve crossed over into “abridging the freedom of speech, or of the press.”

It’s notable here that the tricky Supreme Court case in question did not come from the social media companies that were perhaps jawboned into compliance, but from a pair of Republican attorneys general who say that their constituents were harmed by having their posts removed as a result of government pressure. Justices sounded unimpressed with the idea that state officials could sue the federal government for second-hand, maybe-maybe-not First Amendment violations that the media companies themselves are not suing over.

The same First Amendment keeps those same attorneys general from effectively suing the companies, since the platforms can’t be compelled to publish things they don’t want to publish. This, of course, infuriates many on the right who believe that social media platforms should be treated as public utilities, like telephone carriers, and not permitted to police the views offered thereon.

This is the wellspring of the populist right’s cries of “censorship,” and demands that social media companies be forbidden from discriminating between users’ posts. But to run his social media platform, X, MAGA hero Elon Musk has to regulate speech, lest users’ feeds turn into open sewers of pornography and hate undesirable to a mainstream audience and mainstream advertisers.

So, social media companies have to be able to take some posts down. But which ones? Not ones that are being removed or muted because of ideological bias, say the populists. Which bias? Whose definition? By what evidence?

Section 230 of the 1996 Communications Decency Act shields social media companies from lawsuits for leaving up objectionable posts. You can’t sue Meta if someone puts up a post defaming you. You can only sue the author of the post. 

But the choice not to host speech the outlets disdain comes right back to the Bill of Rights, the wall into which right-wingers have repeatedly plowed. Hence the suits being heard Monday over secondhand censorship. Unless Congress makes social media platforms into common carriers like Ma Bell and regulated by the FCC, the effort to force these businesses to cater to customers they don’t want will remain a talking point and not much more. 

If the nationalists came to the idea of empowering the government to police speech (or to police the policing of speech) in that circuitous way, the progressive case for government control didn’t have far to travel at all.      

In a piece in Sunday’s New York Times, writers Jim Rutenberg and Steven Lee Myers lament that “[Donald] Trump’s allies are winning the war over disinformation.”

“[Trump] and many of his allies [were banned] from the platforms they had used to spread misinformation about his defeat and whip up the attempt to overturn it,” reads the article. “The Biden administration, Democrats in Congress and even some Republicans sought to do more to hold the companies accountable. Academic researchers wrestled with how to strengthen efforts to monitor false posts.”

But, as Rutenberg and Myers rightly observe, Team Trump fought back aggressively, including with the lawsuits heard at the Supreme Court this week. 

“They have unquestionably prevailed,” the article notes ominously. 

“Officials at the Department of Homeland Security and the State Department continue to monitor foreign disinformation” they write, “but the government has suspended virtually all cooperation with the social media platforms to address posts that originate in the United States.”

Imagine if officials in the Trump administration had been engaging in “cooperation” with social media companies to “address posts” from the Black Lives Matter movement, transgender activists, environmentalists, and anti-Israel groups. What if Trump had tasked Stephen Miller with the work of rooting out “disinformation” on subjects that might incite mob violence or terrorism?

We could argue that it’s different in this case because Trump’s lies, ever more effulgent, are about elections, and constitute an attack on the legitimacy of the government itself. If the federal government is charged with certifying election results and with protecting the rights of Americans to vote, doesn’t the same government have an interest in policing misinformation about elections?

And, blammo, progressives plow into that same First Amendment brick wall that stymies the nationalists. Which misinformation? Whose definition? By what evidence?

Misinformation and disinformation are very much like right-wing claims of bias. Some of it is very obvious, but much of it is subjective and contextual. Sorting that out is fine work for individuals to do. Same for publishers, news outlets, and social media platforms. But when we bring the government into the game, we are inviting terrible trouble.

It’s good for the government to put the facts out about Trump’s bogus election claims—to talk to the press, to make facts readily available to the public, to make use of social media. That is especially true at the state level where elections are actually administered. 

But suppressing disinformation is not just problematic for free speech rights, it doesn’t work. What could make an idea or a claim more appealing to cranks and kooks than to hear that it was banned? 

Nationalists want the government to have power to prevent content from being removed. Progressives want the same power, but in reverse. Both would be wise to remember that it wouldn’t always be their side wielding the authority.

The better answer is to let the river flow and rely on citizens and media companies to make up their own minds about what to believe or disbelieve. Partisans and the politically powerful should make their cases as loudly as they like, but in the end, our republic rests on the capacity of individuals to make up their own minds.

And that brings us back to Montaigne: “We can be knowledgeable with other men’s knowledge, but we cannot be wise with other men’s wisdom.” 

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