Leila Fadel and National Public Radio recently interviewed me on free speech. While the program ominously warned that “what you’re about to hear is hate speech” in playing extreme voices on the right, it did interview me and former Columbia University president Lee Bollinger from the free speech community. I wanted to address a statement made about the program that is not accurate but has been repeated like a mantra by many seeking to dismiss the censorship system under the Biden Administration.
The claim is that the Supreme Court rejected the claim of coordination between the government and social media companies. That is entirely untrue, but you do not have to take my word for it. The Supreme Court expressly stated that it was not doing so last year.
During the program, Fadel quotes me:
“You had a level of cooperation, coordination between the government and these other entities, that the effect was that thousands were censored.”
Fadel immediately rebuts the claim:
FADEL: It’s a charge often made by Republicans and Trump allies. Last year, the Supreme Court rejected the claim that social media companies were pressured to take down posts about COVID-19 and the 2020 election.
That is a reference to the court’s decision in Murthy v. Missouri last year. The states of Missouri and Louisiana, led by Missouri’s then-Attorney General (and now United States senator) Eric Schmitt, claimed that the federal government pressured social media companies to censor conservatives and critics. The court ruled 6-3 that the states lacked standing to bring the case.
However, in the opinion, the justices went out of their way to expressly refute the notion that they were ruling on the merits of the coordination with the social media companies. In footnote 3, the Court states that “Because we do not reach the merits, we express no view as to whether the Fifth Circuit correctly articulated the standard for when the Government transforms private conduct into state action.”
The opinion was based on standing, not whether coordination occurred or whether such coordination violated the First Amendment, as found by the district court.
Thus, it is demonstrably untrue that “the Supreme Court rejected the claim that social media companies were pressured to take down posts about COVID-19 and the 2020 election.”
Yet, anti-free speech figures and others have repeated this claim, including law professors. Most recently, I testified in the Senate on free speech where both law professor Mary Anne Franks and a senator repeated this claim. Professor Franks told the Committee:
“For Republicans to call yet another Congressional hearing to investigate the so-called “censorship industrial complex” of Biden administration officials, nonprofit organizations, and Big Tech companies allegedly collaborating to censor conversative speech—a conspiracy theory so ludicrous that even the current Supreme Court, stacked with a supermajority of far-right conservative judges, dismissed it out of hand last year in Murthy v. Missouri—while ignoring the current wholesale assault on the First Amendment by the Trump administration is a betrayal of the American people.”
Obviously, the hearing became quite heated between Professor Franks and the Committee, but two of us wanted to address the claim. (Fellow witness Benjamin Weingarten was able to note the countervailing language in the opinion as part of another question). It was a shame because we might have been able to address this oft-repeated claim fully. (The full testimony is available here). I would have welcomed an opportunity to have a civil exchange with Professor Franks and the Democratic senators on this widely repeated claim.
Instead, as shown on NPR, it continues to be repeated and replicated despite being demonstrably in conflict with the express words of the Court.
The effort to portray evidence of collaboration between the government and social media companies as a “conspiracy theory” or “myth” is all too familiar. It attempts to portray free speech advocates as unhinged or fringe figures to avoid answering the troubling questions raised by the Twitter Files, the Facebook Files, and thousands of pages of documentation produced in litigation and Congress.
Indeed, some apologists for the censorship system have attacked journalists and free speech advocates as fellow travelers of Vladimir Putin. That is why it was rather ironic to hear NPR raise the question on the program of whether Trump is “the biggest threat to [free speech] since the McCarthy era in the 1940s and ’50s, when fear mongering around Soviet and Communist influence led to the political persecution of academics and leftists?”
The program did not mention that it is the left who have been using McCarthy-like tactics against free speech advocates, including calling them traitors or questioning their loyalty. There was nary a mention of such attacks from the left.
Ironically, in a prior hearing, I warned that this was reminiscent of the McCarthy period where the FBI played a role in the establishment of blacklists for socialists, communists, and others. I encouraged Congress not to repeat its failures from the 1950s by turning a blind eye to such abuse.
This view was amplified by former Rep. Tulsi Gabbard, who was labeled a “Russian asset” by Hillary Clinton due to Gabbard’s anti-war positions.
If anything, my warning of McCarthy-like attacks and measures seemed to be taken more as a suggestion than an admonition by Democratic figures. Soon after the end of the hearing, MSNBC contributor and former Sen. Claire McCaskill appeared on MSNBC to denounce the member witnesses (Sen. Chuck Grassley, Sen. Ron Johnson, and former Rep. Gabbard) as “Putin apologists” and Putin lovers.
She exclaimed, “I mean, look at this, I mean, all three of those politicians are Putin apologists. I mean, Tulsi Gabbard loves Putin.”
It is obvious that few of these anti-free speech figures want to address the thousands of pages on coordination and pressure exercised by the government. They also do not want to address the express statements from social media executives (including in my testimony) stating that the government pressured them to censor critics and target individuals. As with the express statement of the Supreme Court, these direct contradictions are simply denied or dismissed.
What is missing is a sense of obligation to acknowledge the countervailing evidence. Unfortunately, we have come a long way from when Democratic icon Sen. Daniel Patrick Moynihan declared, “You are entitled to your opinion. But you are not entitled to your own facts.”
