Who or what enforces the edicts of the court? Mostly it is the executors of state power. What if they don’t want to because they disagree with the courts? At that point, we’ve got a problem.
Let’s consider.
Next week, the Supreme Court hears arguments in Murthy v. Missouri over a major free speech issue. The question is whether the federal government can, directly or indirectly, impose itself on social media companies to game their policies in a particular way according to policy priorities of the government itself.
The First Amendment suggests the answer is no. It says that government cannot impose laws “prohibiting the free exercise” or otherwise “abridging the freedom of speech.” Social media is all about speech. For government to game the system in its favor is a major intervention in rights that are supposed to be guaranteed by the government.
This principle has been routinely tested from the early years. The Sedition Act of 1798 targeted newspaper editors who criticized the president. There was outrage about that and it swept Thomas Jefferson into office who repealed the cursed thing.
That was hardly the end. Censorship was tried again in 1835, 1861, 1918, 1940, 1954, and so on, and each time the First Amendment eventually prevailed. And yet underlying this long experience is always the push by government to control the channels of distribution of information.
Now that every citizen is in a position to be a distributor of information to a broad audience via new technologies, we have government exercising its penchant to want to control. The Constitution of the United States, unique in the world for this protection of free speech, stands against this.
That seems rather simple. Surely the court will agree.
Maybe or maybe not.
Here’s the problem. A massive censorship industrial complex extending from federal agencies to every major digital tech platform has been constructed over the last eight years, and went into full effect in 2020. It still exists today. This largely happened out of the public eye. Even four years ago, it was barely known. The cases of banned accounts and throttled postings seemed isolated and often just an unfortunate exercise of editorial zeal.
But FOIAs and court discovery have unearthed tens of thousands of pages of receipts, so that the problem is not isolated or random but gargantuan and systematic. It involves dozens of federal agencies, non-government organizations working as contractors, universities on contract either directly or indirectly, and even embedded employees at social media companies. The censorship network is so elaborate at this point that it is truly an industry—an illegal one!
The 5th Circuit looked at the evidence and was so alarmed that it issued a pre-trial injunction against the federal government, namely many agencies in particular. District Court Judge Terry Doughty described what he saw as “arguably the most massive attack against free speech in United States history” and “akin to an Orwellian Ministry of Truth.”
The appeals court agreed but delayed the injunction pending a Supreme Court judgment. That is the issue the court takes up next week.
Here’s the trouble. I seriously doubt that these justices know much about the existence of this machinery. That’s understandable. Most people had no idea that it was being constructed and deployed. After all, when censorship is effective, most people are put in a position of not knowing what they do not know.
And that’s the whole point: to deny the public information. In this case, the machinery worked to massively distort information on so-called Russiagate, COVID in every aspect of that and what it implies, and the 2020 election, the outcome of which was likely affected by the censorship. For a time there—and we should never have gotten used to this—it seemed like every mainline information outlet became a regime megaphone.
Sadly, the courts have been denied information too. Now the highest court is hearing the case. Any fair hearing and judgment will result in an upholding of the injunction. It might not go that way. Or two other possibilities: the court sides with the Biden administration and for censorship, or simply kicks the can down the road to wait for the trial phase. In that case, the core problem could stay in litigation for many years!
If either of those latter two decisions comes down, every federal agency will have a green light to continue and expand its aggressive intervention in information networks. Even independent platforms will feel the heat. The goal is quite clear: for the public to see and hear no information that fundamentally contradicts regime priorities. That’s the result the Biden administration hopes for, and not just on behalf of President Biden but the entire deep-state apparatus that built this censorship industrial complex in the first place.
The stakes are extremely high. If this thing goes the wrong way, free speech in the United States is toast and the First Amendment will be a dead letter.
But let’s just suppose there is a good result: the court sides for the plaintiffs, the injunction is immediately upheld, and goes into effect upon the release of the opinion. The social media companies would have lost nothing but their chains. They can still enforce terms of service and community standards but they will no longer be under pressure from any state actor.
Sorry to ask this question but it must be asked: who precisely is going to enforce this?
The pathetic answer is that the people and agencies charged with implementing the injunction are the same people against whom the injunction is targeted.
Do you see the problem here? It is a major flaw in the way the system works. We have to trust the government, whose power is being limited by the courts to limit itself. That’s because the judiciary has no army, no inherent coercive power, no ability directly to punish those who go against its edicts against the enforcers themselves.
In other words, even a good judgment here does not mean that we are out of the woods.
There will still be the need for citizen oversight and resistance because the censorship industry will not simply stop existing.
Another problem: the Biden administration is increasingly attempting to discredit the Supreme Court. This has been going on for a few years now. At the State of the Union address, President Biden directly attacked members of the Supreme Court who were sitting right there. I’m not sure that has ever happened before. And earlier this month, he bragged how his new student loan forgiveness actions are in defiance of the court. Their decision “didn’t stop me,” Mr. Biden said.
This is an extremely dangerous trajectory we are on. The Supreme Court seems poised to rule against many practices by the executive department of the federal government. This hasn’t happened very often in U.S. history. How precisely this is enforced amounts to a large stress test of the American system itself. There is every reason to believe that the people in charge today do not even believe in that system.
Is this a flaw in the structure? Sort of but it’s a problem with every system. If institutions collapse, they collapse, and there is no technical fix. Ultimately freedom is preserved by a public consensus in its favor and leaders willing to make it so. It appears that public opinion is the only real and final check on tyranny.
A final factor here. Notice the mad rush by Google, Facebook, and others to implement artificial intelligence throughout its operation. If they can work with federal officials to make their curation and censorship merely a product of machine learning, they will eliminate all fingerprints from their dirty deeds. This bears watching as well.
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
