River News: Our View

Perhaps the weirdest thing about the modern age of American politics is how upside down everything has become, especially the progressive world view.

In that world view, we can only save democracy by killing it — in other words, we must either imprison our political opponents or throw them off the ballot to ensure democratic elections. This is called Ukrainian democracy.

Then, too, to progressives, social justice has come to mean private privilege for specific identity groups. And of course, “progressive” social media corporations say their own freedom of speech can only be preserved if they can censor the speech of millions of people using their platforms — platforms blessed as public squares by the government itself.

As we report today, NetChoice, a trade association whose members include Google, Meta, TikTok, and other social media giants, has challenged laws enacted in Florida and Texas that prohibit viewpoint discrimination on social media platforms. NetChoice argues that by prohibiting those platforms from engaging in so-called content moderation — that is, de-platforming voices and viewpoints they don’t like — the state governments are violating the platforms’ own First Amendment rights to publish or not publish what they want.

Some conservative justices appear to agree, with justice Brett Kavanaugh saying in oral arguments that the First Amendment only prohibits censorship and viewpoint discrimination “by the government.”

Kavanaugh’s naïveté (or ideological purity) aside, NetChoice’s position runs into all sorts of contradictions.

First off, the social media platforms do not simply represent some private company or group with a right to First Amendment integrity. People with personal websites or businesses have a right to block certain content from their websites, for sure, but such individuals or business owners do not pretend to be a “public square,” as social media platforms do, and that’s a big difference. 

Indeed, for X and TikTok and Facebook, that’s their business model — to be a “public square,” and, over the years, those platforms have proudly proclaimed themselves to be just that. That was their argument for protection from civil liability, that the platforms served as “dumb pipes” that “permit any user who agrees to their boilerplate terms of service to communicate on any topic, at any time, and for any reason,” as Donald Trump’s brief in the case put it.

Similarly, as Sen. Josh Hawley of Missouri pointed out in his brief, the industry won immunity from liability based on the fact that they did not curate content and were not responsible for the content published by those using the platform.

They were not newspaper publishers. They were not editors. Like the telephone companies — which are not responsible for what you say on the phone and do not censor content through content moderation — the platforms were neutral. Because of Section 230 liability immunity, content moderation, except for already obviously illegal language such as pornography, was off the table, and so was censorship.

We all know that the internet grew into the powerful communications universe it is now precisely because of that liability protection and subsequent creativity and freedom of expression. The transaction between these tech companies and the government was explicit — the tech companies agreed to be a common carrier (at a big profit, mind you) and the government provided immunity from civil liability.

Looked at this way, the states of Florida and Texas aren’t looking to violate the free speech rights of the platforms; they are demanding that the platforms abide by the terms of their compact with the government. If they want to censor, the solution is simple — give up their liability protection, and then they can censor to their hearts’ content.

In his brief, Columbia Law School professor and New Civil Liberties Alliance CEO Philip Hamburger brought up a very important point about why viewpoint anti-discrimination laws are always necessary when a company or companies acquire common carrier status.

It isn’t because the government will directly demand censorship. As discovery in Missouri v Biden shows, the government has done just that, and the administration’s actions are arguably impeachable and criminal, but there’s even more to the story. 

And it isn’t because the government can threaten those companies with the loss of their special privileges — such as civil immunity — if they don’t discriminate. Of course, during the pandemic, Democrats in Congress did just that, hauling in tech executives for public hearings in which they demanded more censorship or face loss of those Section 230 liability protections. There is even more to the story.

It’s because the government’s mere existence — with its huge bureaucracy and regulatory machine, with all the potential favoritism and privileges it can potentially reward, and just might without anti-discrimination laws — makes such laws necessary to ensure that First Amendment protections of the users of common carriers are protected.

Said another way, the government capture of corporations for bureaucratic aims takes many forms, obvious and camouflaged, and so every effort must be made to build guardrails into the statutory prerequisites of common carrier-ship to prevent the government from subverting those First Amendment protections.

As Hamburger writes, “the federal government increasingly evades the Bill of Rights by working through private parties. So, unless this Court can effectively prevent such evasions, it should permit states to use common carrier anti-discrimination statutes to repair the breach.”

One might ask, though, what does all this have to do with Sunshine Week and open government? The answer is, it has everything to do with it.

For one thing, a government that censors speech is betraying the fundamental principles of open government; indeed, the act of censorship is central to closing the doors of government to its citizens, by any other name. The statutory declaration of policy in Wisconsin’s open records laws makes this clear:

“In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information.”

Well said: The duty of the government is to ensure an informed electorate by guaranteeing the greatest possible information regarding the affairs of government. When the government takes steps to shut down all but the most favored information, it is contravening that mission statement. Such a government is working not for openness but to make sure the electorate is only partially informed, which is to say, not informed at all.

As Hamburger wrote in his brief, because the government takes positions on things such as science, medicine, and elections, the censorship of dissenting views — or even information that merely questions the government narrative — “is like placing tape over the mouths, ears, and eyes of Americans. It prevents them from expressing and receiving what they need in order to sort out their various predicaments, whether political, religious, sexual, cultural, scientific, or merely personal.”

In other words, censorship prevents people from fully participating in their government as informed citizens. That participation is the central goal of open government.

To be sure, there are many ways to deprive people of the ability to participate. One way is to deny records requests or to heavily redact records or otherwise seek to prevent citizens from seeing the information in those records. Another way is to conduct closed meetings illegally, so that the citizenry cannot access the information they own.

And another way is to publicly censor all information concerning topics and issues the government is involved in. Doing so is a transaction of closed government, no less than a denial of access to a record or the ability to attend a meeting.

Speaking of attending a meeting, there’s another way that protecting the free speech of common-carrier users comes into play in open government matters. That is, because they are common carriers, platforms such as Zoom and YouTube routinely stream government meetings, from the local to the federal level. Right here in Oneida County, many if not most county committee meetings can be streamed on Zoom, and YouTube carries the county board meetings.

If NetChoice wins its cases, if YouTube and Zoom can engage in viewpoint discrimination, then the social media platforms will be free to censor those government meetings. YouTube might take down a county board meeting that includes expressions of views it doesn’t like. 

One might argue that YouTube would never take down a government meeting, but one would be wrong. It’s already happened. In 2021, during the pandemic, YouTube took down a video of a meeting of the Henderson County, North Carolina, Board of Commissioners after members of the public — during the public comment period — opined that they were opposed to the Covid vaccines, to their roll-out and to giving them to children, which one speaker called “crimes against humanity.”

YouTube cited a violation of its terms of service, which precludes “spreading misinformation.”

To be fair, YouTube later backtracked, saying it would make exceptions to its policy for government meetings. But the point is, if such policies are allowed to stand — if common carriers are allowed to engage in viewpoint discrimination — then it can adopt in the future whatever policies it wants, including censorship of government meetings.

Two final points. The very fact that so many local governments use these big tech platforms underscores and testifies to the fact that these tech platforms are in fact common carriers. It’s not only the way that millions and millions of Americans communicate with each other, it’s increasingly the vehicle most governments — local governments, especially — use to communicate with their citizens.

That these platforms are common carriers in every legal and real sense of the term is undeniable. To keep their liability protections, they must vigorously protect the free speech of those using their platforms and rigorously reject any viewpoint discrimination.

Second, one might argue that there’s no evidence that the federal government pressured YouTube to pull down that Henderson County video. Maybe YouTube did it all on its own.

That misses the point. As Hamburger wrote, in many cases there is no way of knowing. But even if YouTube acted out of its own ideological bias, which just so happened to align with that of the federal government, it is irrelevant.

It s irrelevant because the mere existence of a mammoth government, with truckloads of carrots to offer, and containers of sticks to display as a hint of what is in store for those who don’t comply, is an automatic incentive to conform to certain behaviors. One can truly never know, but one can never discount the degree to which private sector companies surrender to bureaucratic capture.

That’s why the guardrails — the statutory prohibition of viewpoint discrimination — is absolutely essential to an open government and a free society.

None of this means we should not be vigilant of government actions to prevent disclosure of its records or to block full access to its meetings and other daily proceedings. They are as important as ever. 

It’s just that government has deployed a new weapon in its war against citizen participation — the unprecedented censorship of the American people. We must fight it with all the energy we have.