{"id":18854,"date":"2023-12-12T11:58:15","date_gmt":"2023-12-12T16:58:15","guid":{"rendered":"https:\/\/jimbovard.com\/blog\/?p=18854"},"modified":"2023-12-12T13:00:34","modified_gmt":"2023-12-12T18:00:34","slug":"is-free-speech-a-relic-in-america","status":"publish","type":"post","link":"https:\/\/jimbovard.com\/blog\/2023\/12\/12\/is-free-speech-a-relic-in-america\/","title":{"rendered":"Is Free Speech a Relic in America?"},"content":{"rendered":"
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Is Free Speech a Relic in America?<\/a>\"\"<\/a><\/h1>\n

by James Bovard<\/h1>\n
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Is the First Amendment becoming a historic relic?<\/strong> On July 4, 2023, federal judge Terry Doughty condemned the Biden administration for potentially \u201cthe most massive attack against free speech in United States history.\u201d That verdict was ratified by a federal appeals court decision in September 2023 that concluded that Biden administration \u201cofficials have engaged in a broad pressure campaign designed to coerce social-media companies into suppressing speakers, viewpoints, and content disfavored by the government.\u201d<\/section>\n
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Much of the mainstream media is horrified at the prospect of reduced federal censorship.
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In earlier times in America, such policies would have faced sweeping condemnation from across the political spectrum. But major media outlets like the Washington Post<\/i> have rushed to the barricades to defend the Biden war on \u201cmisinformation.\u201d Almost half of Democrats surveyed in September 2023 affirmed that free speech should be legal \u201conly under certain circumstances.\u201d Fifty-five percent of American adults support government suppression of \u201cfalse information\u201d \u2014 even though only 20 percent trust the government.<\/p>\n

Biden\u2019s war on free speech<\/b><\/h2>\n

The broad support for federal censorship is perplexing considering that courts have vividly laid out the government\u2019s First Amendment violations. Doughty delivered 155 pages of damning details of federal browbeating, jawboning, and coercion of social-media companies. Doughty ruled that federal agencies and the White House \u201cengaged in coercion of social media companies\u201d to delete Americans\u2019 comments on Afghanistan, Ukraine, election procedures, and other subjects. He issued an injunction blocking the feds from \u201cencouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.\u201d<\/p>\n

Censors reigned from the start of the Biden era. Barely two weeks after Biden\u2019s inauguration, White House Digital Director Rob Flaherty demanded that Twitter \u201cimmediately\u201d remove a parody account of Biden\u2019s relatives. Twitter officials suspended the account within 45 minutes but complained they were already \u201cbombarded\u201d by White House censorship requests at that point.<\/p>\n

Biden White House officials ordered Facebook to delete humorous memes, including a parody of a future television ad: \u201cDid you or a loved one take the COVID vaccine? You may be entitled\u2026.\u201d The White House continually denounced Facebook for failing to suppress more posts and videos that could inspire \u201cvaccine hesitancy\u201d \u2014 even if the posts were true. Facebook decided that the word \u201cliberty\u201d was too hazardous in the Biden era; to placate the White House, the company suppressed posts \u201cdiscussing the choice to vaccinate in terms of personal or civil liberties.\u201d<\/p>\n

Flaherty was still unsatisfied and raged at Facebook officials in a July 15, 2021, email: \u201cAre you guys f\u2013king serious?\u201d The following day, President Biden accused social-media companies of \u201ckilling people\u201d by failing to suppress all criticism of COVID vaccines.<\/p>\n

Federal censorship<\/b><\/h2>\n

Censorship multiplied thanks to an epic bureaucratic bait-and-switch<\/strong>. After allegations of Russian interference in the 2016 election, the Cybersecurity and Infrastructure Security Act was created to protect against foreign meddling. Prior to Biden taking office, CISA had a \u201cCountering Foreign Influence Task Force.\u201d In 2021, that was renamed the \u201cMis-, Dis- and Mal-information Team (\u2018MDM Team\u2019).\u201d<\/p>\n

But almost all the targets of federal censorship during the Biden era have been Americans. Federal censorship tainted the 2020 and 2022 elections, spurring the suppression of millions of social-media posts (almost all from conservatives). During the 2020 election, CISA targeted for suppression assertions such as \u201cmail-in voting is insecure\u201d \u2014 despite the long history of absentee ballot fraud.<\/p>\n

CISA aims to control Americans\u2019 minds: A CISA advisory committee last year issued a report that \u201cbroadened\u201d what it targeted to include \u201cthe spread of false and misleading information because it poses a significant risk to critical function, like elections, public health, financial services and emergency responses.\u201d Thus, any idea that government officials label as \u201cmisleading\u201d is a \u201csignificant risk\u201d that can be suppressed.<\/p>\n

Where did CISA find the absolute truths it used to censor American citizens? CISA simply asked government officials and \u201capparently always assumed the government official was a reliable source,\u201d the court decision noted. Any assertion by officialdom was close enough to a Delphic oracle to use to \u201cdebunk postings\u201d by private citizens. Judge Doughty observed that the free-speech clause was enacted to prohibit agencies like CISA from picking \u201cwhat is true and what is false.\u201d<\/p>\n

COVID-inspired censorship<\/b><\/h2>\n

\u201cGovernment = truth\u201d is the premise for the Biden censorship regime. I<\/strong>n June 2022, Flaherty declared that he \u201cwanted to monitor Facebook\u2019s suppression of COVID-19 misinformation \u2018as we start to ramp up [vaccines for children under the age of 5].\u2019\u201d The FDA had almost zero safety data on COVID vaccines for infants and toddlers. But Biden announced the vaccines were safe for those target groups, so any assertion to the contrary automatically became false or misleading.<\/p>\n

Biden policymakers presumed that Americans are idiots who believe whatever they see on Facebook. In an April 5, 2021, phone call with Facebook staffers, White House Strategy Communication chief Courtney Rowe said, \u201cIf someone in rural Arkansas sees something on FB [Facebook], it\u2019s the truth.\u201d<\/p>\n

In the same call, a Facebook official mentioned nose bleeds as an example of a feared COVID vaccine side effect. Flaherty wanted Facebook to intervene in purportedly private conversations on vaccines and \u201cDirect them to CDC.\u201d A Facebook employee told Flaherty that \u201can immediate generated message about nose bleeds might give users \u2018the Big Brother feel.\u2019\u201d At least the Biden White House didn\u2019t compel Facebook to send form notices every 90 seconds to any private discussion on COVID: \u201cThe Department of Homeland Security wishes to remind you that there is no surveillance. Have a nice day.\u201d Flaherty also called for Facebook to crackdown on WhatsApp exchanges (private messages) between individuals.<\/p>\n

Federal agencies responded to legal challenges by portraying themselves as the same \u201cpitiful, helpless giants\u201d that President Richard Nixon invoked to describe the U.S. government when he started bombing Cambodia. Judge Doughty wrote that federal agencies \u201cblame the Russians, COVID-19 and capitalism for any suppression of free speech by social-media companies.\u201d But that defense fails the laugh test.<\/p>\n

Federal agencies pirouetted as a \u201cMinistry of Truth,\u201d according to the court rulings, strong-arming Twitter to arbitrarily suspend 400,000 accounts, including journalists and diplomats.<\/strong><\/p>\n

The Biden administration rushed to sway the appeals court to postpone enforcement of the injunction and then sought to redefine all its closed-door shenanigans as public service. In its briefs to the court, the Justice Department declared, \u201cThere is a categorical, well-settled distinction between persuasion and coercion,\u201d and castigated Judge Doughty for having \u201cequated legitimate efforts at persuasion with illicit efforts to coerce.\u201d<\/p>\n

Biden\u2019s Justice Department denied that federal agencies bullied social-media companies to suppress any information. Instead, there were simply requests for \u201ccontent moderation,\u201d especially regarding COVID. Actually, there were tens of thousands of \u201crequests\u201d that resulted in the suppression of millions of posts and comments by Americans.<\/p>\n

Team Biden champions a \u201cno corpse, no delicta\u201d definition of censorship. Since federal SWAT teams did not assail the headquarters of social-media firms, the feds are blameless. Or, as Justice Department lawyer Daniel Tenny told the judges, \u201cThere was a back and forth. Sometimes it was more friendly, sometimes people got more testy. There were circumstances in which everyone saw eye to eye, there were circumstances in which they disagreed.\u201d<\/p>\n

It\u2019s irrelevant that President Joe Biden publicly accused social-media companies of murder for not censoring far more material and that Biden appointees publicly threatened to destroy the companies via legislation or prosecution. Nope: It was just neighborly discussions between good folks.<\/p>\n

The courts strike back<\/b><\/h2>\n

At the appeals court hearing, Judge Don Willett, one of the most principled and penetrating judges in the nation, had no problem with federal agencies publicly criticizing what they judged false or dangerous ideas. But that wasn\u2019t how Team Biden compelled submission: \u201cHere you have government in secret, in private, out of the public eye, relying on \u2026 subtle strong-arming and veiled or not-so-veiled threats.\u201d Willett vivified how the feds played the game: \u201cThat\u2019s a really nice social-media platform you\u2019ve got there, it would be a shame if something happened to it.\u201d<\/p>\n

Judge Jennifer Elrod compared the Biden censorship regime to the Mafia: \u201cWe see with the mob \u2026 they have these ongoing relationships. They never actually say, \u2018Go do this or else you\u2019re going to have this consequence.\u2019 But everybody just knows.\u201d<\/p>\n

Yet the Biden administration was supposedly innocent because the feds never explicitly spelled out \u201cor else,\u201d according to the Justice Department lawyer. This is on par with redefining armed robbery as a consensual activity unless the robber specifically points his gun at the victim\u2019s head. As economist Joseph Schumpeter aptly observed, \u201cPower wins, not by being used, but by being there.\u201d<\/p>\n

In its September decision, the appeals court concluded that the White House, FBI, Centers for Disease Control and Prevention (CDC), and the U.S. Surgeon General\u2019s office trampled the First Amendment by coercing social media companies and likely \u201chad the intended result of suppressing millions of protected free speech postings by American citizens.\u201d<\/p>\n

The court unanimously declared that federal<\/p>\n

officials made express threats\u2026. But, beyond express threats, there was always [italic in original] an \u201cunspoken or else.\u201d The officials made clear that the platforms would [italic in original] suffer adverse consequences if they failed to comply, through express or implied threats, and thus the requests were not optional.<\/p><\/blockquote>\n

The appeals court also took a \u201creal world\u201d view of the nation\u2019s most feared law enforcement agency: \u201cAlthough the FBI\u2019s communications did not plainly reference adverse consequences, an actor need not express a threat aloud so long as, given the circumstances, the message intimates that some form of punishment will follow noncompliance.\u201d The federal appeals court upheld part of the injunction while excluding some federal agencies from anticensorship restrictions. The Biden administration quickly appealed the partial injunction to the Supreme Court, telling the court: \u201cOf course, the government cannot punish people for expressing different views\u2026. But there is a fundamental distinction between persuasion and coercion. And courts must take care to maintain that distinction because of the drastic consequences resulting from a finding of coercion.\u201d<\/p>\n

The Biden brief bewailed that the appeals court found that \u201cofficials from the White House, the Surgeon General\u2019s office and the FBI coerced social-media platforms to remove content despite the absence of even a single instance in which an official paired a request to remove content with a threat of adverse action.\u201d But both the federal district court and the appeals court decisions offered plenty of examples of federal threats.<\/p>\n

The New Civil Liberties Alliance, one of the plaintiffs, scoffed: \u201cThe Government argues that the injunction interferes with the government\u2019s ability to speak. The Government has a wide latitude to speak on matters of public concern, but it cannot stifle the protected speech of ordinary Americans.\u201d And the injunction impedes federal officials from secretly coercing private companies to satisfy White House demands.<\/p>\n

As the Biden administration pressured the Supreme Court, the anticensorship lawyers on September 25 secured an en banc rehearing of their case, which consists of a panel of all 17 active Fifth Circuit judges. The plaintiffs were especially concerned that the Cybersecurity and Infrastructure Security Act was excluded from the injunction. CISA and its array of federal censorship contractors have sowed far too much mischief in recent years. The appeals court modified the injunction to put a leash on CISA.<\/p>\n

Censorship could cast the deciding vote in the 2024 presidential election.<\/strong> Judge Doughty issued his injunction in part because federal agencies \u201ccould use their power over millions of people to suppress alternative views or moderate content they do not agree with in the upcoming 2024 national election.\u201d<\/p>\n

Much of the mainstream media is horrified at the prospect of reduced federal censorship.<\/strong> The Washington Post<\/i> article on Doughty\u2019s decision fretted, \u201cFor more than a decade, the federal government has attempted to work with social media companies to address criminal activity, including child sexual abuse images and terrorism.\u201d The Post did not mention the Biden crusade to banish cynicism from the Internet. Journalist Glenn Greenwald scoffed, \u201cThe most surreal fact of U.S. political life is that the leading advocates for unified state\/corporate censorship are large media corporations.\u201d<\/p>\n

Fifty years ago, philosopher Hannah Arendt wrote of the \u201cmost essential political freedom, the right to unmanipulated factual information without which all freedom of opinion becomes a cruel hoax.\u201d The battle over federal censorship will determine whether Americans can have more than a passing whiff of that political freedom.<\/strong> Ohio Attorney General Dave Yost joined the lawsuit against censorship and commented in September: \u201cThe federal government doesn\u2019t get to play referee on the field of public discourse. If you let them decide what speech is OK, one day yours might not be.\u201d<\/p>\n

On October 20, the Supreme Court announced that it would rule on this case, with a decision expected within a few months. Stay tuned for plenty of legal fireworks and maybe even good news for freedom.<\/strong><\/p>\n

This article was originally published in the December 2023 edition of<\/em> Future of Freedom<\/a>.<\/p>\n<\/section>\n<\/article>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Is Free Speech a Relic in America? by James Bovard \u00a0December 12, 2023 Is the First Amendment becoming a historic relic? On July 4, 2023, federal judge Terry Doughty condemned the Biden administration for potentially \u201cthe most massive attack against free speech in United States history.\u201d That verdict was ratified by a federal appeals court […]<\/p>\n","protected":false},"author":1,"featured_media":18862,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[391,3801,3918,47,402,1721,1122,1399,3841],"class_list":["post-18854","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-uncategorized","tag-censorship","tag-doughty","tag-elrod","tag-fbi","tag-fda","tag-first-amendment","tag-free-speech","tag-hannah-arendt","tag-willett"],"yoast_head":"\nIs Free Speech a Relic in America? - James Bovard<\/title>\n<meta name=\"description\" content=\"Biden censorship is nullifying the First Amendment. Will the Supreme Court stop this nonsense? 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The Wall Street Journal called Bovard \\\"the roving inspector general of the modern state\\\" and Washington Post columnist George Will called him a \\\"one-man truth squad.\\\" His 1994 book, Lost Rights: The Destruction of American Liberty, received the Free Press Association\u2019s Mencken Award as Book of the Year. His Terrorism & Tyranny won the Lysander Spooner \\\"Best Book on Liberty in 2003\\\" award. He received the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought and the Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. 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The Wall Street Journal called Bovard \"the roving inspector general of the modern state\" and Washington Post columnist George Will called him a \"one-man truth squad.\" His 1994 book, Lost Rights: The Destruction of American Liberty, received the Free Press Association\u2019s Mencken Award as Book of the Year. His Terrorism & Tyranny won the Lysander Spooner \"Best Book on Liberty in 2003\" award. He received the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought and the Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. 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