At the end of last month the Biden administration unveiled a new “Disinformation Board” within the Department of Homeland Security, aimed at attacking online “disinformation” as a national security threat in and of itself. Homeland Secretary Alejandro Mayorkas has clarified that the board has “a number of different offices engaged in this critical effort” and vows to not engage in spying on citizens as one of the board’s activities. Detractors on the right immediately voiced their discontent, likening the board to the “Ministry of Truth” from George Orwell’s 1984 and labeling the prospect of such a board as an egregious threat to free speech. Though it is difficult to say if we have reached a 1984-level situation here in the United States, it is worth exploring if the government should have a role in monitoring free speech online at all, and if “disinformation” is being used as a scapegoat in exerting extralegal influence on Big Tech-censorship of private users.
All forms of speech are protected under the 1st Amendment of the Constitution, even those which could otherwise be identified as harmful, inflammatory, nonsensical, or uninformative. This was reaffirmed in Brandenburg v. Ohio (1969), when the Supreme Court overturned the criminal conviction of a Klu Klux Klan leader who publicly threatened violence against political officials. With regard to the 1st Amendment and censorship, the law states that the First Amendment does not apply to voluntary choices made by a private company about what speech to allow or prohibit, but it does bar the US government from coercing or threatening such companies to censor. In other words, private companies can permit or prohibit speech but the U.S. government cannot, while the U.S. is also barred from coercing private companies to censor or endorse viewpoints on their behalf.
In 2022, the most rigorous first amendment debates have been situated around the conversation of tech censorship, exacerbated by COVID-19 and election “disinformation” spread on social media by normal citizens and in the press by professionals. President Biden has attributed vaccine hesitancy to “disinformation on cable TV and social media” numerous times since taking office, claiming social media companies and media personalities are “making money by peddling lies and allowing disinformation that can kill their own customers and their supporters.” Without proof that these companies are actually endorsing “peddling lies,” Biden is remiss to note that permitting “disinformation” on social media is actually completely legal, and a key function of social media agencies which at their best, serve as a public forum for the free exchange of idea and opinions whether they are true or not. Every American enjoys the right to not be right, for everyone would be fit for trial if simply being factually incorrect about something or spreading “disinformation” was not protected by the 1st Amendment. Accusations that “disinformation” is a problem created by social media and media personalities are also dangerously inconsiderate of any structural consideration as to why Americans are suspicious of vaccine efficacy–see “The Dark History of Forced Sterilization of Latina Women”–or as to why Americans are curious about potentially deleterious developments within their electoral processes–see “How Democrats Turned the Tables in the Gerrymandering Wars.”
Recent developments suggest that the Biden administration’s approach to combating legal “disinformation” may not represent a slapdash attempt to delineate the “disinformation” problem to the sphere of media, but could indicate a wider administrative strategy to threaten Big Tech companies enough that they simply censor themselves on the government’s behalf. In a 2021 Energy and Commerce Committee hearing with the CEOs of Facebook, Google, and Twitter, House members declared in the press release for the event:
“For far too long, big tech has failed to acknowledge the role they’ve played in fomenting and elevating blatantly false information to its online audiences. Industry self-regulation [of “disinformation”] has failed.”
Allow us to quickly pick apart this statement. First, the responsibility for the spread of false information on Twitter, for example, is no ones; the right to be wrong online is fully legal. Social media companies are allowed to employ any restriction on speech laws they want and are only subjected to removing those posts which break their terms of service. Twitter is not an arbiter of the 1st Amendment, they are an arbiter of their terms and conditions. The House can be seen as seeking to influence companies like Twitter to fit their terms and conditions to match national priorities in something like a courtship between the Democratic Party and Liberal Big Tech and News Media. After all, if “self-regulation has failed,” what existing body could regulate free speech within Big Tech if not the current ruling administration?
After 3 Big Tech Congressional hearings in the 5 months leading up to the election, it might be fair to remind ourselves of the Supreme Court case Norwood vs. Harrison (1973), that “for more than half a century courts have held that governmental threats can turn private conduct into state action.” The line between common administrative inquiry and indirect censorship may be thin, but it is not a gray area: the U.S. government “may not induce, encourage, or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” Therefore, since any courtship between the Democratic Party and Big Tech would be a repudiation of this statute, Homeland Security’s Disinformation Board should be seen as emblematic of this courtship.