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.
There are actual steps that these companies and the government could take to stop the spread of disinformation;
– Limit anonymity (every American has Freedom of Speech, not the freedom to speak anonymously). This also would expose international actors attempting to sow dissent within the United States (if every troll farm in Moscow had to have a line at the bottom of their tweets with their exact location, for example).
– Get rid of bots/bot farming. Since this is not in the economic interest of Big Tech outside pressure from either the government or public interest groups would be needed to get this done.
– Make explicit the rules and regulations of every tech platform. Have these rules applied evenly and fairly.
– Even better, make the rules and regulations of the tech platform map onto the rights delineated in the U.S. Constitution, and make it the prerogative of the government to prosecute individuals under their breaking of the law.
Tech platforms should go back to their original argument; that they are a platform not a publisher. If for no other reason than that the moderation of content is effectively impossible.
The Disinformation Board is, at its best, silly. At its worst it is the first step in the erosion of the fundamental right to freedom of speech, as the internet and the world of Big Tech try to leverage their position to quash dissent. Any party or organization in power that is stupid enough to not think these tools will soon be used against them has not read their history, or understood why the Bill of Rights was written.
Hi Lucas–good choice of article. You present the issue with the Disinformation Board with great fluency, demonstrating your opinion that Biden’s creation of this committee could possibly be the federal administration overstepping its boundaries under the conditions of Norwood v. Harrison, amongst other cases. However, due to the context in which these cases were decided in comparison to the types of challenges U.S. democracy faces today, I disagree with this claim. Technically, yes–the 1st amendment does protect free speech for all people in a way to promote the freedom of people’s opinions around the country. Yet, in using the traditional framework of this language to defend tech companies, you are forgetting that you are comparing the free speech of individuals, to media posted by 3 giant conglomerates that continuously influence a majority of the United States, if not the world. Free speech that leads to disinformation in the way that directly or indirectly harms the knowledge of the public serves as a tool of democratic erosion itself; tech’s inability to control the number of lies spread on its platforms serves as a huge obstacle toward democracy, as there is supposed to be a foundation of trust between the government and its people. Tech is not a business–it is a superpower, with all the money and no regulation. Thus, it is a democratic government’s responsibility to hold those who aim to harm the will of the people (whether it be through direct action or by-standing) accountable for their actions.
The scope of influence of speech on media today is fundamentally different from the free speech of Norwood v. Harrison. And while I don’t believe that the Disinformation Board has much of a chance of changing the power dynamics between tech and federal administration, it is a step in the right direction to begin to regulate a monopoly that has had power for way too long.
I think it is worth noting that many voices on the left have criticized the “disinformation board” as well. The ACLU represented KKK members in 2012, for example, and in Brandenburg v. Ohio (1969) which you referenced in this blog post, the left has many voices which defend the first amendment even for those they vehemently disagree with. Attempting to regulate speech on social media is likely to lead to government-directed censorship, as the state has its own agenda and propaganda that it would love to enforce as the “truth”. It is absolutely fair to accuse the big tech companies of designing an algorithm which prioritizes conflictive and inflammatory posts and comments, making our public discourse more hostile and divisive, and I think fining companies for willfully increasing our divisiveness is a valid approach. The main issue with the big tech companies, however, is that they have a monopsolist control of our online discourse which prevents users from having options to go to. This means that the policies of any one company has an extreme effect on how people all over the world communicate online, and if it chooses to silence specific voices there is little recourse or alternative channels for those people to seek out.
When I first read about the disinformation board I wondered how it could possibly improve the situation around misinformation. Obviously, conservative suggestions that this is similar to the ministry of truth in Orwell’s 1984 is silly. Admittedly, I don’t have an answer with how we could go about addressing misinformation and disinformation on social media. There are some common sense steps that we could take to limit disinformation like cracking down on bots and limiting the extent to which people can be anonymous online. However, I’m skeptical that these reforms would be enough to fix the issue. The problem with taking a top-down approach to addressing this issue is that those spreading misinformation can use this to further sow distrust in these massive institutions. If someone believes the earth is flat, they’re not going to change their mind because Twitter banned the alternative news sources they listened to. This might limit the extent to which misinformation can spread, but it definitely won’t get at the core of why people listen to these sources in the first place. I think that the only way to truly address this issue of misinformation is by taking a more grassroots approach. Instead of trying to control what people can see, we need to teach people how to properly evaluate the credibility of a source. That way, they can filter misinformation on their own and can reach their friends and relatives who have been fed misinformation. Research that people are far more likely to question their beliefs when they have someone who they trust to speak to them. I think the even more fundamental problem here is the social isolation that can cause people to go down these extremist pipelines. This is an even harder problem to solve as there are so many different factors that contribute to people being socially isolated. On the government side, we can make sure that people have access mental health services and that they’re basic economic needs are met so they’re not compelled to look for outsider, populist views. On a personal level, I think we need to make an effort to reach out to our friends and family who fall down these rabbit holes if it is safe for you to do so.
The author provides a crucial and contemporary debate, exploring the fundamentals of free speech with regard to new forms of media in a democratic context. He states that from a legislative standpoint, the voicing of opinions/ideas/statements is prohibited on social media platforms and stands independent of its correctness. In fact, this free exchange is protected by the first amendment and does not fall into the regulatory responsibilities of the respective tech companies. At this point, there are a few additional remarks I would like to add to this argument. Free speech protections, by law, constrain libel charges and associational regulation but do NOT extend to rhetorical attacks on social media, propagation of false information, or nondisclosure of information. Provided we are in agreement with the previously stated fact, we need to place the concept of free speech in a political context. Misinformation, which is what is being referred to when criticizing said social media posts, is by nature a threat to US democracy. While newspapers and established media outlets are subject to fact-checking regulations, social media is not. Any individual has the ability to distribute incorrect information about political structures and processes to the wide public and is not liable to face consequences. In a time in which a great deal of media output is consumed through social media, the shift toward identity politics, ideological polarization, and widespread political misconceptions presents the direct consequence of inadequate media regulation. Instead, I would propose unified and consistent regulation, enforced by the federal government, that applies to both individuals and organizations to prevent large-scale political biases. This should by no means be misunderstood as an attempt to establish censorship, but rather as an active effort to preserve the very fundamental prerequisites to democracy that the named institutions and laws indisputably depend on.