Suppose the president of the United States voices concern over media concentration. The president promises to consider antitrust suits to break up newspaper monopolies and retroactive legislation prohibiting newspapers from owning radio or television stations, including the remedy of divestment.
Suppose The Washington Post or The New York Times, intimidated by the president’s sword of Damocles, and to appease the U.S. government, daily shared their contemplated published letters to the editor, op-eds, and indeed their entire newspapers for vetting by the White House or executive departments or agencies, to delete viewpoints or assertions that the government decreed adulterated the cognitive infrastructure of the American people with bad ideas.
Is there any doubt that the described informal viewpoint censorship would violate the First Amendment’s protection of free speech and of a free press? The U.S. Supreme Court condemned a comparable scheme of informal government censorship in Bantam Books v. Sullivan (1963). There, the Commission to Encourage Morality in Youth provided booksellers with a list of prohibited books that should be withdrawn from circulation with an implied threat of prosecution if they were not. The Court held the Commission’s de facto censorship of books with no trial to adjudicate whether they were protected by the First Amendment was unconstitutional.
Now fast forward to the digital age and the rise of social media behemoths. President Joe Biden openly flirts with anti-monopoly suits against Facebook, Google and the usual suspects. The president also voices support for amending Section 230 of the Communications Decency Act to dimmish the legal safe harbor social media companies enjoy from publishing the postings of third parties. Additionally, the White House and a cavalcade of executive-branch agencies snarl in high octaves against social media for insufficient content monitoring and removal of postings or users who contradict the government’s orthodoxies about COVID-19, election integrity and the cognitive infrastructure of the American people that the government finds appealing, taking George Orwell’s “1984” to a new level. The social media companies approached included Facebook/Meta, Twitter, YouTube/Google, WhatsApp, Instagram, WeChat, TikTok and other online platforms.
In response, all targeted social media platforms meet or otherwise communicate daily with putative Platonic Guardians housed in the executive branch to delete disfavored posts or users. The overwhelming majority are conservative. The social media platforms become virtual stenographers of the Biden administration’s version of truth. A free marketplace of ideas is annihilated.
What you have read is not fiction. It is a summary of the decision of U.S. Judge of the Western District of Louisiana Terry A. Doughty on July 4, 2023, in State of Missouri, et al., v. Joseph R. Biden, et al. The Court chronicled in 100 pages of factual findings industrial-scale suppression on social media of content or users the Biden administration found were politically obnoxious, a synonym for conservative dissent or dissenters. Biden engaged in the broadest violation of free speech in history, far worse than the Index of Forbidden Books or book burning. Judge Doughty preliminarily held the censorship unconstitutional.
The Biden administration’s informal censorship with ulterior partisan political motives is deplorable. But it is symptomatic of a disease inescapable with our leviathan regulatory state endowed with limitless, unreviewable, discretionary power financially cripple or boost any substantial business in the nation. Think of the vast expanse of alphabet agencies: the FTC, the FCC, the FED, the FDIC, the Comptroller of the Currency (OCC), the SEC, the CPSC, the IRS, the FAA, the EPA, OFAC, CFPB, the FDA, the procurement arms of the Pentagon. They need to stay on the good side of the U.S. government to avoid financial strangulation.
The FDA screens drugs for safety and effectiveness before marketing can begin. The median cost of conducting the necessary clinical trials to satisfy the safety and effectiveness threshold average is approximately $20 million. An FDA denial is virtually unreviewable in court under the Administrative Procedure Act. No drug company — even Pfizer — would dare risk awakening the ire of its overseers by criticizing any FDA policy or the White House.
In other words, the mere existence of the FDA endowed with formidable regulatory discretion suppresses the free speech of the regulated. A host of other regulated industries are similarly silenced by the mere existence of their regulators: financial institutions, insurance, oil and gas, motor vehicles, aircraft, defense contractors, and every business that may confront a tax issue or a need to sell securities.
In sum, if we wish free speech to flourish, the regulatory state must be vastly scaled back.
This is an issue upon which both liberals and conservatives should agree. To crucify free speech on a cross of administrative regulation is a Faustian bargain that should not be entertained.
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