Law professor': First Amendment protects government's free speech, not yours
The day after a federal judge's July 4th landmark decision banning meetings between federal officials and social media companies to coerce them to censor information the government does not want circulated, controversial Harvard professor Laurence Tribe tweeted the reasoning behind the Biden administration's objection to the order:
Censoring a broad swath of vital communications between government and social media platforms in the name of combating censorship makes a mockery of the first amendment
Layman's terms
Tribe, who describes his own words as “expert counsel,” but was reprimanded by Harvard University for plagiarism and has been forced to delete conspiracy theory tweets, argues that preventing Biden from telling Mark Zuckerberg, for example, to censor the Hunter laptop story on his Facebook platform is actually censoring Biden.
Tribe has thus come up with a theory that would allow any censorship by any government actor of any citizen at any time. The government agent would merely need to claim that preventing them from ordering a newspaper editor, tech executive, billboard salesperson, etc., to keep certain words off their platforms infringes on their free speech rights.
So-called non-experts weighed in, like the above commentator, who questioned Tribe:
That’s your takeaway from this? That government speech must be promoted over the free speech rights of citizens being protected? Good grief.
Expert
What kind of legal scholar would make such an argument? Respected constitutional law professor, and Democrat, Jonathan Turley described Tribe's character:
Tribe has called Trump a “terrorist” and supported a long litany of highly dubious criminal theories. He previously told CNN that “If you’re going to shoot him, you have to shoot to kill.” Tribe called Senator Mitch McConnell a “flagrant d---head!” and loves to use Trump-like insults like “McTurtle” to refer to the Senator. He later ridiculed former Attorney General Bill Barr for his Catholic faith.
His account has been described by critics as a “vector of misinformation and conspiracy theories on Twitter” where Tribe regularly engages in vulgar attacks on people holding opposing views. Tribe thrills his followers by referring to Trump as a “D---” or “d---head in chief.”
But what of Biden and his numerous co-defendants from various government agencies? Would they actually argue that not allowing them to censor speech is censoring their speech?
Government
The Biden administration filed papers beginning the appeals process in the censorship case the day after Tribe's tweet.
Federal government actors are likely to employ Tribe's argument in their appeal, as they already raised it with the lower court:
The Defendants argue that by making public statements, this is nothing but government speech [and therefore protected by the First Amendment].
One might suspect that the detailed analysis and factual conclusions of that court's 155 page opinion, including the below excerpt addressing Tribe's ideas, might dissuade federal officials from again proffering that argument.
However, it was not the public statements that were the problem. It was the alleged use of government agencies and employees to coerce and/or significantly encourage social-media platforms to suppress free speech on those platforms.
Plaintiffs point specifically to the various meetings, emails, follow-up contacts, and the threat of amending Section 230 of the Communication Decency Act. Plaintiffs have produced evidence that Defendants did not just use public statements to coerce and/or encourage social-media platforms to suppress free speech, but rather used meetings, emails, phone calls, follow-up meetings, and the power of the government to pressure social-media platforms to change their policies and to suppress free speech. Content was seemingly suppressed even if it did not violate social-media policies.
It is the alleged coercion and/or significant encouragement that likely violates the Free Speech Clause, not government speech, and thus, the Court is not persuaded by Defendants’ arguments here. [Emphases added; p.119].
However, Tribe's tweet and the government's appeal came after they had the opportunity to read the judge's findings. The court order leaves the federal government with little else to argue.
What is the fight about?
The court order that accompanied the judge's decision, and which is the subject of the federal government's appeal, was narrowly tailored to prohibit only government actions that infringe on the protected free speech of its citizens.
HHS … CDC … FBI … CISA … State Department … along with their secretary, directors, administrators, and employees ARE HEREBY ENJOINED AND RESTRAINED from taking the following actions as to social-media companies:
(1) meeting with social-media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech …
(2) specifically flagging content or posts … of … protected free speech
(3) urging, encouraging, pressuring, or inducing in any manner social-media companies to change their guidelines for removing … protected free speech
(4) emailing, calling, sending letters, texting, or engaging in any communication of any kind with social media companies urging … removal … protected free speech
(5) collaborating … with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group for the purpose of urging, encouraging, pressuring …
(9) requesting content reports from social-media companies detailing actions taken to remove …
(10) notifying social-media companies to Be on The Lookout (“BOLO”) for postings containing protected free speech. [Emphases added].
In case the judgment was not sufficiently clear that the federal government was still free to have “unprotected” speech removed from social media, the judge added the following exceptions to his order.
IT IS FURTHER ORDERED that the following actions are NOT prohibited by this Preliminary Injunction:
(1) informing social-media companies of postings involving criminal activity …
(2) contacting and/or notifying social-media companies of national security threats, extortion …
(3) contacting and/or notifying social-media companies about criminal efforts to suppress voting …
(4) informing social-media companies of threats that threaten the public safety …
(5) exercising permissible public government speech promoting government policies …
(6) informing social-media companies of postings intending to mislead voters …
(7) informing or communicating with social-media companies in an effort to detect … malicious cyber activity;
(8) communicating with social-media companies about deleting, removing, suppressing, or reducing posts on social-media platforms that are not protected free speech by the Free Speech Clause in the First Amendment ... [Emphases added].
The federal government, in its appeal, will need to explain why it believes it must be allowed to continue, “meeting with social-media companies for the purpose of urging . . . the removal . . . of content containing protected free speech"and why the eight listed exceptions are not sufficient. They may well be left to again argue that their free speech is somehow at stake.
Please see our earlier article on this censorship case:
State Department targeting Dr Gold, AFLDS cited by judge who blocked Biden censorship
