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Censorship by stealth: Can government officials censor speech by pressuring third parties to do it for them?

Feb 23, 2024 by Cindy Crawford

For this newsletter, I’m delighted to have Cindy Crawford, AFPF Senior Policy Counsel, take over to discuss censorship by stealth and two upcoming cases in front of the U.S. Supreme Court. – Casey

In July of 2022, a Midwest mom and college professor opened her Twitter app. She’d just finished reading a Wall Street Journal story about the administration’s pandemic response and wanted to share it with her followers. She quoted one line from the article and pressed send.

Twenty-four hours later, her account was locked. And the following year, she found out why.

The Biden administration had been pressuring social media companies to remove content that raised views they opposed – including her own.

Whatever you think of her views, this much is clear: What happened to her and countless other Americans is censorship by stealth.

That’s when the government coerces private business into silencing their users or customers.

Two big censorship cases before the Supreme Court this term take aim at that question, asking whether the government can use someone else to censor you when it can’t silence you directly.

NRA v. Vullo

The first case hasn’t received much press. In NRA v. Vullo, the National Rifle Association (NRA) sued Maria Vullo, the former Superintendent of New York’s Department of Financial Services, for using her official position to pressure New York insurance companies to stop doing business with the NRA.

Why?

Because she didn’t like the NRA’s advocacy for Second Amendment rights.

The government attempted to justify this interference by claiming the NRA’s advocacy exposed it to reputational risk.

In its proper role, the DFS is simply supposed to regulate financial services and products, but like many government bureaucrats, it sought to expand its role. The agency’s focus on “reputational risk” should focus on financial health, such as preventing a run on the bank because it gets a reputation for being underfunded, not because the bank provides services to causes you don’t like.

Plus, the cute part is that any reputational risk was promoted by the state because of its ongoing vilification of the NRA.

Murthy v. Missouri

The second case, Murthy v. Missouri (previously known as Missouri v. Biden), has received a lot more attention, made famous in part through “Twitter Files” journalists Matt Taibbi and Michael Shellenberger. Both of whom have testified before Congress regarding the successful efforts of an armada of bureaucrats to use their government positions to pressure social media platforms to censor speech that challenged the government’s viewpoint on hot topics, such as Covid-19, vaccinations, and elections.

The tactics of federal officials ranged from garden-variety nagging, “I want an answer on what happened here and I want it today,” to threatening regulatory action such as facing a “robust anti-trust program,” if the platform didn’t comply.

Four of the censored individuals, along with the states of Missouri and Louisiana, sued a list of bureaucrats a paragraph long for violating the First Amendment.

Americans for Prosperity Foundation (AFPF) filed amicus briefs in both cases, warning that these cases are two examples of government run amok.

When the government expands into ever-more areas of life, it’s no surprise that ambitious bureaucrats with strong opinions about how to “fix” the people, do that “fixing” by any means possible — even putting the screws to private companies to censor their users and customers.

All of this, of course, is unconstitutional.

The First Amendment cannot be evaded so easily. The fundamental rule is that government cannot do indirectly what the Constitution forbids it from doing directly — even where the government claims to act for your own good.

As AFPF argued, bureaucrats are not your parents and cannot censor speech simply to protect you from messages it doesn’t want you to hear.

AFPF, in both cases, asked the Court to reaffirm its previous holding in Bantam Books v. Sullivan: First Amendment speech protection cannot be evaded by using a private party intermediary to launder government censorship, regardless of how casual or broad-ranging the requests may be.

Our full amicus briefs can be viewed here for Murthy v. Missouri and here for NRA v. Vullo. And if you have any questions about these two cases, email freespeech@afphq.org.

— Cindy Crawford

 

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