The Supreme Court’s refusal to rule on the merits of the case, for valid reasons Murthy v. Missouri has made clear that the cure for executive branch suppression of speech through private companies will not come from the courts. That means if you believe as we do that government has no business dictating what information should be censored in the modern public square—social media sites—the cure lies with Congress.
The very idea of the government silencing American voices online smacks of authoritarianism and undermines the principles of self-government. Social media companies are not extensions of the state. They are private entities with their own terms of service and community guidelines. Any attempt by the government to force them to censor certain information sets a dangerous precedent that threatens the fabric of society.
Murthy is a perfect example of this alarming trend. Surgeon General Murthy’s attempt to force the removal of specific posts related to Covid-19 treatments from social media sites was nothing short of censorship. And we now know for sure that much of the Covid-related information that the government frowned upon and demanded social media censor—for example, the lab leak hypothesis, the ineffectiveness of masks, the lack of any scientific basis for the six-foot rule—was either true or, at a minimum, quite questionable.
Unfortunately, this is not the only example of government and corporate coordination to censor certain information or voices. One example is the campaign to censor discussions on Hunter Biden’s laptop, which relied on the false claim, recently contradicted by an FBI witness at Biden’s recent trial in Delaware, that the laptop was Russian propaganda. The government should not have the power to silence dissenting voices or control the flow of information, especially in the context of politics and elections.
Of course, the best solution would be for Congress to pass a law completely prohibiting this type of behavior. But if Congress does not prevent government agencies from interfering in the affairs of social media companies and their users, it should at least impose strict safeguards to prevent abuses of power. We believe the most effective protection is the simplest: let the sun shine.
To the extent that the government wishes to interact with private companies about content, it must do so in writing and post those writings on the web within one week of the interaction.
Furthermore, any public official who circumvents these requirements, whether by failing to create a written record of these interactions or by failing to publish them in a timely manner, should face serious consequences, including loss of employment. The law should protect those who report any violations, whether they are government employees or any affected social media company.
It may be objected that some exceptions to this rule will be necessary to protect national security or ongoing law enforcement operations, etc. To address these circumstances, we believe that whatever law Congress passes should include an exception to the requirement for prompt release of breathtaking communications that (a) fit within the narrowly defined exceptions as Congress considers appropriate and (b) have been personally certified by the head of the agency concerned as being exempt from the prompt publication rule. Requiring personal certification from the head of the agency would ensure both that these exceptions would rarely be invoked and that the head of the agency in question could not, when subsequently questioned by Congress, claim ignorance of either the communication under – underlying, or the decision to retain it. of publication.
Additionally, any “jawboning” communications so hidden from the public must be promptly shared with a bipartisan congressional oversight committee, and the decision to continue hiding it from the general public must be personally recertified by the head of the agency to regular intervals (we suggest once a quarter).
Freedom of expression is not a negotiable commodity; it is a fundamental right that must be fiercely protected. We cannot allow the government to dictate what we can and cannot say, especially when it comes to online speech. It’s time to draw a line in the sand and defend our right to speak freely, without fear of censorship or reprisal.
Jonathan Shaw is a partner at Dhillon Law Group. Amber Hulse is a recent graduate of Georgetown Law School, a law clerk at Dhillon Law Group, and a Republican candidate for the 30th State Senate District in South Dakota.
