(The Daily Caller)—Imagine that the next Republican administration coerced Twitter into censoring the hashtag #BlackLivesMatter, or pressured Facebook into creating an algorithm that suppresses progressive political speech and amplifies conservative speech, by training these social media companies to moderate content based on what the government determined was “misinformation.”
You would likely think it was a violation of the First Amendment—but a federal court in California would disagree with you.
According to several recent cases in the Northern District of California, public officials at the highest levels of our government can harangue social media companies into censoring disfavored speech. They can host training sessions with social media employees to teach them what sort of speech to censor. They can receive fawning reports from those social media employees, as though those employees are their own subordinates. And, there’s nothing you can do about it.
That’s because the Ninth Circuit, the appeals court that oversees the Northern District of California—the court where all lawsuits against Facebook and Twitter must be heard, per their terms of service—believes that you should not be able to file a lawsuit to stop the government from acting jointly with or coercing a social media company into censoring your speech unless you can prove that your speech was specifically targeted.
What if the social media companies use algorithms to identify, target and censor content? Sorry, not good enough—these courts argue that your speech was not “specifically” targeted, so you cannot bring your case. And what if they censor entire viewpoints? You still cannot bring a case—these courts would say that even if the government made the platforms generally censor disfavored viewpoints, it did not tell the platforms to specifically censor you.
Ultimately, these courts fail to recognize that modern technology has fundamentally altered what censorship looks like. The Biden administration’s view of the First Amendment is turned completely on its head.
Missouri, Louisiana, and a handful of individuals sued the Biden administration over this issue—staying out of California courts by suing only the Biden administration, even though the social media companies are also complicit in this censorship scheme. On July 4, they won an injunction prohibiting President Biden and a number of his agencies from coordinating with social media companies to censor Americans. Now, the Biden administration is arguing to the Supreme Court, with a straight face, that the injunction—protecting the free speech rights of American citizens—is somehow a violation of the government‘s First Amendment rights.
Yes, you did read that right. This administration is pressuring social media companies to censor you, and thinks it is a violation of the administration’s First Amendment rights if you try to stop them.
The Biden administration has things completely backwards. The government has no right to tell social media companies to censor people—and the First Amendment exists to prevent such schemes.
We should all hope the courts realize the importance of the cases before them to the future of free speech under the First Amendment and put an end to this administration’s censorship scheme.
James McQuaid serves as staff attorney at Liberty Justice Center, a nonprofit, nonpartisan, public-interest litigation firm that seeks to protect economic liberty, private property rights, free speech, and other fundamental rights including educational freedom.
The Liberty Justice Center is representing Justin Hart, the plaintiff in one of the cases against Facebook, X, and the Biden Administration currently before the Ninth Circuit. The next hearing in this case will take place on February 21, 2024.