The Trump administration has a major opportunity to deal a blow to the sprawling censorship industry, both inside the government and in the private sector.
Trump promised in a campaign video from Dec. 2022 to “shatter the left-wing censorship regime” by, among other proposals, signing an executive order banning agencies from collaborating with private platforms to suppress speech and ordering the Department of Justice (DOJ) to investigate parties involved in censorship.
“If Trump takes the steps that he has indicated he will, one focus of anti-censorship efforts I anticipate is nonprofits like the Atlantic Council and Stanford Internet Observatory [SIO] that operate as middlemen between the government and the tech companies,” New Civil Liberties Alliance attorney Jenin Younes told the Daily Caller News Foundation. “As President, Trump should ensure that the White House and his executive agencies do not work with these groups to censor ‘mis’ or ‘disinformation.’ In fact, all government efforts in the MDM [misinformation, disinformation, and malinformation] sphere should end, since this clearly results in suppressing First Amendment protected speech.”
Under the Biden administration, White House staff made explicit requests for platforms to restrict COVID-19 related speech. Other agencies participated in speech suppression, with the Center for Disease Control (CDC) flagging posts for removal and the Cybersecurity and Infrastructure Security Agency (CISA) forwarding misinformation reports from local election officials to platforms, a practice they called “switchboarding.”
CISA likewise helped create of the Election Integrity Partnership in 2020, which the SIO played a key role in running, to monitor “misinformation” and report it to platforms during the 2020 election. A federal judge declined last week to dismiss a lawsuit against the SIO, along with several other groups, over their alleged targeting of conservative speech.
“Private entities cannot be permitted to partner with the government to censor Americans’ speech,” Nicholas R. Barry, America First Legal Senior Counsel, said in a statement.
Younes told the DCNF she would like to see “punishment for government actors who have violated Americans’ First Amendment rights.”
“At this time, such individuals manage to escape accountability for their actions because of doctrines like qualified immunity,” she said. “However, there can be exceptions to qualified immunity when government officials knowingly flout people’s civil rights, and those exceptions should be applied in the First Amendment context.”
Trump’s other suggestions included firing bureaucrats who have engaged in censorship, ensuring federal dollars do not go towards nonprofits and universities labeling domestic speech as misinformation and asking Congress to revise Section 230 to “get big online platforms out of censorship.”
The Biden administration has issued $267 million in grant funding for projects including the term “misinformation,” including $127 million specifically relating to COVID-19, according to a November Open The Books report. The DCNF reported in 2023 on several projects funded by the NSF to develop censorship tools, including a dashboard to forecast misinformation “trends” and another studying how misinformation influences online networks.
Great Discussion Between @AFergusonFTC And @nataliegwinters On The Censorship Regime And How The Trump Administration Can Combat It
Two Key Parts Of The Censorship Problem:
-Private companies colluding to censor speech they don’t like. Advertiser Cartels being one of their… pic.twitter.com/i89sWWF9nQ
— The Columbia Bugle
(@ColumbiaBugle) November 30, 2024
(@ColumbiaBugle)
‘Smash This Censorship Cartel’
Many Trump nominees have been vocal about their commitment to promoting free speech.
Andrew Ferguson, who Trump selected as the new Federal Trade Commission (FTC) chair, said on War Room in late November that Trump can cut off some censorship outright, ordering officials to stop communicating with platforms and ending government funding for entities participating in speech suppression. But private censorship would likely move to “new fronts,” he noted, making it important for the FTC to take “investigative steps.”
Ferguson said “advertiser cartels” could violate antitrust laws by agreeing to boycott certain shows, podcasts and platforms.
“If the government is going to get out of the business here in the states of cooperating and colluding with the platforms to suppress the speech that they don’t like, then it’s up to the FTC to make sure that that sort of cooperation and collusion doesn’t move into the private sector,” Ferguson said.
Trump’s pick to lead the Federal Communications Commission (FCC) Brennan Carr likewise said in a NewsNation interview that one of his top priorities would be to “smash this censorship cartel.”
Other appointees took strong stances on censorship. Jay Bhattacharya, Trump’s choice for National Institute for Health (NIH) head, co-authored the Great Barrington Declaration pushing back on COVID-19 lockdowns and responses. United States Department of Health and Human Services Secretary nominee Robert F. Kennedy Jr. brought his own lawsuit against the Biden administration for alleged First Amendment violations.
Harmeet Dhillon, who is set to run the DOJ’s civil rights division, worked with her firm on a case challenging the California Secretary of State’s Office coordination with Twitter to suppress speech.
The covid era was the golden age of science denial. Closed schools, immunity denial, lockdowns, toddler masking, vaccine mandates, vax harm denial, and of course censorship to suppress opposition to a failed ‘expert’ class. The Science ™ must be replaced by science.
— Jay Bhattacharya (@DrJBhattacharya) November 15, 2024
Continued Litigation
While the Supreme Court found in June that plaintiffs who challenged the Biden administration’s censorship efforts failed to link their accounts’ restrictions to the government’s communications with platforms, the Missouri v. Biden lawsuit is ongoing. In November, the district court allowed the plaintiffs to pursue more discovery to establish the government’s involvement.
“Depending on the approach the Administration takes, it is conceivable that cases like ours could resolve in a consent decree, in which the government acknowledges its wrongdoing and takes various specific steps to safeguard against future violations of Americans’ First Amendment free speech rights,” Younes told the DCNF regarding the case.
The Alliance Defending Freedom (ADF) recently launched a new Center for Free Speech aimed at targeting censorship entities, pointing to the “new opportunity” free speech defenders will have as Trump takes office.
ADF Senior Counsel Phil Sechler told the DCNF the center is intended to create “substantial pushback on global censorship,” which he said has increased over the past decade by both private and government actors.
Potential targets include state level election laws, like the California laws targeting political satire that ADF already filed a lawsuit against on behalf of the Babylon Bee, along with debanking practices and other censorship by private actors.
“There is a lot of work to be done to dismantle this censorship industrial complex that’s been built up over many years,” Sechler told the DCNF.
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