If Government and Big Tech Gang Up On Conservatives, Is It Legal?

The latest news from social media is that both Twitter and Facebook have banned Congresswoman Marjorie Taylor Greene’s personal accounts.

Twitter permanently suspended the personal account of Republican Georgia Rep. Marjorie Taylor Greene over repeated violations of its COVID-19 misinformation policy, the company confirmed early Sunday.
“We permanently suspended the account you referenced (@mtgreenee) for repeated violations of our COVID-19 misinformation policy,” a Twitter spokesperson told the Daily Caller News Foundation. “We’ve been clear that, per our strike system for this policy, we will permanently suspend accounts for repeated violations of the policy.”

I haven’t followed Greene closely enough to have any opinion about her, but what did she do that provoked this extreme sanction? She tweeted data from the Vaccine Adverse Event Reporting System (VAERS), which CDC uses to track potential safety problems with vaccines, relating specifically to adverse reactions to the covid vaccines. As far as I know, there is no assertion that she somehow misrepresented the VAERS data. Twitter and Facebook apparently saw her posts as running counter to the narrative they want to promote, which is that everyone must be vaccinated. Repeatedly.

Are there risks to vaccination? Indisputably there are, as tracked by VAERS. But those risks evidently must not be mentioned.

Actions like these by social media monopolies must offend every American who believes in free speech and debate as values in themselves, and as the best route to good policy. But the conventional wisdom is that, because Twitter, Facebook, et al. are private companies, their censorship is beyond legal question, no matter how irrational, how partisan, or how contrary to American values it may be.

Is that assumption really correct? The social media giants are of course private companies, but that is hardly the end of the conversation. The reality is that in suppressing conservative voices, they are doing the bidding of the Democratic Party, which at the moment controls the U.S. government.

Glenn Greenwald made the point in February 2021:

For the third time in less than five months, the U.S. Congress has summoned the CEOs of social media companies to appear before them, with the explicit intent to pressure and coerce them to censor more content from their platforms. On March 25, the House Energy and Commerce Committee will interrogate Twitter’s Jack Dorsey, Facebooks’s Mark Zuckerberg and Google’s Sundar Pichai at a hearing which the Committee announced will focus “on misinformation and disinformation plaguing online platforms.”
House Democrats have made no secret of their ultimate goal with this hearing: to exert control over the content on these online platforms. “Industry self-regulation has failed,” they said, and therefore “we must begin the work of changing incentives driving social media companies to allow and even promote misinformation and disinformation.” In other words, they intend to use state power to influence and coerce these companies to change which content they do and do not allow to be published.
[T]he key point raised by these last threats from House Democrats is an often-overlooked one: while the First Amendment does not apply to voluntary choices made by a private company about what speech to allow or prohibit, it does bar the U.S. Government from coercing or threatening such companies to censor. In other words, Congress violates the First Amendment when it attempts to require private companies to impose viewpoint-based speech restrictions which the government itself would be constitutionally barred from imposing.

I think this is obviously correct. Imagine, for instance, that in pre-internet days, the federal government had gone to all of the printing companies in the U.S. and paid them not to print any campaign materials by the other party. Or threatened to investigate them if they printed the other party’s campaign materials. No one could doubt that such actions would violate the First Amendment.

That may be what we have here. For example: if the Biden administration explicitly or implicitly represented to a tech monopoly like Facebook that it might go easy on antitrust enforcement if Facebook suppressed conservative and Republican content, that would be an obvious First Amendment violation. Such a theory is entirely plausible, as the Trump administration filed an antitrust case against Facebook seeking, as a remedy, the divestiture of Instagram, which was Facebook’s principal competitor until Facebook solved the problem by buying Instagram.

There are a couple of possibilities here: perhaps someone from the Biden administration held a clandestine meeting with a Facebook official–on a park bench, maybe, like in spy movies–where such a deal was struck. In that event, we have an unquestionable First Amendment violation. More likely, though, there was no meeting. More likely, Facebook’s management drew a natural inference that if Facebook scratched the Democratic Party’s back by suppressing conservative and Republican content, the Democratic Party would scratch back by quietly abandoning–or better yet, settling cheap–the antitrust case. Same result, but likely with a different legal status.

And Twitter is in the same legal position as Facebook, monopolizing its social media space, with the difference that there is not, at the moment, an antitrust case pending against Twitter. But the incentives on both sides are the same.

All of this is to say that the fact that Twitter, Facebook, Apple, Amazon, et al. are private companies by no means ends the First Amendment inquiry. If they are suppressing free speech–and they are, unquestionably–their relationship to the government needs to be examined. And when the facts are finally exposed, it is quite possible that these companies’ censorship on behalf of the Democratic Party may be found to violate the Constitution. This is something that Republicans should investigate vigorously when they take the House later this year.

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