U.S. District Judge Terry Doughty ruled on July 4 that officials under both the Donald Trump and Biden Administrations forced social media companies to censor content and people during the COVID-19 pandemic. Two weeks ago, the 5th circuit court of appeals agreed and, in the process, admitted what we all suspected for some time: Big Tech actively and enthusiastically conspires (present tense) with the government in order to silence dissent to COVID policies, election questioning, and even criticism of officials such as Anthony Fauci.
Now, the case has made it all the way to the highest legal authority in America besides the constitution itself: the Supreme Court of the United States. While the 5th circuit had put its ruling on hold for 10 days, Alito extended that pause until September 22nd, in order to give the Biden administration more time to file its brief requesting that SCOTUS hear the case. Alito also gave those suing the Biden admin -- Republican attorneys general from Louisiana and Missouri -- until next Wednesday to file their response. Meanwhile, SCOTUS will decide whether to take the case during a conference on October 6th.
Frankly, if not for the consequential nature of the case's implications, I doubt SCOTUS would waste their time, because based on the 5th circuit's ruling, this case is the definition of "open and shut." For example, one Missouri official in the case testified (emphasis mine):
[O]ne parent who posted on nextdoor.com (a neighborhood networking site operated by Facebook) an online petition to encourage his school to remain mask-optional found that his posts were quietly removed without notifying him, and his online friends never saw them. Another parent in the same school district who objected to mask mandates for schoolchildren responded to Dr. Fauci on Twitter, and promptly received a warning from Twitter that his account would be banned if he did not delete the tweets criticizing Dr. Fauci’s approach to mask mandates. These examples are just the sort of online speech by Missourians that it is important for me and the Missouri Attorney General’s Office to be aware of.
You don't get more obviously in violation of the First Amendment than that.
However, as I said, this case is consequential, and will loom large when it comes to the commitments of figures like Elon Musk, who now owns X (formerly Twitter), and has declared his commitment to free speech/his willingness tos tand up to demands by governments for more censorship. For example, Musk is suing California, contesting the constitutionality of Assembly Bill 587, a state law that mandates new transparency regulations for social media platforms.
Assembly Bill 587, endorsed by California's Governor Gavin Newsom, claims to aim to prevent the misuse of social media to propagate hate and misinformation. The law would require such companies to release semiannual reports detailing their content moderation practices, including statistics on problematic posts and their subsequent actions. Non-compliance may result in fines of up to $15,000 daily for each violation. X argues that this law infringes on its First Amendment rights, suggesting that California's objective is to coerce platforms into removing content deemed undesirable by the state.
That is, of course, exactly what its objective is, and based on the 5th circuit's ruling, exactly what the federal government already did. SCOTUS, quite frankly, is about to get a front row seat to the exposure of the most damning civil liberty scandal in decades.
According to the rulings already released, not only did the government actively conspire with platforms to silence dissent to its policies, but it forced social media companies to craft software tools to ease the process. The Biden and Trump administrations were able to receive algorithmic amplification of content and influencers who advanced ideas they didn’t like, and suppressed reach or silenced entirely the voices of citizens who they didn’t like.
These companies are still operating under these guidelines.
Without the intervention of courts, one has to wonder how far down the rabbit hole we might have strayed: it already appears that these companies’ relationship with government and the amplification of certain “government approved” social media users had reached the stage of obligate symbiosis. Think: “The Matrix,” with government as the robot overlords, Big Tech as the tube into our brains, and government friendly influencers as the willingly blue-pilled humans happily feeding the machine the propaganda it needs to keep the rest of us in line. Anyone who takes the red pill gets flushed.
Which brings me to the ultimate political, rather than legal point: Now that we know that these companies have not only colluded, but specifically built their platforms and tools for the purpose of government censorship, can we honestly say that they’re “private companies and they can do what they want?”
In X’s case… perhaps. But for the rest of the companies proven to be actively conspiring with the government against our rights, we should assume the answer is "no." The government may have been hamfisted enough for courts, possibly including the Supreme Court itself, to catch them in the act. But now that we know the desire to censor, and the ability to censor exist, we should assume that any future such decisions are tainted. Coercion is never more dangerous than when the state tries to hide its existence. Trying to outsource their own power hunger and turn private companies into their de facto slaves might be the most insidious act of coercion in our lifetimes.
