If Feds Want To Jawbone Big Tech, Make Them Do It Publicly

The Supreme Court’s refusal on standing grounds to reach the merits in Murthy v. Missouri has made clear that the remedy for executive branch suppression of speech through private companies will not come from the courts. This means that if you believe as we do that government has no business dictating what information should be censored in the modern-day public square — social media websites — the remedy lies with Congress.

The very idea of the government silencing American voices online reeks 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 coerce them into censoring certain information sets a dangerous precedent that threatens the fabric of our 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 websites was nothing short of censorship. And we now know for a fact that much of the Covid-related information that the government disapproved of and demanded that social media companies censor — for example, the lab-leak hypothesis, the inefficacy of masks, the lack of any scientific basis for the six-foot rule — was either true or, at a minimum, fairly debatable.

Sadly, this is far from the only example of government coordination with companies to censor certain information or voices. The campaign to censor discussion of the Hunter Biden laptop based on the false claim, recently directly contradicted by an FBI witness at the Biden son’s recent Delaware trial, that the laptop was Russian propaganda, comes to mind. 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 banning such jawboning entirely. But if Congress won’t stop government agencies from meddling in the affairs of social media companies and their users, it should at least impose strict safeguards to prevent abuse of power. We think the most effective safeguard is the simplest: Let the sun shine.

To the extent the government wishes to interact with private companies regarding content, it must do so in writing, and it must publish those writings on the web within one week of the interaction.

Furthermore, any government official who circumvents those requirements, whether by avoiding creating a written record of such interactions or by failing to publish them on a timely basis, should face severe consequences, up to and including the loss of employment. The law should protect those who blow the whistle on any violations, both government employees and employees of any social media company involved.

It will doubtless be objected that some exceptions will be required to this rule to protect national security or ongoing law enforcement operations or the like. To deal with those circumstances, we believe that whatever law Congress passes should include an exception to the requirement of prompt publication for jawboning communications that (a) fit within whatever narrowly drawn exceptions Congress thinks appropriate and (b) have been personally certified by the head of the agency in question as being exempt from the prompt publication rule. Requiring personal certification by the head of the agency would ensure both that these exceptions would be rarely invoked and that the agency head in question would be unable, when later questioned by Congress, to claim ignorance of either the underlying communication or the decision to withhold it from publication.

In addition, any jawboning communications so withheld from public view must be promptly shared with a bipartisan Congressional oversight committee, and the decision to continue withholding them from the general public must be personally recertified by the agency head at regular intervals (we suggest quarterly).

Freedom of speech is not a negotiable commodity; it’s 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 discourse. 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 the Dhillon Law Group. Amber Hulse is a recent graduate of Georgetown Law School, a law clerk at the Dhillon Law Group, and the Republican nominee for South Dakota State Senate District 30.