By David G. Bjornstrom

Free Speech and Social Media – Does Big Tech Work for the Government?

September 2, 2021
Column: Catching Air

President Trump has filed lawsuits against Facebook, YouTube and Twitter accusing them of working with the government to censor free speech. His lawsuits raise two points:

  1. The big internet platforms are violating the First Amendment by colluding with government officials to censor unapproved ideas.
  2. Section 230 of the Communications Decency Act is unconstitutional in granting those companies legal immunity to encourage censorship.
As we all know, President Trump’s Facebook, Twitter and YouTube accounts were restricted and eventually blocked entirely in connection with the 2020 elections, sometimes under the guise of “fact-checking” or based on claims that his words encouraged violent protest at the capitol.
This censorship of a U.S. president is historically unprecedented and it continues even now that he is out of office but still a significant political voice.

A closer look…

While the First Amendment does not generally apply to private companies, censorship by Facebook, Twitter and YouTube violates the First Amendment if it is done in collaboration with government officials, members of Congress or the Biden administration.
Trump’s lawsuits also charge big tech with censoring information that conflicts with the government’s preferred narrative on the Covid-19 pandemic. While Trump is the lead plaintiff in his lawsuits, he is joined by others who claim that their accounts were censored, including accounts suspended, demonetized or flagged with warnings about so-called “disinformation” about Covid.
President Trump’s lawsuits recognize that the First Amendment applies to government censorship, not private company actions. However, private censorship crosses the line to become de facto government censorship, violating the First Amendment, when big tech media platforms collaborate or act with the encouragement or even coercion by government officials.

How is the government involved in this?

Before the 2020 elections, Democratic members of Congress publicly threatened to regulate, break up or remove existing legal protections given to the big social media companies if they did not censor President Trump.
More recently, government agencies including the Centers for Disease Control (CDC) and the Biden administration are pressuring social media companies to censor whatever does not fit their preferred narrative about Covid, including as it relates to the origin of the pandemic in China, alternative medical treatments and health risks associated with experimental vaccines.
The CDC has publicly admitted that it works with social media “partners,” including YouTube, to curb the spread of what it calls “vaccine misinformation,” basically referring to any information different from what the government wants us to hear. This has led Facebook, Twitter and YouTube to censor some very qualified people who disagree with the CDC, Doctor Fauci, or other so-called “experts.”
Mark Zuckerberg, CEO of Facebook, has acknowledged that Facebook works with the CDC to block some Covid-related content. This working relationship with the government was recently on display when Facebook blocked discussion about the Wuhan China lab leak theory, calling it a “conspiracy theory” and “misinformation.” That censorship ended abruptly when Dr. Fauci finally acknowledged the possible lab leak, showing that Facebook was taking its cue from the CDC.
The Biden administration has admitted that it is “in regular touch” with social media platforms to flag what they call “problematic posts that spread misinformation” about Covid.
Biden accused Facebook of “killing people” by not censoring enough, forcing Facebook to defend itself by assuring the government that it only spreads so-called “authoritative information” supporting the government’s positions. This supports Trump’s claim that the government is working in tandem with the internet platforms to censor unapproved ideas.

This is not to say that there should not be no restrictions at all on content that is clearly evil, like pornography or solicitations for human trafficking. However, we need very strict limits on censorship of ideas in a free society. Our first freedom as Americans is the First Amendment and free speech which protects all our other rights. Supreme Court Justice Louis Brandeis said in 1931 that the best remedy to combat harmful speech is “more speech, not enforced silence.” In other words, open debate not censorship.

Enter section 230 of the Communications Decency Act…

Section 230 gives online platforms immunity from lawsuits relating to content they allow on their sites or for censoring content they do not want. This has contributed mightily to the development of the internet. It gives grassroots organizations like the #MeToo movement better access to the public square, and it generally keeps judges from acting as “speech police.” Unfortunately, liberals and conservatives alike believe that 230 is being abused.

Liberals sometimes criticize section 230 for allowing the big media platforms to censor too little of what they consider harmful content, often whatever conflicts with their political goals. Many conservatives, on the other hand, believe that section 230 has become an excuse for big tech to engage in selective censorship with the government’s participation in violation of the First Amendment. According to Trump, “No longer are Big Tech giants simply removing specific threats of violence. They are manipulating and controlling the political debate itself.”

Liberals are on the wrong side in promoting censorship. Our country was built on principles of open debate not censorship.

Our country was built on principles of open debate not censorship

Trump’s lawsuits argue that section 230 is unconstitutional since it allows the government to use the internet companies to censor free speech that the government would be forbidden to censor directly under the First Amendment.
In effect, section 230 is such a valuable “gift” to the social media companies, largely responsible for their incredible financial success, that Congress can compel censorship of opposing viewpoints by threatening to revoke section 230.

Predictably, a lot of liberal commentators are downplaying Trump’s lawsuit, noting that traditional news sources such as CNN and Fox News have a First Amendment right to refuse publication of political materials they do not agree with, such as rebuttals to editorials or endorsements.

However, this fails to recognize Court cases holding that the First Amendment is violated when private companies engage in censorship in response to actual or implied government threats. Facebook, YouTube and Twitter, unlike traditional news services, have built their businesses on section 230 immunity, making them extremely vulnerable to government threats to take it away from them.

Even if the Court does not agree with all of Trump’s claims, it may decide to limit the internet platforms’ section 230 immunity from private lawsuits.

Supreme Court Justice Clarence Thomas noted in a 2020 case that section 230 does not extend legal immunity to bad-faith removal of third-party content. Justice Thomas has also suggested treating the large digital platforms as “common carriers” such as telecommunications and public utilities, or as “public accommodations” like hotels and restaurants which are required to serve all members of the public fairly.

If Trump’s lawsuit succeeds, especially if section 230 is held unconstitutional or narrowed in scope, the big internet platforms may be exposed to billions of dollars in lawsuits by people who are censored or otherwise harmed by content-based platform restrictions.  Consider, for example, all the potential lawsuits from people who suffer Covid vaccine injuries from any health risks that are hidden from the public. The legal risk to those companies could not be greater.

David G. Bjornstrom is a member of the U.S. Supreme Court bar and retired California attorney at law with 38 years specializing in business, estate and... MORE »

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