A Supreme Court Case Will Determine If There Is a Resurgence of WWI Government Censorship of the Press
Missouri vs. Murthy is a case where two states and private individuals sued the Biden administration, claiming multiple government officials (including Surgeon General Vivek Murthy, MD, and press secretary Karin Jean-Pierre) violated their First Amendment protections by coordinating with social media to deplatform voices the administration found objectionable. The content was labeled “misinformation” or “disinformation.”
Such “state action” would be a violation of the First Amendment. Discovery showed that the affected users were mostly conservative and mostly those who opposed the administration’s vaccine policy.
The plaintiffs argued that the process was a “sprawling ‘Censorship Enterprise’” that coerced the private social media companies to “muzzle” free speech, allowing the administration to skirt the First Amendment constraints on the government to do this alone, demonstrated by the failed “Disinformation Board.” The government argued that the coordination was voluntary and constituted “public education” by the government, which is constitutional. This reduced the argument to whether the government pressured or coerced the private companies, a question raised by the justices during the recent hearing. Indeed, Justice Kavanaugh had worked in the White House and said:
My experience is [that] the United States, in all its manifestations, has regular communications with the media to talk about things they don’t like or don’t want to see or are complaining about factual inaccuracies.”
Justice Brett Kavanaugh
The coercive element in the First Amendment makes this distinction critical to the Supreme Court decision. The constraint on the government is not absolute; it precludes “abridging freedom of speech” (emphasis added), enabling anyone or the government to persuade social media to voluntarily remove speech.
This distinction is demonstrated in a 1963 case, Bantam Books v. Sullivan. The government objected to the publication of books containing obscenity, calling them “objectionable.” While the government urged voluntary removal of these books, the communication also threatened prosecution if the subsequent publication was deemed obscenity. The book publishers sued and prevailed as the courts determined that the threat of prosecution crossed the line from persuasion to coercion and, therefore, was government censorship in violation of the First Amendment.
WWI Government Censorship of the Press
Government censorship of the press dates to WWI, when photographs of deceased soldiers were forbidden. It continued into WWII with the same restriction but was modified if the soldier’s face was not identified and the manner of death was not horrific.
Censorship went far beyond photography restrictions, requiring government censors to clear articles before publication. A prime example occurred at the end of WWII in Europe when Germany broadcasted its surrender on May 7, 1945. AP reporter Edward Kennedy reported that Germany had surrendered without first clearing it with the government censors. Kennedy argued that Germany had broadcasted the surrender on the radio, so it should not need censor clearance. Censors and fellow reporters still criticized Kennedy for not following government-prescribed protocol, and his career was effectively over.
“Disinformation Governance Board”
In 2022, a brief attempt to resurrect government censors was made with the introduction of a Department of Homeland Security (DHS) “Disinformation Governance Board.” Secretary Alejandro Mayorkas implied that some speech needed to be “governed” by stating that DHS staff are “leading a just recently constituted misinformation disinformation governance board. The goal is to bring the department’s resources together to address this threat.”
Free speech advocates and information experts alike raised serious concerns about the potential for government suppression of free speech. The vagueness of the board’s mission, the name’s similarity to George Orwell’s “1984” Ministry of Truth, and the government’s role in determining truth all sparked alarm. Orwell’s “Ministry of Truth” was a misnomer as the function was to erase past truths and replace them with whatever the party in power defines as “truth.” The proposed chairperson, Nina Jankowitz, even expressed concern that Elon Musk’s planned purchase of Twitter might give voice to free speech “absolutists.”
All this led to a short-lived proposal for the board that was canceled in May 2022. However, a modern “Ministry of Truth” may still have been in the making. After the demise of the Disinformation Board, the administration took a different approach: No public presence such as a government board, rather coordinating with social media to deplatform ideas, information, and opinions that the government decided were misinformation or disinformation.
The government decided that constitutional protection from government censorship was not operative if the same government used private companies to censor information. The merits of that “end run” around the constitution enabling
the government to determine what is “truth” is the basis for the lawsuit Missouri v. Murthy (formerly Missouri v. Biden).
First Amendment
A Knight Survey in December 2018 interviewed 500 teachers and 10,000 students regarding the protection of unpopular speech, which is precisely what the founders intended. The results showed that the students were far more tolerant of protected speech than the teachers.
According to the authors, 90% of students support the right to express unpopular opinions, but only 29% support threatening public speech. Only 23% of teachers supported threatening speech. School newspapers had more support from students for controversial stories than teachers (60% vs 45%).
However, students aren’t more protective of some First Amendment rights than teachers. 73 percent of students don’t think that the First Amendment should protect flag-burning protests, compared with 61 percent of teachers. 60 percent of high school students and 81 percent of college students support athlete protest during the national anthem, compared with 63 percent of teachers.
Digital news and information showed the greatest disparity, with Teachers (85 %) more likely to blame the Internet for causing “hate speech” than students (70%).
Media trust did not fare any better. Only 51 percent of students and teachers have some trust in the press. 54 percent of students say Online and viral videos are as equally trustworthy or more trust-worthy than “traditional news sources,” with that number dropping to 40 percent for teachers.
The authors noted that decreased classroom exposure to the First Amendment could affect the constitutional literacy of students. High school classes addressing the First Amendment stimulated more thought about freedoms than those who have not taken such a class (35 percent to 27 percent). The students were evenly split about the First Amendment going too far (55 percent to 50 percent).” Finally, only 64 percent of students say they have taken a class dealing with the First Amendment. That shows a decline over time, with 68 percent in 2016 and a high of 72 percent in 2006.
Bill of Rights
Supreme Court First Amendment Cases
When the First Amendment to the Constitution was adopted as part of the Bill of Rights on December 15, 1791, it only applied to the Federal Government, as the states could have their own versions of the Bill of Rights. However, with the adoption of the Fourteenth Amendment in 1868, which precluded “denying liberty” without due process, the Supreme Court gradually applied the Bill of Rights to all the States.
On June 8, 1979, James Madison Bill of Rights from 200 proposed amendments that were reduced to twelve amendments. Twelve amendments were finally approved by both houses on September 25, 1789. State ratification of the final ten by 3/4 of the states took several years until December 15, 1791.
The Bill of Rights has a complex history. When the Constitution was being ratified, the most significant obstacle was the lack of protection for individual rights. North Carolina originally declined to ratify the Constitution because of this.
Honorable Terry Doughty
The U.S. District Judge Terry Doughty ruled that there was First Amendment violation and issued a preliminary injunction against public officials, including the press secretary and the White House Counsel. Judge Doughty opened his ruling by quoting Voltaire’s biographer Evelyn Beatrice Hill:
“I may disapprove of what you say, but I would defend to the death your right to say it.”
Evelyn Beatrice Hill, 1906, The Friends of Voltaire.
Judge Doughty went on to state:
“If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history.”
Judge Doughty continued:
“Although the censorship alleged in this case almost exclusively targeted conservative speech, the issues raised herein go beyond party lines. The right to free speech is not a member of any political party and does not hold any political ideology. It is the purpose of the Free Speech Clause of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of the market, whether it be by government itself or private licensee.“
Red Lion Broadcasting Co., v. F.C.C., 89 S. Ct. 1794, 1806 (1969).
He closed with the following quote from Harry Truman:
“Once a government is committed to the principle of silencing the voice of opposition, it has only one place to go, and that is down the path of increasingly repressive measures until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.“
Harry Truman
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