“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”—U.S. Constitution, Amendment I
That’s what the First Amendment says, right?
“Congress shall make no law … abridging the freedom of speech, or of the press…”
And Congress didn’t, did they?
So we should be fine.
But as The Twitter Files released over these past few months since Elon Musk’s purchase of the social media platform reveal, the U.S. government has been persistently and systematically abridging the freedom of speech and who can publish online, using the excuse of fighting “misinformation” and “disinformation,” with the most prominent role being played by the highly politicized Federal Bureau of Investigation (FBI). Independent journalists Matt Taibbi (@mtaibbi), Michael D. Shellenberger (@ShellenbergerMD), Bari Weiss (@bariweiss), Lee Fang (@lhfang), Alex Berenson (@AlexBerenson), and David Zweig (@davidzweig), and probably more to come, have been given access to the internal communications and emails of Twitter’s former management, with the condition that they first report what they find in tweet threads on Twitter itself.
Meanwhile, the lawsuit filed against the Biden Administration last summer by the Attorneys General of Missouri (now U.S. Sen.) Eric Schmitt (@Eric_Schmitt), and Louisiana Jeff Landry (@AGJeffLandry), along with other plaintiffs, has produced discovery concerning the government’s censorship efforts aimed at other social media platforms, notably Facebook. Newly inaugurated Missouri Attorney General Andrew Bailey (@AGAndrewBailey) will continue the litigation for his state.
And as you may remember, President Trump filed a series of class action lawsuits in the U.S. District Court for the Southern District of Florida against Twitter, Facebook and Youtube in 2021, shortly after leaving office. These cases were all transferred on defendants’ motions to the U.S. District Court for the Northern District of California, and there the case against Twitter was dismissed on May 6, 2022. However, President Trump has appealed that dismissal to the U.S. Court of Appeals for the Ninth Circuit, and the other two cases, against Facebook (now Meta) and Youtube have been stayed at the district court pending the Twitter appeal.1 At the time President Trump’s lawsuits were filed, there was scant evidence of “state action” on the part of social media companies. In other words, it was not clear that Twitter, Facebook/Meta, and Google/Youtube were acting as agents of the government. But things have now changed.
Congress never passed any law authorizing the online censorship that’s been imposed on Americans’ freedom of speech and freedom of the press by the FBI’s “disinformation police,” or by the White House and CDC bureaucrats during the (still legally ongoing “emergency” of the) COVID-19 pandemic. So from a strictly textual analysis of the First Amendment, nothing is wrong.
The online government censorship apparatus that’s been recently revealed is one of the most serious examples yet of the unconstitutional growth of the administrative regulatory state, the unaccountable permanent bureaucracy that Congress has allowed to exercise the combined powers of the executive, legislative and judicial branches —powers which are supposed to be kept separated and balanced against each other in our constitutional order. As private companies, Twitter, Facebook, and Youtube, et al. are not legally bound to protect our constitutional rights, but when they act as willing (or even reluctant) agents of the government, as the former management of Twitter quite evidently did, there’s a massive civil rights violation that has been inflicted on the public by our own government.
(Meme flashback: “At least it’s not the government!”)
For years, Congress has delegated unpopular policy decisions which could not be implemented democratically to the administrative state. Fortunately, there’s been some pushback against this in recent years by the U.S. Supreme Court, in the form of the “major questions doctrine,” which I wrote about last summer in relation to the Enviromental Protection Agency’s overreach in trying to impose “carbon emissions” reductions on the United States’ energy industry that couldn’t be passed in Congress. If Congress wants to make a big policy change, the “major questions doctrine” requires that they give a clear authorization to the administrative agency implementing that change, in other words, Congress must vote on it (and the voters can choose whether or not to hold them accountable for their vote).
But Congress did not authorize, nor did anybody vote for, the government to exercise the power to judge what’s “misinformation” or “disinformation” on social media, and to command the companies which own those platforms which messages and users to censor. While it seemed obvious to those who were on the receiving end of the censorship that at least some coordination was going on, or that some entity behind the scenes was compelling these supposedly “competing” companies to impose the same narratives, and limit the reach of the same people, the censorship was hidden from the public by those who were doing it, and officially denied.
That social media platforms could and would ban the accounts of the President of the United States, all at about the same time, was an unprecedented (and as we know now, unjustified) exercise of their power.
And while the Twitter Files reveal that the prior management of that company may have had some misgivings about becoming an agent of the federal government, for the most part Twitter settled into its role of cooperating with government’s censorship requests, and was compensated and commended for its efforts. Other social media companies have also been implementing the government’s censorship diktats, but thus far, only Twitter, under its new management, is willing to confess.
U.S. Supreme Court Justice Clarence Thomas, in his concurrence in the Court’s order dismissing the case of Biden v. Knight First Amendment Institute At Columbia Univ., 593 U.S. ____ (2021) due to the change of presidential administrations, observed that social media companies who act as agents of the government could have civil liability exposure.2
[A]lthough a “private entity is not ordinarily constrained by the First Amendment,” Halleck, 587 U. S., at ___, ___ (slip op., at 6, 9), it is if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint. Ibid. Consider government threats. “People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around.” Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 68 (1963). The government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly. See ibid.; Blum v. Yaretsky, 457 U. S. 991, 1004–1005 (1982). Under this doctrine, plaintiffs might have colorable claims against a digital platform if it took adverse action against them in response to government threats.
But what of the government itself, in using the social media companies as its agents to do “what the Constitution prohibits it from doing directly?” Congress may have “made no law,” but didn’t the government break the law?
Our Constitution is supposed to produce a government of limited and divided powers, where the laws are actually made by Congress, and those laws are carried out and enforced by the executive branch, and disputes or controversies about the laws Congress has made are decided by the judicial branch. The Constitutional prohibition on Congress making a law abridging the freedom of speech, or of the press, really applies to the whole federal government, because in the Constitutional structure as written, there’s no other place that a law gets made, and without Congress passing a law, there’s nothing for the executive branch to enforce. Action taken by the executive without a law giving it the power to act is what lawyers would call ultra vires, Latin for “beyond the powers.” In other words, the act is itself outside the law, and goes beyond the Constitution, which is the source of the federal government’s power. Because Congress is forbidden by the First Amendment from abridging the freedom of speech, or of the press, so is the executive, which in the Constitution is the President. The FBI, and the other executive branch agencies, derive their power from President, and thus what the President is not lawfully allowed to do, because Congress is forbidden to pass a law to empower him to do it, the agencies which are beneath the President in the executive branch cannot lawfully do either.
Federal law provides for a remedy for the violation of an individual’s civil rights under color of law (i.e. by agents of government pretending to act with lawful authority they do not have), but only for officers of state and local governments.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
(42 U.S.C. §1983, emphasis added)
Federal law also provides a remedy for persons who have been killed or injured by federal employees, in the Federal Tort Claims Act. Civil rights claims against officers of the federal government can be allowed under certain circumstances, called Bivens claims, which mostly have to do with the treatment of criminal suspects by federal law enforcement. The 1971 Bivens case was an attempt by the U.S. Supreme Court to provide a remedy in circumstances where there was no federal law, finding an “implied cause of action” in the Constitution. But the Supreme Court just last year declined to extend the precedent it established in Bivens to First Amendment retaliation claims brought by the plaintiff in Egbert v. Boule, 592 U.S. ____ (2022), and the present Court seems to disfavor such claims generally, in the absence of Congressional legislation authorizing such a suit.
Justice Thomas, writing for the majority in the 6-3 decision, observes that “[O]ur cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts”3 and "we have indicated that if we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution.”4 It's likely that the Supreme Court would find that even if plaintiffs could sustain a First Amendment civil rights claim against FBI agents for government censorship under the Bivens precedent, the agents may well be protected against such a suit by the doctrine of qualified immunity, or perhaps even absolute immunity, given that the Congress has not yet seen fit to provide for a constitutional tort cause of action against federal officers. Ordinarily, under the doctrine of sovereign immunity, the government is immune from suit unless it waives that immunity through legislation.
The newly-elected Republican majority in the House of Representatives has announced its intention to investigate the government’s online censorship, but unless legislation can get through Congress to allow for either federal civil rights damages and constitutional tort claims, or some sort of one-off outright compensation fund, the prospect looks bleak that victims of this massive civil rights tort will be compensated by the government for the injury it inflicted to their First Amendment rights. Perhaps the best we can hope for is the truth about what happened …if Congress shall make no law.
==end==
The Meta and Youtube cases were both assigned to the same judge.
Justice Thomas’ concurrence is rather pointedly cited by Missouri and Louisiana in their complaint.
p.1, slip op.
p.17, slip op.