To Whom Should the Right of Speech Belong?

On Sunday, December 17, Dr. Jay Bhattacharya of Stanford, will debate Dr. Kate Klonick, Associate Professor of Law at St. John’s University Law School, on whether Judge Terry Doughty’s July 4 injunction restricting the Biden Administration’s communications with social media platforms hindered or helped “national internet policy.” 

The topic refers to the federal district court’s 155-page ruling in Missouri v. Biden, which ordered the federal government to halt its efforts to induce Big Tech to censor its political opponents. Judge Doughty wrote that if the plaintiffs’ allegations are true, the case “arguably involves the most massive attack against free speech in United States’ history.” 

Dr. Bhattacharya is a Plaintiff in the lawsuit, which alleges that he and his colleagues “experienced extensive censorship on social media” for their criticism of the US Government’s Covid policies. In his affidavit, Dr. Bhattacharya testifies that there was a “relentless covert campaign of social-media censorship of our dissenting view from the government’s preferred message.” 

Dr. Klonick previewed her support for the Government’s ability to work with private companies to control the flow of information in a July op-ed for the New York Times, “The Future of Online Speech Shouldn’t Belong to One Trump-Appointed Judge in Louisiana.” 

Klonick’s article raises factual and analytical questions that Bhattacharya should raise in their debate.

Does the Future of Online Speech Belong to Anyone?

Klonick’s headline is fundamentally at odds with the concept of free speech. Under the First Amendment, speech does not belong to any person or entity. Future speech receives heightened protections under Supreme Court precedent to curtail prior restraint. 

Next Sunday, Dr. Bhattacharya should ask Klonick: who should “speech” belong to? This is not a pedantic or rhetorical point; those with control over information instinctively protect their own interests. A survey of American power structures demonstrates the corruption that power breeds.

Should the future of speech belong to CISA? The Department of Homeland Security subdivision monitored speech in the 2020 election through “switchboarding,” a process in which it flagged content for removal from social media platforms. 

The US Security State censored posts related to natural immunity, Hunter Biden’s laptop, the lab-leak theory, and side effects of the vaccine, many of which were later proven true. In each instance, the suppression of information benefitted the country’s most powerful institutions. 

Or should it belong to the Biden Administration? Every day, the White House slowly kills Julian Assange in Belmarsh Prison. The President hasn’t accused the Wikileaks publisher of falsehoods; instead, Assange has spent over ten years in confinement for disrupting the preferred narrative of the American political class. 

Should speech belong to unelected bureaucrats? Biden cronies like Rob Flaherty and Andy Slavitt have worked for years to control Americans’ access to information, including censoring “mal-information,” meaning “often-true information” that they consider “sensational.” 

Should it instead belong to health officials like Dr. Anthony Fauci? Fauci learned that he was complicit in funding the Wuhan Institute of Virology on January 27, 2020, and orchestrated a cover-up campaign to shield himself from criticism and potential legal liability. He called for a “quick and devastating… take down (sic)” of the Great Barrington Declaration, co-authored by Dr. Bhattacharya, because it questioned his judgment on lockdowns. 

Our First Amendment demands that Congress shall make no law abridging the freedom of speech or of the press. Alleged falsehood does not overturn this principle. As the Supreme Court recognized in United States v. Alvarez: “Some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation.”

Free speech is predicated on the notion that it belongs to no man or government entity. Klonick’s entire position is based on her opposition to that pillar of constitutional liberty.

The Flaws in Klonick’s Argument 

Beyond the title, each prong of Dr. Klonick’s argument relies on falsehoods. First, she described the case as “part of a wider war conservatives believe they are fighting, in which tech executives and Democratic government officials are supposedly colluding to censor conservative voices.”

Like Professor Larry Tribe, the censors use terms like believe and supposedly to imply the censorship doesn’t exist. They call it a “thoroughly debunked conspiracy theory” while ignoring the documented suppression of Alex Berenson, Jay Bhattacharya, the Great Barrington Declaration, Robert F. Kennedy, Jr., and others. 

Klonick never mentions that Facebook banned users who promoted the lab-leak hypothesis at the behest of the CDC, that the Biden Administration launched a campaign to censor dissent surrounding vaccines in July 2021, or that the Twitter Files demonstrated the infiltration of the US Security State in Big Tech. Acknowledging those facts would unravel her premise. 

Second, Klonick argued that the injunction was “overbroad” because it “seems to prevent anyone in the Biden administration from having any kind of communication with online platforms about matters related to speech.” 

Here, she either didn’t read the order or deliberately misrepresented it. The injunction does not “prevent anyone” in government from communicating with online platforms “about matters related to speech,” as she claims; to the contrary, the injunction explicitly permits the Defendants to communicate with social media companies provided it does not infringe upon “free speech [protected] by the Free Speech Clause in the First Amendment.”

Third, she described the Biden Administration’s demands to social media giants to remove content as “classic examples of what political scientists call jawboning: the government’s use of public appeals or private channels to induce change or compliance from businesses.”

This ignores the inter-agency and systemic nature of what Michael Shellenberger calls the “Censorship Industrial Complex.” Recent reports have revealed military contractors’ role in establishing systems for global censorship and the Intelligence Community’s direct involvement in the operations of our information centers. 

The “content moderation” demands were not mere requests that could be freely accepted or denied. As Brownstone has detailed, they were mafia-like tactics where thuggish officials used the threat of retaliation to demand compliance. 

Klonick exemplifies the censors’ repeated strategy: deny, deflect, and defend. The prongs of her augment are inherently contradictory. She defends the censorship tactics that she pretends don’t exist. Further, she either remains willfully blind to the corruption behind the usurpation of First Amendment freedoms or deliberately omits any mention of it. 

No matter her intentions or misunderstandings, her aim is unconstitutional.

The Pretext for Tyranny

Pro-censorship advocates like Klonick and The New York Times imply that the internet presents unique challenges that require the government to “stifle disinformation.” But “disinformation” has long been the pretext for tyrants to banish unwanted speech. 

In 1919, the Supreme Court upheld the Wilson Administration’s convictions of journalists, immigrants, and presidential candidate Eugene Debs for their opposition to the Great War. Charles Schenck, a pamphleteer, argued that the military draft violated the US Constitution. Debs told his followers, “You need to know that you are fit for something better than slavery and cannon fodder.” 

Justice Oliver Wendell Holmes Jr. affirmed their jail sentences, offering the now-famous slander that the First Amendment did not protect “falsely shouting fire in a crowded theater.” 

Holmes’ metaphor was a precursor to disinformation. It dismissed the dissidents as liars and accused them of endangering those around them. In the Covid era, we saw the slanderous nature of Holmes’ glib principle return to the public square as men like Dr. Bhattacharya were accused of killing grandmothers, hating teachers, and spreading Russian propaganda. 

A century after the censorship of the Great War, Dr. Klonick asserts that the future of speech should belong to someone, just not Trump-appointed judges. But history, through figures such as Holmes, warns us of the tyranny inherent in that principle.

As one Irish Senator recently demonstrated, censors justify their totalitarianism in the name of the “common good.” They march under innocuous banners like public health, anti-racism, and civility. 

But the results always serve the censors’ interests, stifling dissent to augment power. 

Judge Doughty’s injunction may have flaws, but on the question of whether it advances or hinders free speech in the United States, the answer is undeniable. Missouri v. Biden is a litmus test for Americans. Either the Government has a right to curate citizens’ newsfeeds by using the power of the federal government to nationalize our information centers, or we embrace the First Amendment and unshackle ourselves from the militarized system of informational warfare that has dominated our airwaves for over three years. Dr. Klonick must answer, who would she appoint to control the future of our speech, to determine whether there really is fire in the theater?