It’s not so cut and dry, because believers in free speech can believe that the federal government and its employees should also be free to speak.
The legal theory at stake here is that all government speech is inherently coercive. But this is not necessarily true, or aligned with free speech as a principle of society.
Any time someone says “we must protect free speech by legally enjoining the following people from speaking,” I am suspicious.
> It’s not so cut and dry, because believers in free speech can believe that the federal government and its employees should also be free to speak.
If the speech the government officials are engaging in is a demand to censor the political speech of citizens, then we are looking at a violation of the First Amendment.
Nobody is saying that government officials can't engage in other kinds of speech that don't violate the Bill of Rights.
> If the speech the government officials are engaging in is a demand to censor the political speech of citizens, then we are looking at a violation of the First Amendment
"Censor" is doing a lot of work here.
It's important for the government to engage in public speech that may lead another person to self-censor. E.g., a press release saying "FYI: publishing your how-to-build-a-nuke guide is gonna help crazy people bomb US cities, please don't do that."
If gov speech is inherently coercive, then the gov is NOT allowed to make that request. (which feels dumb to me) In reality, it's more likely a court would hold they can say that; they just can't imprison the publisher (or audit their taxes more aggressively) as a result.
So the gov can def say things that would lead to self-censorship. They just can't be dicks about it.
> So the gov can def say things that would lead to self-censorship. They just can't be dicks about it.
The government is going to have a hard time claiming they didn't engage in coercion when they've been actively threatening to yank the Section 230 protections of the Communications Decency Act if the platforms don't step up the censorship.
>You may have never heard of it, but Section 230 of the Communications Decency Act is the legal backbone of the internet. The law was created almost 30 years ago to protect internet platforms from liability for many of the things third parties say or do on them.
Decades later, it’s never been more controversial. People from both political parties and all three branches of government have threatened to reform or even repeal it.
>If gov speech is inherently coercive, then the gov is NOT allowed to make that request. (which feels dumb to me) In reality, it's more likely a court would hold they can say that; they just can't imprison the publisher (or audit their taxes more aggressively) as a result.
Governments absolutely can be coercive, but that doesn't mean all government speech is coercive.
Claiming (you're not, just expanding on your point) that government speech is inherently coercive is ridiculous on its face.
My local government sends me a "voter guide" a couple months before every election. By that logic, that means the government is coercing me to vote.
CISA[0] sends me multiple emails a day telling me to apply patches or mitigations to address vulnerabilities/security issues.
CISA is a government agency. By that logic, by doing the above, they are coercing me to manage my private property to their whim.
The CIA is a government agency. Their "World Fact Book"[1] argues against travel to certain destinations. By that logic, they're coercing people to only travel where the CIA wants you to travel.
There are hundreds (thousands?) of other examples of government speech that isn't coercive. Was there coercion WRT communications between the government and social media companies? I have no idea as I don't know all the facts of the case. And neither does anyone posting in this thread.
If the government was coercive, then let's (metaphorically) put them up against the wall to be shot. If not, then let's do it for real. /s
The threat of more aggressive tax audits or regulations or whatever is always there. It doesn't have to be spelled out. Piss off the government and they have a billion ways to make you feel pain. It would be absurd if the government could "suggest" you do something and this was considered not an abuse because they didn't literally, at that exact moment, spell out the penalties they would impose for non-compliance.
Of course in a theoretically ideal system laws are precise enough that governments can't simply make your life worse for getting on the wrong side of them. But nobody seems willing to stomach the level of rigor that would require from lawmakers. Three Felonies A Day and such.
Demands are free speech, even if unreasonable. The First Amendment constrains the application of the power of law, like prosecution and imprisonment. Which is not what happened in these cases.
When a government official demands that the political speech of citizens be censored, that is not protected speech.
If you recall, Trump wasn't allowed to block citizens who were critical of him on Twitter for the same reason.
> In a 29-page ruling on Tuesday, a three-judge panel of the 2nd U.S. Circuit Court of Appeals unanimously upheld a lower court's decision that found that Trump violated the First Amendment when he blocked certain Twitter users
Speech does not censor speech; this is an essential core of the concept of free speech.
If I tell you to take down your comments, I am not censoring you. I’m speaking. It’s only censorship if I can force you to take them down.
The same is true for federal officials; just telling someone to shut up is not censorship. Without an actual threat of force, it’s not censorship or intimidation.
Note that I’m not arguing that intimidation cannot and does not happen. But intimidation requires an actual threat. Not just an angry email.
The ironic thing is that federal officials can speak freely because of the First Amendment. It gives them license to speak because actual legal protections exist for citizen speech. The power of federal officials is well constrained under U.S. law. They can tell a media company to change their content, and the company can say “no.” Because of the First Amendment.
We know from the Twitter document dumps that government officials on both sides of the aisle have been demanding that speech (and speakers) critical of them, their preferred policies and/or their political party be censored.
> intimidation requires an actual threat
Threatening to yank section 230 of the Communications Decency Act if platforms don't ramp up their censorship is an actual threat.
> You may have never heard of it, but Section 230 of the Communications Decency Act is the legal backbone of the internet. The law was created almost 30 years ago to protect internet platforms from liability for many of the things third parties say or do on them.
Decades later, it’s never been more controversial. People from both political parties and all three branches of government have threatened to reform or even repeal it.
Come on, none of the people involved in this case had the power to “yank” Section 230. I feel like you don’t have a solid handle on how government actually works, which is hampering this discussion.
You are falsely speaking of Federal Officials as if they are not acting in a government capacity, and therefore have their freedom of speech in that capacity protected by the Constitution.
The opposite is true.
The Constitution's protection of individual citizen free speech very specifically is a restriction on the government (and its officials acting in government capacity, which is how the government speaks) from acting to limit the speech of citizens under most circumstances.
Which is exactly the case in question.
This is how Constitutional protections work. They limit the capacity of the government and its officials in order to protect the Rights of individual citizens.
Case law has long held that even the politest censorship request by the government is viewed as threat of force.
The propaganda around this issue is weak to the point of being insulting.
Below, I further frame the argument against the false-assertion that the government has free speech protections under the Constitution.
The government is specifically restricted by the Constitution in order to convey Rights to citizens.
Just as the FBI does not have Constitutionally protected free speech rights to request censorship of citizens, no matter how politely requested, the FBI can not legally "request of you" to report to prison for five years in the absence of being convicted of a crime.
As any such request carries the presumption of force.
This restriction protects the Constitutional Rights of citizens.
I can request that you report to prison. That is protected speech. I can request that speech be censored. That is protected speech.
Aside from my lack of power and potential force to be able to effect those outcomes, the Constitution also exists to protect individuals from my such requests should I, for instance, then drum up a mob (akin to a government) in order to try to intimidate or force results.
The government is not an individual with Constitutional Rights. It is the entity that the Constitution exists to protect individuals against.
You're speaking of the difference between constitutional literalism, and constitutional intent. The 2nd Amendment, interpreted literally, means I should be able to build a nuke. After all there are no explicit limits. That obviously was not the intent of the amendment by any stretch of the imagination. Such a consideration was never dealt with because this was simply outside any sort of world the Founding Fathers could have imagined.
So too here with the 1st amendment. Interpreted literally, you're absolutely correct. Intimidation isn't passing a law, but obviously the government using threats to censor billions of people (since this would expand even beyond the US) is obviously contrary to every single reasonable interpretation of the 1st Amendment. Again a world where the government even could censor billions of people using intimidation alone is something the Founding Fathers could never have even begun to imagine.
You’re arguing the obvious and easy part. It’s fully settled law that intimidation can violate the First Amendment.
But under current law, intimidation must be proven (there must be an actual threat). The core question here is whether any statement, request, or demand by a federal official will be treated, by default, as intimidation under the law.
If upheld, such a standard would be a radical redefinition of the interactions between the federal government and private sector, and have some very weird and unexpected side effects.
For example, political speech is usually the most protected, but this standard would constrain tons of it. Imagine if the communications officer of a sitting Senator could get prosecuted because they asked a newspaper to alter a story they did not like. Something that happens almost every day in DC.
LOL at the "censorship requests are free speech of the government" argument.
You are trying to assign Constitutional Rights to the government in its relationship with citizens. As if the government was an individual whose rights are covered under the First Amendment and it is the citizens who are restricted from limiting the government's freedoms.
Very specifically, the First Amendment protects Freedom of Speech of US citizens by restricting what the government can do. Under the First Amendment and its case law, the government is widely restricted from censoring citizens.
Your sole rhetorical strategy was to invert that relationship in a manner that does not exist.
Beyond that, it has long been established in case law that government requests for censorship are tantamount to demands that have the threat of force behind them.
The government does not have a "right" to speech, because the government doesn't have rights. Employees for the government generally have the right to speak, unless they are speaking for the government. If they are speaking for the government, that is not their speech, but rather is government speech.
Government speech isn't inherently coercive, but government speech telling one party to muzzle another, or else, is coercive.
Hiding regulatory threats behind “simple, optional requests” is so far beyond the pale that I can’t imagine letting them get away with it. Especially when the counter argument is that the government has inalienable rights to free speech. The federal government is not some downtrodden dissident in need of protecting.
> the federal government and its employees should also be free to speak.
They are. They're not allowed to speak on _behalf_ of the government without limit, though. In this case, it's pretty clear, that's what they did.
They weren't _personally_ reaching out to Twitter as a citizen and asking for posts to be removed. They were asking as _agents_ of the government, through official communications channels established precisely for this purpose, and they did it on taxpayer paid time.
> Any time someone says “we must protect free speech by legally enjoining the following people from speaking,” I am suspicious.
The purpose of their speech is to remove the ability for others to access platforms. They are not making any legal claims or starting any legal cases, they are simply using their power to remove speech from American citizens. They have no _natural right_ to do this.
The legal theory at stake here is that all government speech is inherently coercive. But this is not necessarily true, or aligned with free speech as a principle of society.
Any time someone says “we must protect free speech by legally enjoining the following people from speaking,” I am suspicious.