The Supreme Court can dismantle the censorship-industrial complex

As the modern marketplace of ideas, Big Tech platforms are ground zero for government-coerced suppression of political speech. 

This is why fair and free elections will be in danger if the Supreme Court does not immediately put a stop to self-interested government bureaucrats pressuring social media platforms to censor Americans’ speech online.

President Biden, California Gov. Gavin Newsom (D) and the far left justify government participation in censorship by scaring people with nebulous and indefinite bogeymen. They cite “misinformation,” the supposed influence of foreign actors, conspiracy theories, a never-ending pandemic and the like.

They claim to be protecting democracy. But if the last few years have taught us anything, it is that they themselves are the primary threat from which we need protection, not ordinary people's free expression of ideas. 

Two cases — one that was argued before the Supreme Court on Mar. 18, and one that the court could choose to take up — could dictate just how far the government may go in “protecting” us at the expense of our fundamental right to decide for ourselves what information is worth believing. The court has a chance to make it clear that our freedoms cannot be so easily crushed by those in power. 

O’Handley v. Weber and Murthy v. Missouri are the culmination of a disturbing and increasingly systematic trend of government actors forcing social media companies to censor constitutionally protected speech in the name of combatting "misinformation." The government knows it cannot act on its own to silence political opponents, since that would clearly violate the First Amendment. But by forcing private actors — such as Meta, X or other massive digital platforms — to do the government’s dirty work, bureaucrats have attempted to create a loophole in the Constitution’s guarantee of the freedom of speech. 

This coordinated censorship apparatus is embedded in both federal and state government agencies, as evidenced by the parallel journeys of these two landmark cases.

In the Murthy case, the Biden administration pressured Big Tech to censor disfavored viewpoints about vaccines, election fraud and other Biden-approved narratives. In the O’Handley case, it was state agencies that pressured Big Tech as part of a nationally coordinated scheme. 

Rogan O’Handley, a conservative lawyer and political commentator, took to Twitter calling for an audit of the 2020 elections. At the behest of the deceptively named “California Office of Election Cybersecurity,” Twitter removed O'Handley’s tweets and eventually kicked him off the platform entirely.

O’Handley’s final tweet before his silencing was simple: a picture of the U.S. Capitol, surrounded by barricades, with the caption “Most votes in American history.” The information he posted was factually accurate, but somehow it ran afoul of California’s approved narrative about the election. Using the guise of the supposedly critical government function of weeding out “misinformation” in the form of mockery, California pushed Twitter to censor O’Handley. Twitter quickly obliged. 

When the government coerces private actors such as X (Twitter) to regulate speech that it cannot constitutionally regulate itself, those private actors are no longer acting of their own private volition. They have become joint venturers of the government. This joint-actor scheme to circumvent the Constitution should be subject to scrutiny under the First Amendment, just as the government itself would be if it were censoring speech directly, without using a heavily regulated agent.

Does anyone really think that California-based Big Tech platforms are in any position to say “no” to the California Secretary of State’s Office when pressured to remove their political opponents' tweets? The same question can be raised for legacy media when the White House calls editors, pressuring newspapers to censor journalists who raise legitimate concerns over vaccine efficacy, despite assurances to the contrary from Anthony Fauci. 

When the government controls what information you’re exposed to, it controls what you are allowed to believe. It has the ability to manipulate public opinion through censorship of the most popular means of discourse. 

The Supreme Court has an opportunity to resolve this dissonance and protect Americans’ freedom of speech from increasingly dictatorial government actors in state and federal agencies. The Court should grant certiorari in O’Handley v. Weber, as it did in Murthy v. Missouri, given that the two have similar facts and pertain to similar legal issues.  

The justices have an opportunity to stop government censorship masquerading as protecting Americans from vague threats such as misinformation. That “protection” has been badly abused by government actors who are primarily interested in controlling national narratives that boost their own popularity or vilify their political opponents.  

All of this is poisonous fruit from the same insidious speech-suppressing tree. The Supreme Court would do well to pull that tree out by its roots, and let free speech grow in its place.

Harmeet Dhillon is CEO and founder of the Center for American Liberty.