While I agree what Trump is doing is worse and qualitatively different, I’ve come to the view that what the Biden administration did violated the spirit of the first amendment. While I detest vaccine skeptics, the government shouldn’t pressure private companies to censor them.
Additionally, it generated real backlash from many previously non-partisan or even Democratic-leaning figures, as well as the tech industry itself. This is part of what drove people like Joe Rogan and even Elon Musk to the right. And now it makes Democrat’s criticisms of Trump on speech feel not as credible with these people. So even setting aside the legality and morality, pragmatically it was a disaster.
I don’t think the actions of Joe Biden are what drive Joe Rogan or Elon Musk to the “right”. Blaming Elon’s politics on Joe Biden makes him seem like a mere reactionary animal. He just moves away from negative stimulus. Clearly that’s not the case, given the public breakdown he had with Trump over deep disagreements that affect his bottom line. Obviously there’s a deeper appeal in the MAGA movement to him personally.
Based on this kind of cold calculus of whether giving up civil liberties is worth it if you argue it within a legal framework, I’m sure you can rationalize all the worst excesses of the well intentioned War on Terror. Weak article.
I doubt that you actually can. At no point were thousands of people dying per week because of terrorism, and any connection between the kinds of things being clamped down on and actual terror deaths were more tenuous than the connections between antivax memes and covid deaths.
I think the mechanism where you radicalize young Muslim men by being so heavy handed about it is probably similar to the mechanism where you radicalize the conspiracy curious anti-vax types the more you became heavy handed about it. You’re assuming the crackdown doesn’t have unintended long term consequences. We have RFK in the White House, I won’t blame the people in charge of covid just like I won’t ultimately blame the FBI for creating terrorists because ultimately the blame lies with the person who engages in such acts, but I do think there’s *some* blame to go around.
War on Terror was well intentioned but produced long term bad results. How is that different from COVID crackdown? Long term RFK is now going to bring back measles, how has it worked out better even in a consequentialist way. This heavy handed shit almost always backfires.
Was it well-intentioned? Was the invasion of Iraq just a good idea gone wrong? And even if you had a good intention, does that justify how terrible it was in practice?
The excesses of the post 9/11 era are harder to justify than you make it seem. Especially since they directly led to the current abuse of executive power we are currently experiencing.
I’m actually not justifying it, I’m trying to question the justification and well-intentioned nature of COVID censorship by equating it to War on Terror. I’m trying to undermine the case for COVID censorship, not trying to justify war on terror.
Your main point seems to be "jawboning is different in kind from government coercion" and you're convincing! But you keep coming around to add "and suppressing COVID speech was much more important, too!" (Not your literal quotes. Sorry.)
My problem is that your second point makes me doubt the sincerity of your first. Biden didn't really violate the First Amendment on COVID, but it might have been ok if he had?
Carr was wrong. Trump was wrong. Ted Cruz, amazingly, was right. Please don't throw that away by suggesting that government coercion could be hunky-dory if the issue is serious enough.
So, I see my argument a little differently, and maybe it needed an extra line to clarify.
But my point is that Biden administration was probably legally allowed to do what they did, though they got close to the line. The second question is whether they should have done it, given that we are a society that values free speech. I'm saying that even if you stay on the right side of precedent in a technical sense, you still have a higher hurdle to get over.
The second part isn't a simple question here, but given the circumstances of a pandemic, I think their actions were justifiable. The government had a legitimate interest in preventing people from being misled into choices that could kill them and possibly others (in contrast with silencing a comedian). And given what we knew at the time, I think it made sense for them to push the countries' largest publishers on these issues. The strategy may not have worked super well, unfortunately. But if you're doing the moral calculus, separate from a purely legal one, I think that all is important to consider when evaluating their actions.
But what's the principal involved? You can go on all day about how *your* moral calculus in this means an exception can be made, but that's precisely the problem. Then the other side can say that in the case of their suppressing free speech that *their* moral calculus means an exception can be made.
The principal involved is that it's important to save lives when you can, which among other things underpins the ethics of entire world religions.
Once you've gotten past the legal First Amendment question, there's no getting around having to do some kind of subjective moral calculus about what we should and shouldn't tolerate as a society. That's why this stuff is hard. Your personal calculation may be that speech concerns outweigh everything else, and so it's wrong to exert pressure even if it's constitutional. But there are a lot of people who I think don't agree. That's why we have to argue about it.
I'm not always a consequentialist, but I can't help but wonder if more people are harmed in the long run because vaccines have become more polarized than ever?
In any case, I would rather the Biden administration have fought speech with more speech rather than leaning on illiberal tactics, no matter how much they (or you) believe it was justified at the time.
Thank you for the ethics lesson. I didn't actually know that about the sanctity of life wrt "entire world religions." However, when I'm asking about "the principal involved", I'm not asking about whatever your particular principle is (in that, “I asked for one virtue, and you’ve given me a whole swarm, like bees.”), but what is the principle involved when determining that any particular moral calculation gets to override the free speech rule? Without that you just descend into subjective slap fights.
I mean, even the law is often basically about subjective slap fights. Constitutional law is full of tests that involve asking first whether a policy involves a "compelling" or "legitimate" government interest, where judges rely on a combination of precedent and common sense, then figuring out if it's narrowly tailored enough for the court's liking.
In this case, we're starting from the premise that Biden wasn't violating the 1st Amendment, which is our hard, fast rule about speech. Once you're beyond that, you're weighing subjective concerns and different people are going to come down on them in different ways. There's no real avoiding that.
I think the argument you actually want to make is that the First Amendment itself should simply ban the kind of pressure Biden put on the social platforms. But then you need your own limiting principal. When, if ever, can the government ask somebody not to run a story, or withhold information, or moderate certain kinds of content? (Again, this happens from time to time in regular journalism, usually for decent reasons). Is the answer really never? And if not, what are the limits on how they can ask?
Can’t the government always *ask* somebody not to run a story? I don’t think you can reasonably conflate that (“hold off publishing until the troop movement you’ve learned about is complete, in exchange we’ll give you an exclusive”) with jawboning (“do this or else; it’d be a shame if anything happened to Section 230”).
I’m sympathetic to the objection you’re trying to make here — something like, “if you say the ends justify the means for jawboning, why wouldn’t they also justify unconstitutional coercion?”
Challenge is, there is a real distinction between the state coercing private speech and the state merely trying to vigorously persuade. They have legitimate interests here, especially in national health, security, and finance cases where lives and livelihoods are at stake. But lines between these brighten or blur depending on which part of the state we’re talking about. If it’s an enforcement agency, blurry; if it’s not, then bright.
This is why it’s critical that there be auditable communication “firewalls” between enforcement agencies and administrators.
Assume that various arms of the state will always have an interest in communicating with private speech platforms. The challenge then becomes monitoring which kinds of communication from whom are most worrisome. Threats from an enforcement agency are much worse than vigorous persuasion from a non-enforcement agency.
But when the non-enforcement agent has the power to hire and fire the enforcement agent? Much trickier. This is where we have to rely on the good governance norms, like firewalls.
That said — I think pressure from Biden whitehouse senior administrators on social platforms related to COVID and election misinfo really was excessive and unjustified — even if it wasn’t illegal. It affected far more people than the Kimmel suspension, and the cases that involve substantive political disagreements seem more problematic than cases of mere personal pique. So this is a place where I’d share your suspicion of Jordan’s argument.
Curious were the Biden admins actions/jawboning unjustified because of their excess in communication/breadth or mainly unjustified because it fell into a partisan structure in politics? Basically you can jawbone if you reasonably expect the issue to be nonpartisan (vaccines are good) and align with legitimate interests of governing (vaccines safe lives and resources)?
Fwiw I think it's more the excess of communications that leads me towards it actually wasn't the Biden admins place to delve that deep into publishing/content moderation policy of social media companies on an issue by issue basis, but I can understand their motivations. But it isn't like if they had only done less (with similar outcomes) that people wouldn't still feel like it was partisan abuse of free speech as a concept if the issue is felt as deeply partisan.
Yes, that’s exactly the right distinction. Even in cases where the admin believes the topic is in the legitimate public interest, it’s the excessive communication and the scale of the platforms that made the Biden admin’s actions problematic.
It would be one thing to firmly and transparently state your views to the platforms while acknowledging their right to disagree. It’s quite another thing to repeatedly ring their executives from behind closed doors and cajole them into accepting your position.
He believes in and supports free speech, but not absolute free speech. Anyone who believes in the “shouting fire in a crowded theater” counterexample is like that, and the question is just how big the exceptions are.
How convenient – 'this time is REALLY different!'.
I think we could probably bite the bullet and get rid of the 'shouting fire in a crowded theater' exceptions at this point. They made some kind of sense – on a VERY small scale, e.g. a literal theater, and for an EXTREMELY acute emergency, e.g. a possible fire in an extremely-vulnerable-to-fire building like existed quite a while ago now. At this point, I imagine most people's experiences are like mine, e.g. EVERY 'fire alarm' is a false alarm.
A pandemic is NOT an emergency on the EXTREMELY small scale that, e.g. potentially needing to escape from a crowded theater, is – there is nothing that anyone needs to do to escape serious injury or death – on the order of MINUTES.
And, in practice, the government's censorship during the pandemic does NOT seem to have been effective, and, because they used that censorship to promote their own bullshit, it has, if anything, almost entirely degraded their credibility among a huge proportion of the people they were supposed to serve.
You're very convincing that in fact even the narrowest exceptions to free speech will be used as a pretext for censorship in the name of an ever-expanding number of 'emergencies'.
You draw a plausible distinction between the Biden administration's "intense jawboning" and Carr's explicit regulatory threats. But that distinction is thin: As you acknowledge, the Supreme Court says threats "need not be explicit," and Meta's Nick Clegg clearly felt coerced when he said they had "bigger fish to fry" with the administration.
More troubling is the underlying framework: government pressure is acceptable when lives are at stake and the speech is genuinely harmful. COVID was a "true national public health emergency," so leaning on platforms was justified.
But "crisis" is in the eye of the beholder. A future (current?) president could sincerely believe posts supporting gender-affirming care for minors constitute an emergency of child mutilation. By your logic, that belief would justify the same pressure campaign, complete with f-bombs, public shaming, and "reviewing" Section 230. They could cite statistics about irreversible harm to thousands of children with the same conviction Biden cited COVID deaths.
You'd presumably find that appalling. But once you've accepted that the executive gets to define "emergency" and then leverage that definition to pressure platforms, you've conceded the principle. The border, fentanyl, climate change—every administration will discover crises requiring speech suppression.
That's why the First Amendment shouldn’t have a "but this is really important" exception. Once you accept "good jawboning," you're just haggling over which emergencies qualify.
I don't see a ton of distinction between how Biden or Trump were trying to force media companies to quash speech they did not like. Carr was saying the quiet part loud as Trumpsters are wont to do, but to me there isn't a substantive difference in the approach, at least morally.
However, there is a huge difference in the speech they are trying to quash. While of course the government did not get everything right on COVID, trying to quash anti-vaxx and COVID disinformation is very different than trying to quash people critical of the administration. To me free speech absolutists are similar to 2nd amendment absolutists - they don't acknowledge that there are cases where some speech should not be protected, and we act like it is the height of tyranny if we aren't allowed to spread vile bullshit or be super offensive.
The problem is, trying to quash the speech ended up giving more power because they right could cry "tyranny!" and claim to be the party of free speech. And then you get a noxious admin in like the Trump admin and the speech they want to quash is anything that challenges their warped worldview. So maybe the only answer in such a dysfunctional country is to be an absolutist, I don't know. What I do know is 30 years ago this wouldn't have even been a conversation because the wackjob anti-vaxxers wouldn't have had platforms to begin with.
Why the hell are we even humoring conservatives with this Nothing Burger of a story? The Biden Admin just made requests, not mandate or orders or threats. 9 times out of 10 it was the admin saying "hey we think this post violates your websites policies about misinformation, you should take this down". There was NO pressure above the board or illegal, anyone claiming this is a violation is a bad faith conservative grifter, or not sophisticated enough to be lecturing the public about media literacy. This is literally just conservative conspiracy theorizing, which is their bread and butter at the end of the days because all of their actually policies are dogshit and unpopular so they have to manufacture outrage for people to get mad at Democrats over.
When I was a child my mom had a rule that my brother and I couldn’t touch each other, to prevent fighting. Naturally I responded by waving my hand annoyingly in front of his face taunting “ha ha, I’m not touching you”, to which he responded by punching me. My mom was smart enough to punish both of us for this.
Democrats/leftists dominate the professional and educated class, so when they try to suppress free speech they do it in a relatively legal and distributed way. Republicans are not capable of responding on the same field, so they have a choice between surrendering or trying to fight back in a much more blunt and illegal way. What Trump is doing is much worse than what Democrats and leftists did, just like punching someone is worse than waving your hand in their face. But Trump is the inevitable consequence of trying to forcibly impose speech and thought norms on a population that largely doesn’t agree with them and doesn’t know any way to fight them except with a strongman.
Do we know if the pressured the social media companies over covid origins? This gets brought up a lot and if so that I think wouod be clearly out of bounds
I think this is ultimately a lesson. What Biden did was legal, but it's not an accepted method of content moderation in this society. It also seems like a strategy the left has held onto for way too long, they have stopped trying to persuade people. I know that is an over generalization, but a lack of attempting to persuade people to our side is a huge problem.
The root of the injuries we've felt because of the First Amendment are much larger than proposing changes to the Communications Decency Act to coerce the removal of anti-vax agitprop — or the blackmailing of a TV producer to kill one of their shows by a criminal, emotionally unstable, narcissist megalomaniac.
These instances are results of the segregation of Americans during the past 35 years, into discrete "identity blocks", by broadcasters and publishers whose business strategies feature reporting ideologically biased content to capture and hold audiences. This abuse of the First Amendment has divided us into factions which can no longer communicate with one another, because their assumptions are based on different paradigms of "truth", represented by contradictory sets of facts.
Asking publishers and broadcasters to censor their content won't break the "identity blocks" which bind factions to themselves, while segregating them from others — it won't allow individuals to mingle within an environment of freely-spoken or freely-published accounts and opinions. If anything, this type of censorship encourages the opposite, causing people to hold even more tightly to their political IDs while shutting out foreign perspectives with even more anger.
This crisis won't be solved until all perspectives are available for and visible to all political identities.
The FCC had an effective way of encouraging this prior to 1987, with something called the Fairness Doctrine. Using the electromagnetic spectrum was the only way to broadcast anything at the time, so the idea was that since this spectrum was limited by physics, it could be monopolized by ideologues whose content would effectively censor the speech of those without access to the air. The Doctrine required broadcasters who editorialized to provide free access for "editorial replies" to "responsible persons of the opposing point of view", so that the very same audience which heard or saw, and was influenced by biased content could screen rebuttals which would balance their impressions. Because broadcasters were compelled to spend valuable air time on replies to each of their opinions, they were discouraged from business models featuring too much bias, in favor of more neutral presentations.
The Fairness Doctrine was made obsolete after cable TV made it possible to broadcast without using the air. We can do so much more than even that now, of course, because of the internet, so returning the Doctrine in its original form in 2025 would be absurd. Yet, an attempt should be made nonetheless, to write a new version of the Fairness Doctrine for the 21st century, which would accomplish the same outcome as the old Doctrine — the outcome of providing all individuals within all political factions exposure to all biases and interpretations, so that we can all at least communicate with one another again… because we'll all be operating with the same understanding of reality, again.
Is the problem not that Biden admin actions coincided with a broader trend of liberalism of the time — the tendency to think that policing discourse was a way of achieving important policy and political goals?
Agree pretty strongly with this. It does make me wonder if the dynamic brought up in the last section is tractable at all.
It’s always going to be true that big companies that deal broadly in “speech” have business unrelated to speech with the government. It is also true that I think government officials should not be prohibited from saying anything at all about such companies.
If both the above are true…there’s kind of an impasse on the “non-legal” dynamics discussed, right?
If any negative comment by an administration about a company that might have to have dealings with the administration is morally (not legally) treated as a free speech issue that seems insane.
While I agree what Trump is doing is worse and qualitatively different, I’ve come to the view that what the Biden administration did violated the spirit of the first amendment. While I detest vaccine skeptics, the government shouldn’t pressure private companies to censor them.
Additionally, it generated real backlash from many previously non-partisan or even Democratic-leaning figures, as well as the tech industry itself. This is part of what drove people like Joe Rogan and even Elon Musk to the right. And now it makes Democrat’s criticisms of Trump on speech feel not as credible with these people. So even setting aside the legality and morality, pragmatically it was a disaster.
I don’t think the actions of Joe Biden are what drive Joe Rogan or Elon Musk to the “right”. Blaming Elon’s politics on Joe Biden makes him seem like a mere reactionary animal. He just moves away from negative stimulus. Clearly that’s not the case, given the public breakdown he had with Trump over deep disagreements that affect his bottom line. Obviously there’s a deeper appeal in the MAGA movement to him personally.
Based on this kind of cold calculus of whether giving up civil liberties is worth it if you argue it within a legal framework, I’m sure you can rationalize all the worst excesses of the well intentioned War on Terror. Weak article.
I doubt that you actually can. At no point were thousands of people dying per week because of terrorism, and any connection between the kinds of things being clamped down on and actual terror deaths were more tenuous than the connections between antivax memes and covid deaths.
I think the mechanism where you radicalize young Muslim men by being so heavy handed about it is probably similar to the mechanism where you radicalize the conspiracy curious anti-vax types the more you became heavy handed about it. You’re assuming the crackdown doesn’t have unintended long term consequences. We have RFK in the White House, I won’t blame the people in charge of covid just like I won’t ultimately blame the FBI for creating terrorists because ultimately the blame lies with the person who engages in such acts, but I do think there’s *some* blame to go around.
War on Terror was well intentioned but produced long term bad results. How is that different from COVID crackdown? Long term RFK is now going to bring back measles, how has it worked out better even in a consequentialist way. This heavy handed shit almost always backfires.
Was it well-intentioned? Was the invasion of Iraq just a good idea gone wrong? And even if you had a good intention, does that justify how terrible it was in practice?
The excesses of the post 9/11 era are harder to justify than you make it seem. Especially since they directly led to the current abuse of executive power we are currently experiencing.
I’m actually not justifying it, I’m trying to question the justification and well-intentioned nature of COVID censorship by equating it to War on Terror. I’m trying to undermine the case for COVID censorship, not trying to justify war on terror.
Your main point seems to be "jawboning is different in kind from government coercion" and you're convincing! But you keep coming around to add "and suppressing COVID speech was much more important, too!" (Not your literal quotes. Sorry.)
My problem is that your second point makes me doubt the sincerity of your first. Biden didn't really violate the First Amendment on COVID, but it might have been ok if he had?
Carr was wrong. Trump was wrong. Ted Cruz, amazingly, was right. Please don't throw that away by suggesting that government coercion could be hunky-dory if the issue is serious enough.
So, I see my argument a little differently, and maybe it needed an extra line to clarify.
But my point is that Biden administration was probably legally allowed to do what they did, though they got close to the line. The second question is whether they should have done it, given that we are a society that values free speech. I'm saying that even if you stay on the right side of precedent in a technical sense, you still have a higher hurdle to get over.
The second part isn't a simple question here, but given the circumstances of a pandemic, I think their actions were justifiable. The government had a legitimate interest in preventing people from being misled into choices that could kill them and possibly others (in contrast with silencing a comedian). And given what we knew at the time, I think it made sense for them to push the countries' largest publishers on these issues. The strategy may not have worked super well, unfortunately. But if you're doing the moral calculus, separate from a purely legal one, I think that all is important to consider when evaluating their actions.
But what's the principal involved? You can go on all day about how *your* moral calculus in this means an exception can be made, but that's precisely the problem. Then the other side can say that in the case of their suppressing free speech that *their* moral calculus means an exception can be made.
The principal involved is that it's important to save lives when you can, which among other things underpins the ethics of entire world religions.
Once you've gotten past the legal First Amendment question, there's no getting around having to do some kind of subjective moral calculus about what we should and shouldn't tolerate as a society. That's why this stuff is hard. Your personal calculation may be that speech concerns outweigh everything else, and so it's wrong to exert pressure even if it's constitutional. But there are a lot of people who I think don't agree. That's why we have to argue about it.
I'm not always a consequentialist, but I can't help but wonder if more people are harmed in the long run because vaccines have become more polarized than ever?
In any case, I would rather the Biden administration have fought speech with more speech rather than leaning on illiberal tactics, no matter how much they (or you) believe it was justified at the time.
Thank you for the ethics lesson. I didn't actually know that about the sanctity of life wrt "entire world religions." However, when I'm asking about "the principal involved", I'm not asking about whatever your particular principle is (in that, “I asked for one virtue, and you’ve given me a whole swarm, like bees.”), but what is the principle involved when determining that any particular moral calculation gets to override the free speech rule? Without that you just descend into subjective slap fights.
I mean, even the law is often basically about subjective slap fights. Constitutional law is full of tests that involve asking first whether a policy involves a "compelling" or "legitimate" government interest, where judges rely on a combination of precedent and common sense, then figuring out if it's narrowly tailored enough for the court's liking.
In this case, we're starting from the premise that Biden wasn't violating the 1st Amendment, which is our hard, fast rule about speech. Once you're beyond that, you're weighing subjective concerns and different people are going to come down on them in different ways. There's no real avoiding that.
I think the argument you actually want to make is that the First Amendment itself should simply ban the kind of pressure Biden put on the social platforms. But then you need your own limiting principal. When, if ever, can the government ask somebody not to run a story, or withhold information, or moderate certain kinds of content? (Again, this happens from time to time in regular journalism, usually for decent reasons). Is the answer really never? And if not, what are the limits on how they can ask?
Can’t the government always *ask* somebody not to run a story? I don’t think you can reasonably conflate that (“hold off publishing until the troop movement you’ve learned about is complete, in exchange we’ll give you an exclusive”) with jawboning (“do this or else; it’d be a shame if anything happened to Section 230”).
I’m sympathetic to the objection you’re trying to make here — something like, “if you say the ends justify the means for jawboning, why wouldn’t they also justify unconstitutional coercion?”
Challenge is, there is a real distinction between the state coercing private speech and the state merely trying to vigorously persuade. They have legitimate interests here, especially in national health, security, and finance cases where lives and livelihoods are at stake. But lines between these brighten or blur depending on which part of the state we’re talking about. If it’s an enforcement agency, blurry; if it’s not, then bright.
This is why it’s critical that there be auditable communication “firewalls” between enforcement agencies and administrators.
Assume that various arms of the state will always have an interest in communicating with private speech platforms. The challenge then becomes monitoring which kinds of communication from whom are most worrisome. Threats from an enforcement agency are much worse than vigorous persuasion from a non-enforcement agency.
But when the non-enforcement agent has the power to hire and fire the enforcement agent? Much trickier. This is where we have to rely on the good governance norms, like firewalls.
That said — I think pressure from Biden whitehouse senior administrators on social platforms related to COVID and election misinfo really was excessive and unjustified — even if it wasn’t illegal. It affected far more people than the Kimmel suspension, and the cases that involve substantive political disagreements seem more problematic than cases of mere personal pique. So this is a place where I’d share your suspicion of Jordan’s argument.
Curious were the Biden admins actions/jawboning unjustified because of their excess in communication/breadth or mainly unjustified because it fell into a partisan structure in politics? Basically you can jawbone if you reasonably expect the issue to be nonpartisan (vaccines are good) and align with legitimate interests of governing (vaccines safe lives and resources)?
Fwiw I think it's more the excess of communications that leads me towards it actually wasn't the Biden admins place to delve that deep into publishing/content moderation policy of social media companies on an issue by issue basis, but I can understand their motivations. But it isn't like if they had only done less (with similar outcomes) that people wouldn't still feel like it was partisan abuse of free speech as a concept if the issue is felt as deeply partisan.
Yes, that’s exactly the right distinction. Even in cases where the admin believes the topic is in the legitimate public interest, it’s the excessive communication and the scale of the platforms that made the Biden admin’s actions problematic.
It would be one thing to firmly and transparently state your views to the platforms while acknowledging their right to disagree. It’s quite another thing to repeatedly ring their executives from behind closed doors and cajole them into accepting your position.
I agree that you're not a hypocrite – you never believed in or supported free speech in the first place!
He believes in and supports free speech, but not absolute free speech. Anyone who believes in the “shouting fire in a crowded theater” counterexample is like that, and the question is just how big the exceptions are.
How convenient – 'this time is REALLY different!'.
I think we could probably bite the bullet and get rid of the 'shouting fire in a crowded theater' exceptions at this point. They made some kind of sense – on a VERY small scale, e.g. a literal theater, and for an EXTREMELY acute emergency, e.g. a possible fire in an extremely-vulnerable-to-fire building like existed quite a while ago now. At this point, I imagine most people's experiences are like mine, e.g. EVERY 'fire alarm' is a false alarm.
A pandemic is NOT an emergency on the EXTREMELY small scale that, e.g. potentially needing to escape from a crowded theater, is – there is nothing that anyone needs to do to escape serious injury or death – on the order of MINUTES.
And, in practice, the government's censorship during the pandemic does NOT seem to have been effective, and, because they used that censorship to promote their own bullshit, it has, if anything, almost entirely degraded their credibility among a huge proportion of the people they were supposed to serve.
You're very convincing that in fact even the narrowest exceptions to free speech will be used as a pretext for censorship in the name of an ever-expanding number of 'emergencies'.
You draw a plausible distinction between the Biden administration's "intense jawboning" and Carr's explicit regulatory threats. But that distinction is thin: As you acknowledge, the Supreme Court says threats "need not be explicit," and Meta's Nick Clegg clearly felt coerced when he said they had "bigger fish to fry" with the administration.
More troubling is the underlying framework: government pressure is acceptable when lives are at stake and the speech is genuinely harmful. COVID was a "true national public health emergency," so leaning on platforms was justified.
But "crisis" is in the eye of the beholder. A future (current?) president could sincerely believe posts supporting gender-affirming care for minors constitute an emergency of child mutilation. By your logic, that belief would justify the same pressure campaign, complete with f-bombs, public shaming, and "reviewing" Section 230. They could cite statistics about irreversible harm to thousands of children with the same conviction Biden cited COVID deaths.
You'd presumably find that appalling. But once you've accepted that the executive gets to define "emergency" and then leverage that definition to pressure platforms, you've conceded the principle. The border, fentanyl, climate change—every administration will discover crises requiring speech suppression.
That's why the First Amendment shouldn’t have a "but this is really important" exception. Once you accept "good jawboning," you're just haggling over which emergencies qualify.
I don't see a ton of distinction between how Biden or Trump were trying to force media companies to quash speech they did not like. Carr was saying the quiet part loud as Trumpsters are wont to do, but to me there isn't a substantive difference in the approach, at least morally.
However, there is a huge difference in the speech they are trying to quash. While of course the government did not get everything right on COVID, trying to quash anti-vaxx and COVID disinformation is very different than trying to quash people critical of the administration. To me free speech absolutists are similar to 2nd amendment absolutists - they don't acknowledge that there are cases where some speech should not be protected, and we act like it is the height of tyranny if we aren't allowed to spread vile bullshit or be super offensive.
The problem is, trying to quash the speech ended up giving more power because they right could cry "tyranny!" and claim to be the party of free speech. And then you get a noxious admin in like the Trump admin and the speech they want to quash is anything that challenges their warped worldview. So maybe the only answer in such a dysfunctional country is to be an absolutist, I don't know. What I do know is 30 years ago this wouldn't have even been a conversation because the wackjob anti-vaxxers wouldn't have had platforms to begin with.
Why the hell are we even humoring conservatives with this Nothing Burger of a story? The Biden Admin just made requests, not mandate or orders or threats. 9 times out of 10 it was the admin saying "hey we think this post violates your websites policies about misinformation, you should take this down". There was NO pressure above the board or illegal, anyone claiming this is a violation is a bad faith conservative grifter, or not sophisticated enough to be lecturing the public about media literacy. This is literally just conservative conspiracy theorizing, which is their bread and butter at the end of the days because all of their actually policies are dogshit and unpopular so they have to manufacture outrage for people to get mad at Democrats over.
When I was a child my mom had a rule that my brother and I couldn’t touch each other, to prevent fighting. Naturally I responded by waving my hand annoyingly in front of his face taunting “ha ha, I’m not touching you”, to which he responded by punching me. My mom was smart enough to punish both of us for this.
Democrats/leftists dominate the professional and educated class, so when they try to suppress free speech they do it in a relatively legal and distributed way. Republicans are not capable of responding on the same field, so they have a choice between surrendering or trying to fight back in a much more blunt and illegal way. What Trump is doing is much worse than what Democrats and leftists did, just like punching someone is worse than waving your hand in their face. But Trump is the inevitable consequence of trying to forcibly impose speech and thought norms on a population that largely doesn’t agree with them and doesn’t know any way to fight them except with a strongman.
Yes, you are. Simple as.
Do we know if the pressured the social media companies over covid origins? This gets brought up a lot and if so that I think wouod be clearly out of bounds
I think this is ultimately a lesson. What Biden did was legal, but it's not an accepted method of content moderation in this society. It also seems like a strategy the left has held onto for way too long, they have stopped trying to persuade people. I know that is an over generalization, but a lack of attempting to persuade people to our side is a huge problem.
This was worth the read and the ensuing #DiscomfortOfThought.
To add to the pain of others, it would be cool to apply this mode of analysis to the way noncombusted nicotine is communicated about and regulated.
An important disclosure: I consult to Juul Labs on nicotine vapor for tobacco harm minimization.
A few pre-reads for the curious:
https://ajph.aphapublications.org/doi/10.2105/AJPH.2021.306416 - and check out the invited commentary (https://ajph.aphapublications.org/doi/full/10.2105/AJPH.2021.306457) and subsequent correspondence
https://clivebates.com/e-cigarette-risk-perceptions-an-american-crime-scene/
The root of the injuries we've felt because of the First Amendment are much larger than proposing changes to the Communications Decency Act to coerce the removal of anti-vax agitprop — or the blackmailing of a TV producer to kill one of their shows by a criminal, emotionally unstable, narcissist megalomaniac.
These instances are results of the segregation of Americans during the past 35 years, into discrete "identity blocks", by broadcasters and publishers whose business strategies feature reporting ideologically biased content to capture and hold audiences. This abuse of the First Amendment has divided us into factions which can no longer communicate with one another, because their assumptions are based on different paradigms of "truth", represented by contradictory sets of facts.
Asking publishers and broadcasters to censor their content won't break the "identity blocks" which bind factions to themselves, while segregating them from others — it won't allow individuals to mingle within an environment of freely-spoken or freely-published accounts and opinions. If anything, this type of censorship encourages the opposite, causing people to hold even more tightly to their political IDs while shutting out foreign perspectives with even more anger.
This crisis won't be solved until all perspectives are available for and visible to all political identities.
The FCC had an effective way of encouraging this prior to 1987, with something called the Fairness Doctrine. Using the electromagnetic spectrum was the only way to broadcast anything at the time, so the idea was that since this spectrum was limited by physics, it could be monopolized by ideologues whose content would effectively censor the speech of those without access to the air. The Doctrine required broadcasters who editorialized to provide free access for "editorial replies" to "responsible persons of the opposing point of view", so that the very same audience which heard or saw, and was influenced by biased content could screen rebuttals which would balance their impressions. Because broadcasters were compelled to spend valuable air time on replies to each of their opinions, they were discouraged from business models featuring too much bias, in favor of more neutral presentations.
The Fairness Doctrine was made obsolete after cable TV made it possible to broadcast without using the air. We can do so much more than even that now, of course, because of the internet, so returning the Doctrine in its original form in 2025 would be absurd. Yet, an attempt should be made nonetheless, to write a new version of the Fairness Doctrine for the 21st century, which would accomplish the same outcome as the old Doctrine — the outcome of providing all individuals within all political factions exposure to all biases and interpretations, so that we can all at least communicate with one another again… because we'll all be operating with the same understanding of reality, again.
Is the problem not that Biden admin actions coincided with a broader trend of liberalism of the time — the tendency to think that policing discourse was a way of achieving important policy and political goals?
Agree pretty strongly with this. It does make me wonder if the dynamic brought up in the last section is tractable at all.
It’s always going to be true that big companies that deal broadly in “speech” have business unrelated to speech with the government. It is also true that I think government officials should not be prohibited from saying anything at all about such companies.
If both the above are true…there’s kind of an impasse on the “non-legal” dynamics discussed, right?
If any negative comment by an administration about a company that might have to have dealings with the administration is morally (not legally) treated as a free speech issue that seems insane.
I don’t think that was ever suggested!