The greatest censor is government not social media giants
Fear of government retaliation hangs like a Sword of Damocles over dissenters
We are doomed to stagnation and folly if freedom of speech is compromised. As Justice Oliver Wendell Holmes observed, time has upset many fighting faiths, and the optimal test of truth is the ability to triumph in a free marketplace of ideas.
It is right to take alarm at emerging evidence that the FBI interceded with social media giants like Twitter to jawbone censorship of news that grates in the corridors of power, for example, Hunter Biden’s influence peddling and wretched depravities. Such informal censorship is flagrantly unconstitutional. The flagship Supreme Court case is Bantam Books v. Sullivan, 372 U.S. 58 (1963).
There, Rhode Island created the equivalent of a morality Commission tasked with listing publications thought to be obscene or tending to corrupt youth. The lists were shared with local police departments and the publishers, who were told to cease publication of the allegedly offensive materials or risk criminal prosecution. The predicable result was censorship of publications marked with a scarlet letter by the Commission. The Supreme Court held that the lists of forbidden publications violated the First Amendment, and explained: “What Rhode Island has done…has been to subject the distribution of publications to a system of prior administrative restraints, since the Commission is not a judicial body and its decisions to list particular publications as objectionable do not follow judicial determinations that such publications may lawfully be banned.”
The greatest danger of informal censorship that evades judicial condemnation, however, comes from the multi-trillion-dollar military-industrial-security complex and the regulatory state. Tens of millions of Americans working for the Department of Defense, defense contractors, and the intelligence community are intimidated from criticizing the warfare state or surveillance state for fear of losing their jobs, demotions, or ostracism. The handful of exceptions prove the rule.
Defense Department employee A. Ernest Fitzgerald went through hell and high water for a decade or more for revealing Lockheed’s massive C-5A cost overrun. President Ronald Reagan’s secretary of Air Force, Verne Orr, called Fitzgerald “the most hated person in the Air Force.”
The national security agency’s Bill Binney and J. Kurt Wiebe were expelled for protesting internal corruption, mismanagement, and wrongdoing.
The government has moved heaven and earth to vilify and destroy Edward Snowden for disclosing the national security agency’s industrial scale violations of the Fourth Amendment through warrantless surveillance targeting the “not-yet-guilty.”
Tens of millions of more Americans work in heavily regulated industries, for example, pharmaceuticals regulated by the Food and Drug Administration or the financial sector regulated by the Board of Governors of the Federal Reserve, the Comptroller of the Currency, and the Federal Deposit Insurance Corporation.
The regulators are endowed with virtually limitless discretion to inflict huge financial injuries on the regulated without meaningful recourse to the courts. The FDA, for instance, must approve drugs for safety and effectiveness based on costly controlled studies. Bringing a new drug to market in 2022 on average cost $2 billion. No pharmaceutical officer or employee would risk FDA disapproval of a new drug and loss of that sum by disparaging the agency or its officers, for example, prohibitions by the FDA on truthful advertising protected by the First Amendment. Approval protocols are infinitely vague or manipulable, which enable retaliation against FDA critics.
Bank regulators must approve mergers or acquisitions. They police compliance with the Community Reinvestment Act (CRA), requiring an uncertain threshold of lending within a bank’s community. These regulatory decisions are highly subjective, and evade judicial review under the Administrative Procedures Act. Regulated banks thus generally refrain from exposing mismanagement, lawlessness, or abuses by bank regulatory agencies for fear of provoking disapproval of bank consolidations or fines under the CRA.
Corresponding examples of regulatory intimidation in other industries abound. The consequence is an inert or docile citizenry and government sclerosis. As Upton Sinclair put it, “It is difficult to get a man to understand something, when his salary depends upon his not understanding it.”
To the extent government grows, to that extent free speech shrinks.
This alarming phenomenon is the elephant in the living room that is never discussed.