Government Collusion with Big Tech and the Fate of Section 230

T​he Twitter Files’ revealed government collusion with Big Tech to censor individuals and the press, but a recent injunction indicates hope for Free Speech.

July 10, 2023

By: Bobby Casey, GWP Managing Director

Big Tech I wonder how many people were genuinely shocked at the revelations of the Twitter Files? I wonder still, how many people think the Twitter Files were a big “nothing burger”.

A lot happened during the pandemic, much of which flew under the radar in the news and public square known as social media. The cited issue was “misinformation” on conclusive science.

Y​et the robust discussions about the earth being flat didn’t go anywhere.

But public health was hanging in the balance!

O​h? Discussions about whether fasting works, or whether the best diet is keto or veganism remained untouched. Ads for non-FDA approved supplements still flooded my feeds.

A few independent outlets started getting wind of other ideas, from prominent people, who were disappeared from the Twittersphere.

T​here was the Great Barrington Declaration, penned by three respected doctors from Harvard, Oxford, and Stanford Universities, and cosigned by forty-three other medical professionals. Dr. Jay Bhattacharya didn’t even have much of a Twitter presence, if at all, until he started to question the merits of the public health policies.

H​e was censored.

Alex Berenson was a New York Time’s reporter who sued Twitter for catching a perma-ban over the following tweet:

“It doesn’t stop infection. Or transmission. Don’t think of it as a vaccine. Think of it – at best – as a therapeutic with a limited window of efficacy and terrible side effect profile that must be dosed IN ADVANCE OF ILLNESS. And we want to mandate it? Insanity.”

After this, he went on to investigate many other claims around the pandemic and released a series of e books called “Unreported Truths”. Within that, he challenges the merits of the studies around the efficacy of masks.

Berenson ultimately sued Twitter and was reinstated about a year ago, and is now suing the Biden administration for censorship and first amendment violations.

I​t wasn’t just the pandemic and public health. There was also the small matter of blocking the New York Post over the Hunter Biden laptop.

Big Tech has been playing both sides of the Section 230 rule. On the one hand, if they are a platform, then they aren’t liable for the content published. If they are a publisher, then they are. But they were censoring individuals and publications over very hot topics. Topics that were arguably why the US has the First Amendment in the first place.

Section 230 gave Big Tech cover. If they allowed something to be on their platform or removed it, they weren’t liable for any wrong-doing.

W​e wrote about this, though, back in March 2020, “Encryption – The Fight Continues to Defend Privacy“, when members of congress wanted to do away with Section 230, in favor of the EARN IT Act:

According to a draft published several weeks ago, EARN IT would strip away Section 230 protections, offering them only to Internet companies who followed a list of “best practices” set up by a government commission of 15 people. This commission, set up in the name of protecting children, will be dominated by law enforcement agencies.

I​t passed the Senate, but not the House. Lindsay Graham of South Carolina has reintroduced it twice more since.

Elon Musk buying Twitter and subsequently releasing the Twitter Files put a huge wrench in the censorial works of whomever was pulling those strings. The net revelation behind the Twitter Files was that members of the FBI and Biden Administration were in regular and direct contact with people at Twitter calling for the cancellation of ideas and people.

Not long after that evidence was reported, attorney generals from both the states of Louisiana and Missouri filed suits against the US government for its first amendment violations. And out of that, came this injunction:

A U.S. federal judge on Tuesday restricted some agencies and officials of the administration of President Joe Biden from meeting and communicating with social media companies to moderate their content, according to a court filing.

The ruling said government agencies like the Department of Health and Human Services and the FBI could not talk to social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech” under the Free Speech Clause of the First Amendment to the United States Constitution.

I​t’s not a final adjudication on the case, but it is a temporary reprieve from the til-now unmitigated communication between Big Tech and government. Naturally, there is an exception which allows for national security and criminal activity.

I​n addition to a list of federal agencies, specific individuals were also restricted from reaching out to Big Tech: White House press secretary Karine Jean-Pierre, Secretary of Homeland Security Alejandro Mayorkas, Secretary of Health and Human Services Xavier Becerra and United States Surgeon General Vivek Murthy.

People who were glad to tow the line for the government officials, were likewise fine to say, “It’s a private company, and they can do whatever they want.”

T​hat was the excuse for mask mandates, vaccine mandates, and distancing. They are a private company, they have the right to set whatever rules they want.

U​h huh. Was it their rules? Would they have done any of that if not urged in some way by the government? That the government wasn’t telling people directly to do anything, but rather having corporations be their enforcers, doesn’t make it anymore lawful.

I​n fact, it makes it rather fascistic. And that’s the important nature of this particular ruling. Can platforms that claim the immunity of Section 230 still carry out censorial action as if they were publishers? Likewise, is it a lawful work-around that governments deputize corporations to enforce their edicts?

T​he hope is that as this goes to trial, the world finds out whether free speech is a right or a privilege.

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