[NCAC] PRIVATE CENSORSHIP – FIGHTING SUPPRESSION OF SPEECH BY NON-GOVERNMENTAL ACTORS

https://dersh.substack.com/p/if-at-and-t-can-silence-newsmax-who

If AT&T Can Silence Newsmax, Who Is Next? | Opinion

Alan Dershowitz
Feb 22
AT&T's recent deplatforming of Newsmax, one of America's most influential cable news channels, should alarm everyone, including liberals. We are all at risk when censorship occurs—when one is silenced based on his or her point of view.

The facts strongly suggest that partisan and ideological motives played a sizable role in AT&T and DirecTV's decision to remove Newsmax on January 24, when some 13 million homes were deprived of the channel—including my own. After the recent State of the Union address, I turned to Newsmax for their coverage, but was surprised to find it suddenly missing from my channel guide.

Newsmax has been quite familiar to me: For several years now, I have been a legal analyst for the network. While the channel is center-right in its political orientation, my liberal positions are welcomed without any hesitation.

In my book The Case Against the New Censorship, I studied the growing movement to silence dissenting views, of which Newsmax now appears to be a victim.

Publicly, DirecTV and AT&T (DirecTV's 70% owner, with financial firm TPG owning the remaining 30%) say the move to deplatform Newsmax was about "cutting costs" and saving customers money. But when one notes that Newsmax was the fourth-highest-rated cable news network and that its license fee requests are modest (about a $1 per subscriber per year), the DirecTV decision doesn't make much business sense. Indeed, there are dozens of channels that DirecTV carries that cost much more than Newsmax, but have much lower ratings.

While DirecTV's decision may have been legally permissible, it was wrong and frankly un-American to deny Newsmax access to its platform, making it impossible for viewers to see the channel and exercise their civic right to take part in the marketplace of ideas.

Over a year ago, DirecTV carried three conservative-leaning channels, including One America News Network (OANN), a hard-right network. Meanwhile, DirecTV has continued to offer a panoply of left-leaning channels. In the past year, then DirecTV and AT&T have deplatformed two of their only three conservative news channels.

As one of America's largest companies, AT&T has a duty to abide by "good corporate citizenship," and thus to provide ideological balance in its choice of platformed TV networks. It clearly has not done so.

While private censorship is often legal, there are potential constitutional concerns if the government encouraged AT&T to shut down Newsmax.

As the case may be, in 2021, Democrats on the House Commerce Committee held hearings to investigate pay-TV systems for carrying conservative channels that were allegedly spreading "misinformation." On February 22, 2021, Reps. Anna Eshoo (D-CA) and Jerry McNerney (D-CA) wrote to AT&T CEO John Stankey demanding to know if he was "planning to continue carrying Fox News, Newsmax, and OANN on U-verse, DirecTV, and ATT TV, both now and beyond any contract renewal date."

A year later, in February 2022, as its contract with OANN neared its end, AT&T announced it was deplatforming the channel. It cited—surprise!—"cost-cutting" as the basis for its decision. OANN never had Newsmax's ratings, but it's not clear why AT&T eliminated it from its lineup while keeping many other low-rated channels.

Newsmax says that when it was up for renewal with AT&T/DirecTV last month, DirecTV's position was, and continues to be, that Newsmax is not eligible for any license fees. Meanwhile, all U.S. cable news channels get fees, and nearly all top cable channels do as well. Newsmax asserts that DirecTV's demand it take zero fees would impact all its other cable broadcaster agreements, essentially demonetizing and censoring the network.

So why doesn't DirecTV cut costs by reducing fees for the many lower-rated networks it carries? Why, again, has DirecTV decided everyone in cable news gets license fees except for Newsmax?

This is not just a "business dispute"; it is a prima facie case of discrimination against Newsmax.

After Elon Musk's release of the "Twitter Files," we know the FBI worked to censor private parties—a serious potential breach of constitutionally protected free speech rights. Did something similar happen when AT&T shut off OANN and Newsmax?

The relatively small amount of money DirecTV saved by removing Newsmax—with the ensuing loss of customers and brand reputation—makes one wonder if a larger hand was at play that forced its deplatforming decision.

House Speaker Kevin McCarthy (R-CA) says Congress will hold hearings on AT&T's targeting of Newsmax and OANN. These hearings must be bipartisan: The rights of all Americans are at stake.

Recently, I signed a letter along with 22 major Jewish leaders calling on AT&T and DirecTV to return Newsmax to its platform. (Disclosure: Newsweek Opinion Editor Josh Hammer was another signee of the same letter.)

This letter was remarkable in its support from major Jewish leaders spanning the political spectrum. At a time of rising antisemitism at home and abroad, Newsmax has consistently offered fair and invaluable coverage on issues of concern to American Jews.

As a liberal, I am truly troubled that a major conservative cable news channel—and one that is reliably pro-Israel, like Newsmax—was silenced by AT&T. If AT&T and DirecTV can get away with silencing Newsmax, who will be next?
​

 

Vivek Ramaswamy censored for online ‘hate speech’ as poll shows surge

https://nypost.com/2023/05/25/vivek-ramaswamy-censored-on-linkedin-as-poll-shows-surge/

excerpt:

The entrepreneur’s account has been blocked for more than a week over three posts deemed offensive by LinkedIn, specifically:

• “The CCP is playing the Biden administration like a Chinese mandolin.”

• “If the climate religion was really about climate change, then they’d be worried about, say, shifting oil production from the U.S. to places like Russia and China.”

• “The climate agenda is a lie: fossil fuels are a requirement for human prosperity.”

On Thursday morning, Ramaswamy tweeted a screenshot of a Tuesday email from LinkedIn that read: “Your account was restricted for repeatedly sharing content that contains misleading or inaccurate information.”
​

more at the link

 

censorship is totally cool when you don't like the person who is being censored

 

https://www.wsj.com/articles/vivek-...egulation-a5c71c4c?mod=hp_opin_pos_5#cxrecs_s

Vivek Ramaswamy’s LinkedIn Lockout
Content ‘moderation’ like this is almost a plea for internet regulation.
By The Editorial Board
May 26, 2023 at 6:41 pm ET

Do the tech giants never learn? Recently the social-media site LinkedIn, a Microsoft property, locked the personal account of Vivek Ramaswamy, a Republican candidate for President. His offense, Mr. Ramaswamy was told via email, was sharing “misleading or inaccurate information.”

LinkedIn cited three posts and videos by Mr. Ramaswamy. In one, he argues that if adherents to “climate religion” really cared about the climate, “they’d be worried about, say, shifting oil production from the U.S. to places like Russia and China.” In another he says “fossil fuels are a requirement for human prosperity.” In a third, he says China played the U.S. like a “mandolin” and “weaponized the ‘woke pandemic.’”


You can disagree with such lines or think they are over the top, but they’re well within the realm of political debate. They’re hardly extreme next to President Biden’s argument that Georgia is imposing “Jim Crow 2.0” on its black citizens, or Democrats’ ubiquitous claim that climate change poses an “existential” threat that has to be solved in the next X years, or else kiss humanity goodbye.

Mr. Ramaswamy’s team asked LinkedIn what exactly is misleading about those snippets. The company replied: “We can’t interpret the LinkedIn User Agreement or Professional Community Policies for you or tell you how it would be applied in any hypothetical situation.” The platform promised, however, to unfreeze his account and “grant another chance” if he replied by “expressly stating that you agree to abide by our Terms going forward.”

LinkedIn backtracked soon enough. “The account was restricted in error and it’s now back up,” a spokesperson said this week. Good luck, though, to similarly banned users who don’t happen to be running for President and aren’t able to command attention. Under the current law and legal interpretation, internet platforms have broad congressional immunity to choose what content to block, with few guard rails.

“These aren’t really the actions of private companies,” Mr. Ramaswamy said after his exile from LinkedIn. He labeled them “so-called privately held companies” and argued they’re “doing the work of the government through the back door.” That charge could use some evidence of government influence, but it is a problem when these giant platforms censor speech for what appears to be their own political reasons.

In a better world, the tech platforms would have an epiphany and decide that within broad boundaries of civility and propriety, pronouncing what is “misleading” or “inaccurate” isn’t within their job description, to say nothing of their competence.

Republicans have been groping for a legislative fix, and an easy one isn’t self-evident. Florida’s social-media law says tech sites can’t deplatform candidates for public office. It is being challenged in court and may not survive First Amendment strict scrutiny.

But if tech sites keep doing things like locking Mr. Ramaswamy’s account, they are begging to be regulated. They might end up getting it, good and hard.
​

​

 

YouTube reverses policy, will allow election denial

https://thehill.com/policy/technology/4032355-youtube-reverses-policy-will-allow-election-denial/

also,

YouTube Abandons Election Misinformation Policy That Censored Political Speech
"We find that while removing this content does curb some misinformation, it could also have the unintended effect of curtailing political speech."

https://reason.com/2023/06/02/youtube-misinformation-policy-election-change-trump/

excerpt:

The company announced the change on Friday.

"The ability to openly debate political ideas, even those that are controversial or based on disproven assumptions, is core to a functioning democratic society—especially in the midst of election season," wrote site administrators in a blog post.

This is a marked departure from the policy in place at YouTube for the last two years. Content moderators vigorously policed claims that former President Donald Trump had actually won the 2020 election. Indeed, their efforts were so aggressive that at one point YouTube actually censored a video released by the January 6 committee—which was attempting to hold Trump accountable for spreading election-related falsehoods—because the video contain footage of Trump saying something untrue.

Under the policy, YouTube was unable to distinguish between videos aimed at spreading misinformation and videos aimed at reporting on the spread of misinformation. These mistakes hurt Rising, the news show I host for The Hill, which is released primarily on YouTube. In March 2022, the platform suspended The Hill for violating the election misinformation policy after two of our videos included footage of the stolen-election claims. . . .
​

more at the link

 

Instagram reinstates Robert F. Kennedy Jr.’s account

https://thehill.com/policy/technology/4034074-instagram-reinstates-robert-f-kennedy-jr-s-account/

excerpt:

“As he is now an active candidate for president of the United States, we have restored access to Robert F. Kennedy, Jr.’s, Instagram account,” a spokesperson for Instagram and Facebook parent company Meta said in a statement to The Post.
​

more at the link

 

https://www.wsj.com/articles/how-th...r-fbi-facebook-af57b191?mod=opinion_lead_pos6

How the Government Justifies Its Social-Media Censorship
The Supreme Court has adopted doctrines that make it hard for officials to see that they’re acting unconstitutionally.
By Philip Hamburger
June 9, 2023 at 6:49 pm ET

The organization I lead, the New Civil Liberties Alliance, represents plaintiffs in Missouri v. Biden, a lawsuit challenging the federal government’s campaign to censor speech on social media. For years, officials at the White House, the Federal Bureau of Investigation, the Department of Homeland Security, the Central Intelligence Agency and other agencies have pressured tech companies to suppress “misinformation.”

Much of the targeted speech doesn’t deserve that Orwellian label. Some of the speech is truthful, and some is simply opinion that dissents from the government’s viewpoint. Yet even actual misinformation—with a few exceptions such as commercial fraud and defamation—is fully protected by the First Amendment. The government makes no claim that the speech it seeks to suppress is unprotected.

So how does it defend its actions? On May 3, the Justice Department filed a 297-page argument that reveals how so many officials could suppress speech with so little fear of violating the Constitution. The root of the problem is judicial negligence.

The Supreme Court has adopted doctrines that inadvertently erode the ability of officials to see that censorship is unconstitutional. Although the doctrines, when carefully considered by sophisticated judges, reveal the unlawfulness of the suppression, they have weakened the constitutional obstacles to censorship by depriving them of their demotic clarity. They even seem to invite game-playing by officials. So FBI agents and other officials imagine that censorship is permissible. And in defending the errant officials, the Justice Department echoes their manipulative reading of weak doctrine.

The danger comes from at least five Supreme Court doctrines:

• An expansive understanding of Congress’s power to regulate commerce. The Constitution vested Congress with the power to regulate commerce among the states, including the channels and instrumentalities of commerce, which increasingly are electronic. But it gave Congress no such power over speech or the press—even when traveling through commercial channels and instrumentalities. As James Wilson put it, “a power similar to that which has been granted for the regulation of commerce” wasn’t “granted to regulate literary publications,” and thus “the proposed system possesses no influence whatever upon the press.”

The Supreme Court, however, has taken the view that the commerce power includes the regulation of communications. Congress therefore feels free to regulate speech, notably in Section 230 of the Communications Decency Act, which privileges interactive computer services.

The court thereby gives the government leverage to extort censorship from dominant social-media platforms. The White House and members of Congress have explicitly threatened to reconsider Section 230’s privileges if social-media platforms don’t escalate their censorship in line with government expectations. Against this background threat, the FBI, Department of Homeland Security and other agencies can get companies to suppress vast amounts of speech.

The judicial evisceration of the limits on congressional power has thus enabled censorship. Under cases such as U.S. v. Lopez (1995), speech regulation surely isn’t a direct regulation of commerce. But the court hasn’t yet spelled that out, so the federal government assumes it can regulate speech, which gives it the power to extort censorship.

• An overemphasis on coercion. The high court sometimes treats coercion as the prototypical foundation of a First Amendment violation. The Justice Department therefore emphasizes that the FBI agents and other officials making specific demands for suppression weren’t the ones issuing the coercive threats, which instead came mostly from the president and lawmakers—as if the division of labor were an excuse. The reality is that the officials making specific demands are exploiting the threats made by other officials. So the censorship is coercive, forbidden under current doctrine.

But it isn’t necessary to show coercion, because rights can be violated without any pressure at all. Imagine that an FBI agent sees a front door ajar and slips in, without touching the door, to search the house without a warrant or reasonable cause. That’s still unconstitutional. Coercion or other pressure can matter to show causation. But those aren’t the only measures.

The text of the First Amendment supports the view that coercion isn’t a necessary element of a violation. Whereas the amendment bars “prohibiting” the free exercise of religion, it forbids so much as “abridging,” or reducing, the freedom of speech. Thus, while little pressure is necessary for prohibiting the free exercise of religion, none at all is required for abridging the freedom of speech. Orchestrating massive content and viewpoint suppression clearly is abridging the freedom of speech—without any need to ask about prohibiting, coercing or pressuring.

The court, however, hasn’t recognized that an abridging of the freedom of speech is different from a prohibiting of it. And it hasn’t abandoned its elevation of coercion. So opportunistic officials think they can defend censorship as long as it falls short of prohibition or coercion.

• Misunderstanding privatized censorship. When government uses private organizations such as Facebook and Twitter to censor speech, it’s widely assumed that the silenced speakers are suppressed merely by private actors, not by government.

The court therefore tends to see no violation of the First Amendment unless government presses, encourages or integrates with the private organizations. As the court explained in Blum v. Yaretsky (1982), “our precedents indicate that a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” On this view, officials don’t violate the First Amendment unless there’s a cascade of government action—from government to private companies down to private individuals.

But that standard is too high. Although it sometimes can be satisfied after the fact in court, as we believe it can in this case, it encourages officials to think they can get away with privatized censorship.

The requirement that the private partners must become government actors isn’t supported by a careful reading of Blum, let alone the Constitution. Blum and the later Supreme Court cases that rested on it were suits against private organizations seeking to hold them liable as government actors. For that, it made sense to ask if there had been a conversion of the organizations from private to public. But it doesn’t follow that such a transformation is necessary to sustain a suit directly against government. Because the First Amendment bars “abridging” the freedom of speech, any law or government policy that reduces that freedom on the platforms—for example, by obtaining content or viewpoint discrimination—violates the First Amendment.

In such a case, government is abridging the platforms’ speech to the extent they are custodians of the speech of those who post on the platforms. More clearly, it’s abridging the speech of the many who post (and all who read) on the platforms. Either way, the constitutional question is whether government policy is abridging the freedom of speech—meaning it has caused a reduction in the freedom—not whether the private platform has been converted into a government actor.

If FBI agents politely ask a private construction firm to bulldoze your house, and the firm patriotically cooperates, the FBI will have acted unconstitutionally—even though the private firm is merely private and acted consensually. Similarly, when FBI agents or other officials persistently seek the consensual cooperation of social-media platforms in suppressing disfavored speech, the FBI agents are abridging the freedom of speech.

So while it’s true that government threats have turned the platforms into government instruments, that’s icing on the cake. The Constitution’s measure is, more modestly, whether FBI agents and other officials have abridged the freedom of speech.

Supreme Court doctrine, however, dangerously encourages government to think it can use private firms to circumvent the First Amendment—as long as it doesn’t turn them into government actors. This is especially worrisome because it seems paradoxical and hazardous to say that private companies can be considered government actors. Many judges are reluctant to reach so perverse a conclusion, thus giving even greater leeway for privatized government censorship.
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more

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conclusion:

• The “government speech” doctrine. In the course of defending government speech from claims of viewpoint discrimination, the court has suggested that government enjoys speech rights. Seizing on this, the Justice Department defends officials seeking censorship on the theory that when they request suppression, they are merely engaging in protected government speech.

But the First Amendment is a limit on government. It doesn’t give government a freedom of speech to abridge the freedom of speech of others.

• Qualified immunity. In the past, most officials hesitated to violate constitutional rights, lest they be sued for damages. Now, under the court-invented doctrine of qualified immunity, officials are protected from damage suits whenever there is any legal ambiguity that might have given them reason to think their conduct was lawful. With this doctrinal security, officials from the White House, the FBI and DHS are emboldened to violate the First Amendment.

These doctrines in combination empower Congress to regulate speech and the executive to extort censorship; they allow questions of coercion to distract from the Constitution’s “abridging” standard; they permit officials to think they can privatize censorship as long as the private entities aren’t turned into government actors; they let officials believe they have a free-speech right to seek censorship; and they categorically give officials qualified immunity.

No wonder we have censorship. It has no real justification in the Constitution or even judicial doctrine. But judicial doctrine makes censorship plausible by leaving room for officials to think they can get away with crude and facile evasions. That’s why no one in government seems very worried about violating the Constitution. They think the court has given them a free hand to suppress speech.

Justice is slow, and the censoring officials sedulously kept their role secret. They thereby delayed a judicial reckoning for six years and two elections, and they surely hope for further delay—until the next elections and even a change in the composition of the Supreme Court. If the censorship persists much longer, it will permanently undermine free speech and transform society.

Doctrine that allows officials to impose censorship for years, until finally held to account in court, isn’t good enough. What’s needed is the constitutional clarity and accountability that stops officials from ever again beginning such a project.

Mr. Hamburger teaches at Columbia Law School and is CEO of the New Civil Liberties Alliance, which represents the individual plaintiffs in Missouri v. Biden.
​

 

YouTube removes RFK Jr. video for vaccine misinformation

https://thehill.com/homenews/media/4057444-youtube-removes-rfk-jr-video-for-vaccine-misinformation/

 

commentary from Turley
YouTube Censors Robert F. Kennedy Jr.

https://jonathanturley.org/2023/06/20/youtube-censors-robert-f-kennedy-jr/