During the summer, the US Supreme Court issued multiple rulings that have generated a storm of hostility among progressives; for example, there were decisions relating to political corruption, government regulation of corporations and immunity for Donald Trump for crimes committed while president. The court also issued two decisions relating to online speech which have flown under the radar.  

In the first case, that of Murthy v. Missouri,  the court, on June 26th,decided in a 6-3 ruling against multiple conservative plaintiffs who claimed that their First Amendment rights were violated when their posts were censored on social media platforms–which they alleged occurred after the platforms were pressured by the Biden administration to crack down on disinformation about the 2020 election and Covid vaccines. Writing for the majority, Justice Amy Coney Barrett (joined in the majority by Brett Kavanaugh, another Trump appointee) ruled that the plaintiffs could not prove an explicit connection between the social media platforms’ censoring of their posts and Biden administration communication with the platforms objecting to disinformation on their sites. The ruling effectively freed the Biden administration from an injunction granted by Trump appointed federal judge Terry A. Doughty in July 2023 strictly limiting the federal government from contacting social media companies about disinformation. 

The second decision involved two separate cases decided together: NetChoice, LLC v. Paxton and Moody v NetChoice, LLC. The lead plaintiff in both cases was NetChoice, a trade association of online platforms, objecting to legislation signed into law by Republican governors in Florida and Texas in 2021 which was designed to limit the ability of social media platforms to moderate content on their sites. On the surface it might seem that these laws are clearly unconstitutional: they violate the right of the capitalists who own online platforms to implement whatever content moderation policies on their sites that they desire. However the court’s analysis was more complicated; in the end by a 9-0 majority, it declined judgment and remanded the cases to lower courts and asked that the latter reformulate their original rulings to include more substantial analysis of the constitutional issues involved. With the cases remanded back to the lower courts, injunctions against the laws issued by the lower courts remain in effect. The state laws involved in the NetChoice cases were passed by Republican Florida and Texas legislators who argued that the mass deplatforming of persons by social media companies after the January 6th riots was a grave injustice, indicative of extreme anti-conservative bias. They argued that social media platforms should be regulated as common carriers–that they should be legally obligated to display all First Amendment protected content from every perspective on their platforms. 

The Murthy and NetChoice cases brought out some interesting opinions from Justice Samuel Alito, leader of the US Supreme Court’s hard right faction. In the NetChoice decision, he joined with his colleagues in voting to remand the cases back to the lower courts. However, he–along with his conservative colleague Clarence Thomas–indicated that he accepted the argument of the Republican state attorney generals on the need to regulate social media platforms as common carriers. Meanwhile, in his dissent in the Murthy case, Alito vigorously argued that–contrary to the majority’s finding–strong evidence existed that federal government pressure played a role in causing social media platforms to censor the content of the conservative plaintiffs. He also made a reasonable argument  about the structural problems in federal government relations with online platforms. He observed that the federal government has enormous leverage over the platforms in multiple ways. One is that the platforms rely on the US government to advocate on their behalf with European Union regulators. Another is that Section 230 of the 1996 Communications Decency Act shields online platforms from liability from any harm caused by content posted by their users. Politicians and other US government officials can potentially use the threat of withdrawing these protections to compel the platforms to do what they want. 

The Censorship Industrial Complex

The laws and lawsuits that formed the crucible for the Murthy and NetChoice cases were part of a broader right wing attack against what has been called a “censorship industrial complex.” The latter revolves around claims that federal government officials, Big Tech companies and anti-disinformation academic researchers have covertly conspired to suppress MAGA friendly speech on online platforms–under cover of fighting disinformation about the 2020 election and the Covid pandemic. This supposed conspiracy has spurred Republican congressman Jim Jordan, chair of the powerful US House Judiciary Committee, to launch major congressional investigations, and for academic anti-disinformation researchers to be targeted in lawsuits brought by America First Legal, a group founded by Trump advisor Stephen Miller. It also inspired the pro-Trump billionaire Elon Musk to launch a publicity campaign called the Twitter Files shortly after purchasing Twitter (now X) in late 2022. The Files were an effort by Musk to market his Twitter ownership to conservatives: he ordered the release of tens of thousands of internal company documents to his own hand picked journalists in an effort to prove that Twitter’s pre-Musk ownership was involved in the censorship industrial complex. 

Aside from exceptions like Justice Alito’s relatively well reasoned Murthy dissent, in many ways the right wing propaganda campaign against the censorship industrial complex has operated at a low intellectual level. Much of the so-called evidence for the campaign has originated with Mike Benz, a former minor Trump administration official notable for spreading white nationalist propaganda on online platforms under the pseudonym of Frame Game in 2017 and 2018. Benz, known as a far right conspiracy theorist, played a major role in launching the claim popular in right wing media earlier this year that the Pentagon secretly used Taylor Swift to spread establishment propaganda. He has been a major influence on Jim Jordan’s congressional investigation into the censorship industrial complex.

Benz has grossly misrepresented evidence. For example he has asserted that a consortium of academic research institutions connected to the Department of Homeland Security called the Electoral Integrity Project worked with Twitter during the run-up to the 2020 US presidential election to remove 22 million tweets claiming that Trump was the victim of election fraud. The actual number was not 22 million but 2890: the latter figure was not the number of tweets Twitter removed but those which the EIP flagged for Twitter officials to examine for possible violations of the site’s terms of service. Twitter took no action on a large majority of those 2890 tweets. Matt Taibbi, the historically progressive but increasingly MAGA friendly investigative journalist who was one of the journalists picked by Elon Musk to publicize the Twitter Files, echoed Benz’s claim of 22 million censored tweets. When challenged on the claim, Taibbi idiotically cited Benz as an authoritative source for the 22 million figure. 

The Conservative Case

Few if any of the pushers of the narrative of a censorship industrial complex are seriously committed to free speech principles. The campaign against this supposed speech suppression conspiracy is the  latest iteration in the decades long “working the refs” campaign of powerful right wing forces seeking to intimidate mass media platforms into giving greater prominence to right wing views by noisily complaining about supposed anti-conservative media bias. In the current era, far right elements aligned with the MAGA movement are the chief purveyors of viral disinformation that incites stochastic terrorism–from threats and harassment against Haitian refugees, election workers and LGBTQ friendly school librarians to the riots of January 6th. The MAGA right screams about speech suppression conspiracies in order to intimidate the forces–government officials, Big Tech content moderators and anti-disinformation academic researchers–that that are in the strongest position to effectively counter its ability to use its enormous financial and political resources to amplify disinformation that causes serious public disorder. 

The laws passed by Republicans in Florida and Texas that are at the center of the NetChoice cases show an effort–in the interests of furthering the MAGA far right’s social, economic and political agenda.– to restrict social media platforms’ ability to regulate  viral disinformation. The courts will probably eventually completely nix these laws because they undermine the viability of the platforms’ corporate ownership. A major source of the platforms’ revenue is advertising–as public awareness and criticism from politicians have grown about platforms’ nurturing of extremism, businesses increasingly object to having their ads placed next to posts by neo-nazis, 2020 election deniers, QANON or incel adherents. It is in the interests of the platforms to exercise a measurable level of content moderation on their sites in the interests of placating advertisers. 

Elon Musk found out about this dynamic after he purchased Twitter for $44 billion in late 2022. He proclaimed the platform a free speech zone with little to content moderation; he ordered the reinstatement of countless accounts the site had previously banned for promoting neo-nazism and other far right extremism. By November 2023, advertising on Twitter had declined by nearly 60 percent. Last month, X(Twitter) was estimated to have declined by 79% in value under Musk’s ownership.

In response to this dynamic of market forces working against him, Musk has indulged in tantrums, publicly telling the advertisers in November 2023 to “go fuck yourself.” Also, earlier this year, Musk launched lawsuits against multiple corporate advertising groups, accusing them of coordinating an “illegal” boycott of X. The lawsuits were spurred after the US House Judiciary Committee, chaired by Musk’s chief political lapdog Jim Jordan, held hearings which supposedly demonstrated collusion by corporate advertisers to boycott X and multiple conservative media outlets.. Also Musk has launched lawsuits against the liberal think tanks Media Matters and the Center for Countering Digital Hate, accusing them spreading falsehoods about X’s tolerance of hate speech that allegedly spurred the advertiser boycotts. 

The Democratic Response

An interesting dynamic emerges while observing the mainstream political debate over the supposed existence of a censorship industrial complex. Forces on the MAGA right–in the interests of their own cynical political calculations–have been actively intervening in the private sector economy when it comes to social media platforms. In Florida and Texas, they  have tried to restrict the platforms’ ability to moderate user content; in the case of Jim Jordan, he used his enormous leverage as chair of a powerful congressional committee to try to intimidate corporate advertisers who have boycotted Elon Musk’s X. 

In addition, Republicans have also tried to block government funding for anti-disinformation academic researchers who have advised social media platforms about fighting disinformation. In the lawsuit that ended with the Supreme Court’s Murthy decision, they also tried to restrict the federal government’s communication with social media platforms about disinformation on their sites.

Meanwhile, in contrast to the relative Republican dynamism on the issue, Democrats have seemed unambitious. The boldest and most coherent idea many congressional Democrats have about reforming US social media is to eliminate the protections of Section 230 of the 1996 Communications Decency Act. By eliminating these protections and thereby making social media platforms liable for any harm caused by user content on their sites, they hope to induce the platforms to make even greater efforts to crack down on disinformation. Another proposal congressional Democrats have put forth is a flawed Kids Online Safety Act to regulate content viewable by minors on online platforms. Overall, in contrast to the aggressive right wing attempts to reshape social media, Democrats seem to have little urgency to try to implement any of the paltry and uninspiring ideas they have about reforming social media.

Democrats have tried–sometimes successfully–to poke holes in the right wing claims about censorship conspiracies. But in my view they have erred in insisting that there is absolutely zero merit to any of the claims–I, in contrast, think there is at least a small measure of merit to the claims as I will explain below.. Republican claims of the existence of a censorship industrial complex are rooted in part in an attack on government surveillance and other aspects of the national security state to which Democrats are fully committed–this is one of the reasons Democrats have been unable to examine the issue fairly. 

Right Wing Exposure of Government Surveillance

As much as MAGA Republicans have spread nonsense about censorship conspiracies, they are on strong ground in at least one major way. As Justice Alito accurately stated in his Murthy dissent, the federal government has enormous leverage over social media platforms, which have become the leading source of information for tens of millions of people in the United States. Even the prominent liberal tech blogger, Mike Masnick–a critic of right wing hysteria about the censorship industrial complex—has conceded that at least a few pieces of  evidence buttress right wing claims that the federal government has a problematic relationship with social media platforms.  For example Masnick pointed out evidence which emerged in one of the recent right wing free speech lawsuits that Rob Flaherty, the Biden administration’s White House Director of Digital Strategy, improperly used his powerful governmental position to demand that social media companies “explain” certain content moderation decisions. Flaherty also privately berated Facebook for an algorithmic bug that briefly prevented the Biden administration’s Facebook page from appearing in the list of the site’s recommended pages. 

The Twitter Files–and the congressional hearings held on them by Jim Jordan through his chairmanship of the House Select Subcommittee on the Weaponization of the Federal Government–established that FBI agents and other government officials were privately requesting that Twitter and other social media platforms take down certain posts by users in a manner that was neither transparent nor subject to democratic oversight. Jordan and the journalists Elon Musk picked to publicize the Twitter Files greatly exaggerated the number of these requests and their impact on online speech–Twitter rejected most of the FBI agents’ requests. Nonetheless, the Twitter Files did expose a system of government surveillance of social media that is concerning. While the Twitter Files showed FBI agents, with not total unreasonableness, requesting that Twitter remove posts spreading disinformation about topics like vote-by-mail procedures, one can also envision those same agents using the same surveillance system to target social media posts by users aligned with radical left anti-war or other dissident forces. In fact, we know–in part, thanks to the reporting of Ken Klippenstein–that the Biden administration has been pressuring social media platforms to curb pro-Palestinian speech in the name of fighting terrorism. Of course, with rare exceptions, neither Democrats nor their MAGA enemies are supportive of free speech protections and other enlightenment based principles when it comes to persons opposed to the Gaza genocide; often they are explicitly supportive of clamping down on them. 

Democratic Weakness

It is easy to think of a number of progressive reforms that can be proposed for America’s social media companies that can go some distance in addressing right wing concerns about government surveillance and progressive concerns about viral disinformation. One way might be to break up social media platforms like Twitter, Instagram and Facebook  and force them to operate on the decentralized, open source model of Mastadon, the non-profit social media platform. Another idea promoted by left media scholars like Ben Tarnoff and Victor Pickard is to take social media platforms–and mass media generally–completely out of corporate hands, making them publicly owned and democratically operated through local libraries. 

However it is extremely unlikely that Democrats will ever push for greater democratic control of social media platforms or any other industry in the United States–short of mass, overwhelming public pressure to do so.. As the leftmost political party in mainstream America, Democrats are always vulnerable to being smeared as socialists or otherwise “moving too far to the left” in their policy. They are in a constant battle to show American businesses that they will interfere as little as possible in corporate America’s capital accumulation. In contrast, no one would accuse MAGA Republicans of being socialists; they have more space than Democrats to use Big Tech as a political punching bag, using their political power to try to interfere in the content moderation policies of privately owned social media companies to try to force them to be more MAGA friendly. 

The Future

As MAGA Republicans wail about censorship conspiracies, control over the distribution and amplification of information and opinion in this country has remained as it always has: in the hands of the ultra-wealthy. One of this dynamic’s latest illustrations is Elon Musk’s decision last month to permanently ban Ken Klippenstein from X because the investigative journalist published on Substack an unredacted hacked Trump campaign dossier on J.D. Vance compiled before the latter was selected as Trump’s running mate. Musk has clearly been irritated with Klippenstein’s past critical reporting about himself: in January,  Musk briefly suspended the X accounts of Klippenstein and a handful of other journalists who had displeased him. 

In general, today we are faced with a situation where Elon Musk–along with the likes of Mike Benz, Jim Jordan and Samuel Alito–are in the driver’s seat in mainstream American politics in terms of pushing for changes to social media platforms.  Democrats, in contrast, have had relatively little to say on the subject. That is a bad omen (among many) for the future of American democracy. 

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