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New ‘Church Committee’ could censor in its crusade against censorship

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  1. First Amendment
RCFP's Gabe Rottman argues that a House subcommittee should drop subpoenas it issued to large tech platforms last week.
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Last week, the House Judiciary Committee and its “Select Subcommittee on the Weaponization of the Federal Government” issued subpoenas for information about large technology platforms’ interactions with the executive branch.

According to the Wall Street Journal, U.S. Rep. Jim Jordan (R-Ohio), the newly ascended chair of the House Judiciary Committee and the select subcommittee, said the purpose of the subpoenas is to understand “how and to what extent the Executive Branch coerced and colluded with companies and other intermediaries to censor speech.” The recipients of the subpoenas are top executives at the “big five”: Alphabet, Amazon, Apple, Meta, and Microsoft. Twitter was not subpoenaed.

The stated purpose of the subpoenas is to investigate an absolutely valid concern — the phenomenon of “jawboning,” where government officials effectively say, “if you don’t clean up your act, we will.” That dynamic has played out repeatedly in the history of “voluntary” speech restrictions in response to moral panics, from movies to comics to parental advisories on music and video game ratings. And, if government officials were threatening the platforms with formal action absent voluntary compliance, that would be a bona fide scandal.

But several aspects of the subpoenas raise concerns that Jordan’s quest to uncover “censorship” could itself be censorial, in terms of intruding into the platforms’ First Amendment-protected moderation decisions (which is unfortunate given that he has, in the past, sponsored speech-protective legislation like a federal reporter’s shield law).

First and foremost, to focus the investigation on the companies is backward. In a press release announcing the subpoenas, the Committee writes, “Congress has an important role in protecting and advancing fundamental free speech principles …” No argument there! But the sentence continues, stating, “including by examining how private actors coordinate with the government to to [sic] suppress First Amendment-protected speech.”

Well, no, that’s not a “free speech principle.” “Coordination” in terms of removing, say, medical hoaxes or terrorist organizing from the large platforms is not jawboning if it’s truly voluntary. News organizations do this all the time. For instance, national security reporters will routinely “coordinate” with the government to limit disclosures that could actually harm national security.

Further, there is nothing in the public record to suggest any coercion in contacts between government officials and the platforms, including in the “Twitter Files.” Were there, we would be screaming bloody murder. And if the subcommittee is truly concerned about a covert state-led influence campaign vis-a-vis content moderation, there’s a much more fertile and less constitutionally sensitive focus for its investigation: the executive branch itself.

Second, while the large platforms have lost the luster of the techno-utopianism of yore, the kinds of concerns leading to these intrusive inquiries into internal content moderation decisions — a perceived failure to moderate “bad” speech on the left, and perceptions of ideological bias on the right — very much resemble those lobbed at the “big three” broadcasters in the analog era of telecommunications. They were too big. They had too much power over public discourse. They were so imbued with a public interest obligation that government actors were not only allowed to police perceived “bias” in news reporting, they were obligated to do so.

The most consequential of these broadcast-era confrontations was the congressional subpoena demanding outtakes from the documentary “The Selling of the Pentagon,” where CBS President Frank Stanton refused to turn them over and faced a very real threat of contempt until the full House came to its senses and voted to drop the matter.

The lesson from the “Selling of the Pentagon” controversy is that government officials, of all political stripes, are often tempted to, as my colleague Grayson Clary always says, “work the refs” when it comes to speech by private actors. When one perceives the winds of public opinion shifting against you, it’s just easier to pressure the platform for that speech than to engage in actual debate.

Some in the new Republican House majority have compared the select subcommittee to the Senate’s Church Committee in the 1970s that investigated intelligence abuses and led to landmark civil liberties protections against illegal government spying on journalists and others.  If the subcommittee really wants to emulate that example, it should drop these subpoenas.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology Press Freedom Project Fellow Emily Hockett.

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