October 23, 2022

The Ruckus Over Censorship in America: It’s Really About Trust

by Hal Gershowitz

Comments Below

First, let’s see if we can agree on what illegal censorship is in America. Very simply, it is constitutionally unlawful for government, or an instrument of government, to establish or enforce a prior restraint on speech (written or spoken) with certain very narrow exceptions for national security and harmful activity such as the creation and distribution of child pornography. By and large, that’s it.

So, when the political class, either on the left or right, hyperventilates that private media platforms are censoring their writings or utterings, especially social media platforms, they are, by and large, making a political comlaint and not a legal complaint.

A case in point would be Senator Chuck Grassley’s (R-IA) very public disclosure this week (three weeks before the mid-term elections) of his letters to the FBI and the Justice Department, complaining about the apparent lack of progress in the investigation of Hunter and James Biden’s alleged dealings with individuals connected to the Chinese communist government. The letter also referenced Hunter Biden’s role in Burisma, the Ukrainian energy company. Senator Grassley demands that the FBI essentially turn over its findings regarding its long, ongoing investigation by Thursday of this week, barely a week before the midterms. While his letter has been widely covered by right-wing social media and the Iowa press, it has, as of this writing, received relatively little attention elsewhere. To be sure, the allegations against Hunter and James Biden (and, by inference, President Biden) are quite damning, but the timing of Grassley’s letter smacks of partisan purpose. Reticence to cover Grassley’s salvo at this point in time represents editorial judgment, not censorship.

Now, to be sure, we are living in a challenging age with extraordinary means and instruments of communication that were not contemplated when our founders labored to ensure that no American government would restrict what fellow Americans had to say or write. Nonetheless, for most of our early history, newspapers and pamphlets, which were the only real means of mass communication, were often highly partisan and routinely excluded political opinions inconsistent with their publishers’ particular political points of view.

No one cried censorship because it simply wasn’t censorship, at least not in the sense that censorship was, and is, proscribed by our constitution. We did have one rather outrageous flirtation with censorship during the administration of a very thin-skinned John Adams, but that flirtation ceased at the end of the Adams Administration and the termination of the Alien and Sedition Act in 1801.

Many media outlets throughout history have had a long track record of discriminating about what political “news” they would or would not publish or promote.

But that was then, and this is now. Today, we have social media, something akin to electronic public bulletin boards to which pretty much everyone has access…or do they?…or should they? Which is worse: to say you can’t publish something or to say you must publish something? It probably depends on whose ox is being gored.

Enter Section 230 of the United States Communications Decency Act. This provision, which is nestled securely in a section of Title 47 of the United States Code, essentially provides immunity from liability for both users of and content providers to social media platforms and, of course, the platforms as well.

So, one argument goes, if you, as the owner of a social media platform, bear no responsibility for what someone posts, what right do you have to restrict or eliminate any content you do not like or of which you disapprove? “Well,” a social-media platform provider might respond, “I have as much right to use editorial discretion and judgment as any other purveyor of news or information.”

And that is, today, a raging political issue, and it is an issue that is resonating across the political spectrum. For example, a recent Pew Research Center survey found that nearly 75% of adults in America believe that social media sites are either very (37%) or somewhat (36%) discriminatory, that is, that they intentionally censor political positions that they find objectionable. Only a quarter of American adults doubt that such censorship exists.

Among Republicans, or those who lean Republican, fully 90% believe it is somewhat likely that social media sites censor political messaging they do not like. Not surprisingly, about 70% of Republicans, or those who lean Republican, believe these social media platforms generally favor liberal points of view over conservative points of view.

The data also suggest a substantial trust deficit in America. For example, it has been suggested that social media platforms could have fact checkers flag those political postings by elected officials that are demonstrably either misleading or inaccurate. Only about half of all adults would be somewhat comfortable with such an arrangement. About 70% of Republicans would disapprove of such a fact-checking feature, and nearly a quarter of Democrats would disapprove. Overall, it seems clear there is insufficient trust that social media could accurately flag inaccurate or misleading political statements.

These data shouldn’t surprise anyone. A casualty or, perhaps, a symptom of our current political environment has been an extraordinary diminution of trust in our leaders, our institutions, and those uniquely American traits that once identified America as the world’s indispensable nation. While the American temperament was never kumbaya, far from it, we seemed to know when we had to pull together. Perhaps it was always fiction, but we once seemed to be guided by an inner gyroscope that, for a couple of centuries, made America the best hope of humankind.

We were the exceptional nation. We were exceptional because there was simply no place like America. Every American generation, pretty much, did much better than the prior generation. Every political season was raucous, but when the political banter, electioneering, and voting were done, we dusted ourselves off and got on with making America work.

The political give-and-take was spirited but rarely hateful. Political hyperbole was always par for the course, but calculated, destructive and blatant lying was never acceptable. At the proverbial end of the day or of the political season, no one seriously contemplated pulling down the entire fabric of American political life.

Maybe that’s simply because the tools and machinery to undertake such a misplaced and self-destructive task weren’t previously available, at least not sufficient to undo the great American experiment. America, warts, and all, was still the best example of what a constitutional democracy could aspire to be. Except for a few Lindberghs along the way, Americans didn’t fawn over the world’s autocracies as some high-profile Americans do today.

We had always known that our democracy was fragile, requiring politicians and statesmen who would, when push came to shove, stand together in deference to the generations of Americans who were committed to preserving the constitutional democracy the founders had created.

Benjamin Franklin defined the great American challenge. We had a Republic if we could keep it.

For nearly two and a half centuries, we trusted that we could. 

It has always been a matter of trust, determination, and the hard work of democracy.

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