It is time to get the United States out of the censorship business for good.
In the last three years, the House of Representatives has disclosed a massive censorship system run in part with federal funding and with coordination with federal officials. A federal court described this system as truly “Orwellian.”
The Biden Administration has made speech regulation a priority in targeting disinformation, misinformation or malinformation. President Joe Biden even said that companies refusing to censor citizens were “killing people.”
His administration has now created an anti-free speech record that is only rivaled by the Adams Administration, which used the Alien and Sedition Acts to arrest political opponents.
Jen Easterly, who heads the Cybersecurity and Infrastructure Security Agency, is an example of how speech controls and censorship have become mainstream. Her agency was created to work on our critical infrastructure, but Easterly declared that the mandate would now include policing “our cognitive infrastructure.” That includes combating “malinformation,” or information “based on fact, but used out of context to mislead, harm, or manipulate.”
I have testified for years about the censorship system. For much of that time, Democrats insisted that there was no proof of any coordination or funding from the government. Such evidence did indeed exist, but Democrats worked to block any investigation to confirm what we already knew about government officials targeting individuals and groups for throttling, bans, and blacklisting.
Then Elon Musk bought Twitter. The release of the Twitter Files destroyed any plausible deniability of the government’s role in this censorship system. Various agencies had employees working with social media companies to target those with opposing or disfavored views. At the same time, we learned of grants from the federal government supporting blacklisting and targeting operations.
That includes efforts to quietly choke off revenue from disfavored sites by pressured advertisers and donors.
While companies like Facebook have continued to fight to conceal their coordination with the government, the Twitter Files pulled back the curtain to expose the system. Indeed, Democrats largely abandoned their denials and turned to full-throated defenses of censorship, even calling free speech advocates “Putin-lovers” and “insurrectionist sympathizers.”
In 1800, Thomas Jefferson defeated John Adams in the only election where free speech was a primary issue for voters. It should be again. Vice President Kamala Harris is known as a supporter for these censorship and blacklisting operations. She can now defend that record and convince Americans that they need to have less free speech.
This debate should ideally focus on one simple legislative proposal. In my new book, I suggest various measures that can regain the ground that we have lost on free speech. One such measure is a federal law that would ban any federal funding of any offices or programs (government, academic, or corporate) that rate, target, censor, throttle, or seek to take adverse action against individuals or groups based on their viewpoints in public forums or social media.
There can be easy exceptions to this ban for individuals or groups engaging criminal conduct or unlawful foreign interference with elections. Threatening individuals or trafficking in child pornography constitute conduct, not speech. They are criminal acts under the federal code.
Nothing in this law would prevent the government from speaking in its own voice. If Secretary of Homeland Security Alejandro Mayorkas wants to challenge claims made about him or his agency, he can do so on the agency website or make his case to the media. That is the essence of free speech. What he cannot do is create a Disinformation Governance Board to regulate the speech of citizens or groups.
In my prior testimony to Congress, I warned about the use of what I called “censorship by surrogate” through which agencies did indirectly what they are barred from doing directly under the First Amendment.
This new law will not put an end to the burgeoning anti-free speech movement. It will not end the new market for groups making millions in seeking to silence or strangle sites with opposing views. However, it will create a wall of separation of the government from censorship systems.
It would also offer a simple and clear line for the 2024 election. Candidates will have to take sides on free speech. If candidates like Harris want to continue to support the government in blacklisting or censoring citizens, they should own it. We spent years of politicians engaging in cynical denials of the government’s role in censorship. If these politicians are “all in” with censorship, then they should be honest about it and let voters make the same choice that was made in 1800.
With billions to play with and enabling allies in Congress to conceal federal operations, speech regulation is an irresistible temptation for the government. We have seen how this temptation quickly becomes an insatiable appetite for government officials seeking to silence rather than answer critics.
Let’s get our government out of the business of rating, throttling blacklisting, and censoring citizens. It is time to pass a free speech protection act.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage” (Simon & Schuster).
This op-ed is part of The Hill’s “How to Fix America” series exploring solutions to some of the country’s most pressing problems.