Few expect the House GOP’s select subcommittee on the weaponization of the federal government, approved Tuesday and headed by Rep. Jim Jordan (R-Ohio), to be a model of sober deliberation and evenhandedness. That doesn’t mean the committee can’t address real problems. Its purview will apparently include the collaboration between executive-branch agencies and internet giants in controlling speech online. Left unchecked, such collaboration is a long-run threat to self-government, one for which existing law and custom offer no clear defense.
In the past year, reporting in the Intercept, lawsuits by Republican state attorneys general, Elon Musk’s Twitter files and the government’s own announcements have made clear that Washington bureaucracies now consider the removal of what they see as online misinformation as a top priority. The Department of Homeland Security, the Federal Bureau of Investigation, the White House and other federal agencies and contractors appear to be increasingly enmeshed in the moderation processes of the major social media firms where most Americans receive political news and opinion.
The First Amendment, of course, is widely understood as a bulwark against government control of speech. But in a December article for Harvard Law School’s National Security Journal, “Symbiotic Security and Free Speech,” scholar Michael J. Glennon proposes that in our current period of technological transition, free-speech doctrines might paradoxically be having the opposite effect. The government has a First Amendment right to speak, including to browbeat social media corporations, which themselves have a First Amendment right to decide what content goes on their platforms.
“Within that constitutional shelter,” Glennon argues, “the government’s security apparatus and private actors can, and often do, join symbiotically to shut down the marketplace of ideas.” He describes a First Amendment no man’s land “in which government recommendations shade into directives, in which voluntary private conduct melts into coerced compliance, and in which benefits are continually exchanged between a public and private sector that have become indistinguishable.”
Technology executives, after all, take government requests seriously, especially from the White House or arms of the national-security state. President Biden is pushing for legislation to expand the platforms’ legal liability, and the Federal Trade Commission is scrutinizing them for possible anticompetitive behavior. FBI solicitations may not be overtly coercive, but it’s in the firms’ interest to comply.
The government-Big Tech content-moderation consortium, Glennon emphasizes, “is not the product of a conspiracy.” Instead, “it has emerged organically in response to incentives baked into the U.S. political and financial order.” The federal government’s regulatory power, plus the firms’ size and influence, plus political and social polarization combine to create pressure for a state-backed control of online speech. But precisely because there is no conspiracy, the dynamic resists “classification within traditional categories” of law, meaning that courts are reluctant to intervene.
There are circumstances where government collaboration with Silicon Valley is legitimate — to notify the firms of crimes committed using their platforms, for example. Misinformation is a much broader and more malleable category. The government can make sure the public has access to the best information available. But when the executive starts leveraging its powers in new ways to suppress competing sources? That should at least catch the attention of citizens in a liberal society.
Glennon is not the only scholar to take this emerging problem of internet governance seriously, but liberal Washington has generally treated conservative concerns with a mix of contempt and dismissal. It’s possible to imagine a very different debate in, say, 2025, where a DHS reporting to a President Ron DeSantis declares that certain claims of voter suppression constitute civic misinformation, while the Department of Health and Human Services declares that certain transgender and coronavirus vaccine advocacy is health misinformation.
Perhaps that is not a concern for Democrats who believe that no matter which party is in power, government and social media bureaucracies will continue to have access to a depoliticized conception of truth and falsity. But Americans are closely divided on fundamental values, and consensus is apt to evolve as political currents change and new information comes to light.
Anyone watching DeSantis’s projects as governor — pressuring Disney on social issues, legislating against the tech platforms, overhauling a state college — can see that he (and the conservative intellectual vanguard in general) is intensely interested in reshaping institutions to advance conservative goals. Donald Trump might have lacked the capacity to do this, but his GOP successors may well be more resourceful.
The machinery of consolidated political influence over the internet doesn’t just threaten one party or ideological faction. Carefully tailored legislation could limit federal agency coordination with internet firms on the removal of protected speech. That would help address a vulnerability in the constitutional system.
Without guardrails, the web-censorship arms race is likely to lead to escalation. Control of government will increasingly be used to intervene in democratic debate under the guise of expert knowledge. The House “weaponization” committee might preoccupy itself with the pursuit of conspiracies, but it also has a chance to start hashing out what a treaty might look like.