How Free Speech Dies: Follow the Government Intervention—Beyond Section 230

In a previous post I quoted George Orwell on the non-governmental silencing of dissent during World War II England:

Hardly anyone will print an attack on Stalin, but it is quite safe to attack Churchill. . . . Anyone who challenges the prevailing orthodoxy finds himself silenced with surprising effectiveness.

Wall Street Journal writer Mary Anastasia O’Grady, in a column titled “How Free Speech Dies,” offers more detail on this prelude to government censorship.

Writing about today’s “hyper-intolerance,” and providing examples from Latin America, O’Grady points out the role of “public intellectuals”—upper classes, academics, and media—“intelligentsia” for short, in suppressing disagreement and paving the way for an incoming dictator. O’Grady writes:

Fidel Castro didn’t become dictator for life in Cuba without help from island artists, writers and reporters, many of whom were later jailed or exiled. . . . In his first months in power [Castro] continued to pay lip service to democracy and knew better than to march into newsrooms with bayonets and jackboots. At his disposal were useful journalists ready to do his dirty work by attacking their own colleagues.

“Useful idiots” would be other words to describe the intelligentsia. It’s the “jailed or exiled” (or shot) part that today does not seem to be talked about or acknowledged, as that is often what happens to aiders and abettors of dictatorship. (Remember what happened to the capitalists who sold Lenin rope? Which Lenin then used to hang them??)

O’Grady quotes a 1985 book that says Cuban journalists agreed to write “clarifications or footnotes [and] criticisms of editorials or news items that were not in accord with the official government line.” Ah! Sound familiar to today’s social media? Substitute “party” for “government,” O’Grady says, and you describe what we have now.

But is this cancelling and silencing really non-governmental? Do the self-appointed critics enjoy a government intervention and therefore a privilege that others do not?

This is why I say, “follow the government intervention” (not the money) to find harm to consumers and competitors, though the intervention can be a challenge to find.

Let’s look beyond or behind Section 230 of the 1996 Communications Decency Act. The act itself is an intervention that allows social media to provide platforms for political discourse but also be exempt from liability for their posters’ defamation. Publishers are not so exempt from the frauds of their authors.*

More interventions: The Communications Decency Act is part of the Telecommunications Act of 1996, which itself is a revised version of the Communications Act of 1934, from which we got the Federal Communications Commission (FCC). And that act incorporated regulations from the Radio Act of 1927.

Government, in others words, has its hands all over radio, television, and, today, the internet. What part of “stay out of our personal and professional lives” is not understood by today’s politicians and commentators when promoting and endorsing the silencing actions of social media? These elites, of course, are Progressive experts who, for the past 130 or so years, have encouraged greater and greater government encroachment on our personal and professional lives.

Let’s now take a look at two practical consequences of regulatory intervention and then the constitutional issue.

First, a proper understanding of libel and defamation as established in common law fraud, or the law of deceit, requires proof of several stringent actions before the frauds can be concluded: a false material fact asserted by the deceiver, knowledge of its falsity, intention to deceive, reliance on the assertion’s truth by the deceiver’s audience, and objective injury or damages to the victim.

These requirements, for example, exempt most advertisers from charges of deception—except when their ads are reviewed by the very regulatory Federal Trade Commission. The FTC, depending on its inclinations and presidential administration, have in the past charged advertisers with “misleading and deceptive” advertising by dispensing with the knowledge and intent requirements and assuming injury if a consumer feels mislead or deceived.

The law of regulatory agencies is decidedly nonobjective, in the sense of being overly broad, vague, and often arbitrary.

As second consequence of regulatory intervention, let’s look at television. From the 1950s to the ‘80s, there were three, and only three, nationwide private, profit-making networks: CBS, NBC, and ABC. A fourth, the Dumont network, tried but failed to compete. Why?

The FCC controlled everything in television, from number of television stations allowed to exist in a given community to the number a network could own. The FCC controlled and allocated the number of channels that could exist, where they could exist, and, again, how many a network could have. Finally, entrepreneurs who wanted to run FM radio stations were competing for air waves with the television entrepreneurs, but the FCC decided who got what, where and when. Only three networks could survive such interventions. (See Laissez Parler: Freedom in the Electronic Media, pp. 16-18.)

Why do regulatory agencies have such power? Don’t these agencies violate the separation of powers clause of the US Constitution? After all, they combine the legislative, executive, and judicial functions in one agency: the commissioners write the rules, then execute and adjudicate them (with no jury). Progressives and the Supreme Court from the 1920s on have relied on the rationalization that regulatory agencies are a delegation of power by Congress, a “specification” of Congressional legislation.

Regulatory powers, however, do violate the separation of powers clause and are therefore violations of individual rights. They are, as Ward Lattin wrote in 1938, the “union [not separation] of powers,” the “precise thing that the framers of the Constitution quite unanimously agreed was the very definition of tyranny.”**

Conclusion? Free speech dies, most fundamentally, due to such government interventions. Getting the government out of our personal and professional lives means digging beneath the tip of the iceberg to find interventions, then repealing them. It is these interventions, especially those practiced by the FCC and FTC, that infringe our freedoms of speech and press.

Band aids—revisions of the existing interventions or amendments to them—are not the solution. They exacerbate the problems.

Political action required? Repeal, repeal, repeal!


* Why should social media be exempt from liability? The excuse given is that social media businesses would never be able to grow because they would be spending all their time and money fending off lawsuits. I doubt it. Strict enforcement of the common law requirements for fraud—in a fully free society—would make it difficult for frivolous lawsuits to arise. (The 1996 law, in addition, is also a quagmire attempt to deal with Justice Potter Stewart’s “I know it when I see it” test for obscenity—a paean, one might say, to nonobjective law and alleged and arbitrary “community standards.”) Let the free market decide. Absent government interventions, social media would likely look quite different than it does today—all to the better for both consumers and competitors. Contrary to how Progressives think and view themselves, there is no omniscient deity or crystal ball in Washington, DC, that can predict what the market would or should look like. Only the market—that is, the free choices of consumers and competitors—can decide.

** Ward E. Lattin, Federal Administrative Regulatory Agencies and the Doctrine of the Separation of Powers (Washington, DC: Georgetown University Press, 1938), 27. The book, unfortunately, is not listed either at Amazon.com or ABEbooks.com. See also The Administrative Threat, passim, by Philip Hamburger and Illiberal Reformers: Race, Eugenics, and American Economics in the Progressive Era, pp. 42-45, by Thomas C. Leonard. The 1985 book cited by O’Grady is Harnessing the Intellectuals: Censoring Writers and Artists in Today's Cuba by Carlos Ripoll.