Censorship—Direct and “Pre-"

Although censorship is always a government action, it does not always occur through an official “ministry of truth” or “department of truth and social justice.”

Free speech dies in many ways and the ways all support one another. I addressed the process in two previous posts (1, 2) and called some of the ways “pre-censorship,” meaning they are not explicitly or directly actions of the government.

Let me clarify the continuum of attacks on free speech, starting with direct government involvement. (There is likely to be some overlap.)

1. The Government Bureau. The worst, of course, would be the establishment of a “Department of Truth and Social Justice”  at the cabinet level. Such an action would increase the deep state’s control over what we can and cannot say or do, and would be the last stake in the heart of our free society.

2. Congressional or Other Government Threat. I did not include this in my previous posts but the Supreme Court has made it clear that de facto government censorship occurs by turning private firms into state actors. Threats of fine or imprisonment or antitrust lawsuits, or the revocation of Section 230 of the 1996 Communications Decency Act, enable Congress and other Governnent agencies to coerce businesses to do the government’s bidding.

Recent congressional committees that have grilled social media executives about their publication of alleged “mis-” and “dis-” information are the most recent examples. Ramaswamy and Rubenfeld in a Wall Street Journal op-ed cite several Supreme Court cases, including Norwood v. Harrison (1973). The court in this case said the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish” (quoted in the op-ed).

The authors go on to say that this court holding would cover Section 230 that allows private firms not just to censor speech, but also exempts them from liability.

The removal of books from libraries and retail stores, or the refusal to publish manuscripts, at the behest of Congress and other agents of the government is tantamount to book burning.

In a truly free, laissez-faire society, of course, none of these acts, agencies, or laws—a Section 230, a “Decency Act,” a Federal Communications Commission, or antitrust laws—would exist.

The next two attacks on free speech may be described as pre-censorship, as I did in my earlier post, but the government involvement is still quite direct. Let me call these two a middle range between outright censorship and pre-censorship.

3. Nonobjective Law. This third attack on free speech is nonobjective law and its consequence, scapegoating. An excessive number of laws, especially those that are vague and overly broad, allow prosecutors, whether federal, state or local, to go after anyone they dislike or disagree with. This leads to the Levrenti Beria claim (1, p. 70; 2): “Show me the man and I’ll find you the crime” and is dangerous for a free society, as government censors actively can use the legal system to control thought and speech. The fluidity of nonobjective law makes it easier to criticize and blame disliked persons and groups, and ultimately to conduct purges and pogroms against them.

4. Government Education. The fourth form of “mid-range” censorship is government-run education, whether K through 12 or colleges and universities. The purpose historically of having the government run education has always been to control thought and speech—this is the meaning of “national” education, as in conforming to the national government’s values. And this education, at least in the K-12 years, or most of those years, is compulsory. At the university level, the control is maintained through the government’s approved accreditation agencies.

I also include in this mid-range private schools and universities that pay lip service to upholding the First Amendment, but do not. Such schools usually enjoy substantial government-granted privileges, such as massive amounts of research money, student loans, and are anointed by the government’s accreditation standard bearers.

Private schools that have statements in their charters upholding certain precepts of a religion or philosophy and stating that teachers and students are expected to abide by those precepts are not government censors. Freedom of speech presupposes property rights, which means any private business (or homeowner) who does not enjoy government-granted privileges may kick out or prevent from entering anyone the owner dislikes or disagrees with.

The difficulty in today’s badly mixed society of freedom and government interventions is to sort out and find the interventions. Those businesses that enjoy major interventions are in fact “state actors.”

The final two forms of censorship that I think are properly called “pre-” censorship were identified by philosopher Bertrand Russell and novelist George Orwell, with edits and additions by me. “Pre” means no apparent government involvement, but the silencing of dissent that results softens the populace by letting them know they must be careful about what, when, and where they say whatever might be attacked. Pre-censorship chills speech, paving the way for the acceptance of direct and indirect government involvement.

5. Economic Penalties. This is cancel culture that demotes or fires, or works hard to have demoted or fired, anyone who does not toe the party line. Tactics can include blacklisting, disinvitation, and intimidation and violence by street thugs, especially the destruction of property. As the culture moves more and more toward dictatorship, violence to person becomes common. The primary aim is to prevent the victim from earning a living. Ultimately, it means imprisonment or execution.

6. Distortion of Evidence. Smears and propaganda, libels, double standards, suppression of criticism, sins of omission. These are all practiced by the intelligentsia: media, teachers, professors, entertainers, and business leaders all of whom toe the party line. The mainstream media leads the way—as it did in Fidel Castro’s Cuba, forcefully described by Mary Anastasia O’Grady in her WSJ Column October 25, 2020. The mainstream press paves the way for the dictator by preaching the gospel of the party and censuring those they disagree with using these tactics of evidence distortion. Facts and truth are out in the media. Fictions, aka “narratives,” as in “you have your truth and we have ours,” are created to destroy their opponents.*

News commentator Bill O’Reilly recently asked, “How long can a nation remain free if its press is dishonest?” Answer, not long unless something changes.**

One final note about congressional threats and Section 230 as it relates to social media. I have several times urged the repeal of Section 230 and the FCC on moral and constitutional grounds. Ramaswamy and Rubenfeld make an interesting practical argument at the conclusion of their column. Yes, they acknowledge that social media companies have grown large by their privileged exemption from liability, but to repeal 230 now probably would not affect them. Repeal, however, would make it difficult for startups to grow. They suggest lawsuits against social media, citing the case law that they mention in their article.

The issues concerning today’s social media are legal, moral, and practical. Ramaswamy and Rubenfeld prefer the practical route, which may work in the near future. The longer term solution requires repeal.


* The print media in the US today are generally thought to be free of government regulation, control, or privileges, in contrast to broadcast that are in the hands of the Federal Communications Commission. But print media were given significant privileges in two Supreme Court cases, in 1964 and 1967. The cases greatly delimited the ability of public figures to sue the media for defamation. This enabled all media to practice libel without fear of reproach.

** See journalist Glenn Greenwald for a detailed presentation of how thinking in principles is absent from today’s mainstream media, replaced by judgment based on personality and ideology. Also see Alex Berenson’s book Pandemia for a fact-filled demonstration of how journalism used to be performed—a breath of fresh air in our recent climate of covid totalitarianism. As I have said before, the mainstream media are fools and useful idiots for thinking they will be protected when the real dictator takes over our country.

On Involuntary Servitude:“You’ll Do Something, Mr. Cook. . . . If You Don’t, We’ll Make You.”

The March 28 Time magazine cover story about Apple Inc.’s legal battle against the FBI and the lengthy interview with CEO Tim Cook are well worth the read.* So also is the earlier February 25 column on this case by Judge Andrew Napolitano.

There are several takeaways from the three pieces.

The FBI in February had ordered Apple to create new software to hack the encrypted iPhone of a dead terrorist. Apple contested the order, saying it would be a violation of civil liberties and that such software would put a master key in the hands of bad guys all over the world, including authoritarian governments. This, Cook says, is tantamount to banning encryption.

The case is now moot, because the FBI did what it should have done in the first place: it hired an independent firm to hack the phone, presumably achieved without creating new software. The order at the FBI’s request has been vacated, but the issues, including the possible future coercing of Apple and other tech firms, remain.

Tim Cook in the Time article and interview says that banning encryption means only the bad guys—such as terrorists—will have it, because encryption software is widely available beyond the borders of the United States. I doubt that Cook intended this, but he is making the same argument as the defenders of the Second Amendment: ban guns and only the bad guys will have them!

Cook says the court order amounted to a violation of the civil liberties of Apple’s customers, especially their right to privacy. Judge Andrew Napolitano made it an issue of due process, because Apple was not given proper notice, and, more significantly, a case of involuntary servitude.

Let’s take involuntary servitude first. The phrase comes from the Thirteenth Amendment to the US Constitution that outlaws slavery. The Supreme Court, however, has issued a number of rationalizations why a military draft and other forms of forced labor do not constitute servitude. The main excuse is that the amendment was passed specifically to apply to African slavery, not to other forms of forced labor. That is, all young, able-bodied men—and today, women—owe a duty, when so ordered, to perform work for their government and, if “necessary,” to go die for the old men (and women) in power in Washington.

The justices of the Supreme Court, not to mention legal experts and other intellectual leaders, both today and yesterday, have failed to understand that rights are absolute and universal. A freedom to take action, when not infringing anyone else’s freedoms, is a freedom to take action.

And slavery is slavery, as Judge Napolitano argued. Slave labor is precisely what Apple was asked to perform.

Indeed, the FBI vs. Apple case was an Atlas Shrugged moment on at least two counts. Several Apple engineers had stated that they would refuse to write such requested new software for the FBI, risking fines and imprisonment. Or quit. In effect, they were threatening to strike.

The working title of Ayn Rand’s novel was The Strike.

The case most amazingly was a Hank Rearden moment. I’m referring to the passage in the novel where the steel titan is ordered by James Taggart and his cronies to produce at a loss and therefore make the irrational work. When Rearden asks how he is supposed to accomplish that, Taggart responds, “Oh, you’ll do something.”

A major theme of the novel is that creativity and innovation do not work at the point of a gun, but that was what the FBI was asking and expecting Apple to do.

What our country needs more of today are business CEO’s with the integrity and courage of Mr. Cook—to stand up to their government.

In fact, this confrontation between the FBI and Apple would make an excellent business ethics case for future (or even current) executives to discuss.

The civil liberties issue that Cook talks about brings up the canard about privacy versus security. Cook wants to defend his customers’ privacy. The FBI and Washington don’t give a hoot.

When a crisis occurs, the politicians and bureaucrats scream security over privacy. Rights be damned. And the use of fear by the government usually succeeds in getting citizens to cough up their rights.

Cook points out that the government wanted Apple to create a master key and give up the privacy—which really means security and safety—of millions of people around the world in order to go after a “sliver” of bad guys.

Somehow the lawyers in Washington seem to have forgotten the training that taught them a most important principle of the free society, namely that it is better for a guilty person to go free—that would be Cook’s sliver of bad guys—than for an innocent one to be sent to jail.

Plus, as long as I am talking about involuntary servitude, this brings up the related Vietnam War era discussions of the prospects of an all-volunteer army. “There might not be enough volunteers,” the supporters of the draft yelped incredulously. Two answers were given, aside from the prickly issue of rights versus slavery: one, perhaps the war was not just and we shouldn’t be involved at all, or two, if the war is just and the country does not have enough volunteers, then the country deserves what is coming to it.

This last applies similarly to the FBI’s attempt to force Apple into involuntary servitude, for unjust means to a just end can never be moral. Coercing Apple to hack a dead terrorist’s phone to obtain information that might prevent the occurrence of a future event destroys the principle of justice and ethics.

If, however, in the name of justice the FBI refused to coerce Apple and, as consequence, failed to obtain such information, at the very least it could then stand tall and say that it upheld a cardinal principle of the free society.

The real—practical—issue here, though, is that the FBI (and government as a whole) needs to become proactive in creating better crossbows. In any weapons race, the bad guys will sooner or later obtain the latest crossbow, or encryption technology, which means the good guys must stay one step ahead of the bad. Apple has done, and is continuing to do, just that.

It is time for the government to do the same, instead of wasting money and resources trying the coerce Apple to correct the FBI’s own mistakes.

The FBI’s mistake was the order to reset the iPhone’s passcode, which resulted accidentally in the Bureau’s inability to access the phone’s information.

In the few weeks of this FBI standoff, Apple fortunately was not raided by gangs of armed, bulletproof vested SWAT teams. Apple is a high profile, well-liked firm and escaped—for now—such inexcusable tyranny.

Tennessee based Gibson Guitar a few years ago was not so fortunate.

After the SWAT teams left, Gibson CEO Henry Juszkiewicz, like Tim Cook, spoke up to defend his business. Never charged (for illegally importing wood from Madagascar and India), and, of course, no apologies given, Gibson was slapped with a fine and a gag order—to never again speak up to point out how unjust the US Justice Department is, which is to say: to never again attempt to defend itself.


*Dated March 17 in the digital versions.

Postscript. I cannot pretend to keep up with all the issues involved in this post’s encryption battle, but WhatsApp, the online messaging service, has just announced that it has encrypted all messages of its billion or so worldwide users. No one in the WhatsApp office can listen in to or hack what is being, or has been, said.

WhatsApp’s analogy to defend encryption is that what is now being done electronically has been done for centuries without the electronics, because it is just conversation that formerly was done at the water cooler or under an old oak tree. If the FBI wants the information that is being discussed, it either needs to subpoena the participants or send spies to the coolers and trees.

Spooks on the ground to gather intelligence. What a novel idea! It used to be done but, as I recall, budget cuts going back to the Clinton administration led to the post-9/11 hysteria about weapons of mass destruction in Iraq. The Bush administration had to rely on satellite photographs to verify information that should have been obtained with real people seeing with their own eyes.