It seems awfully likely that Mark Zuckerberg, the dead-eyed CEO of Facebook, and disgraced Dr. Anthony Fauci, the highest paid employee of the United States government and tinpot dictator of the 14-month-long two-weeks-to-flatten-the-curve, colluded to keep certain facts and opinions about Covid from being expressed on Facebook.
The facts about the likely origin of Covid have proven true, and Fauci to be a liar. But the truth of the propositions is immaterial to the issue at hand. The First Amendment forbids government to censor Americans’ speech in any content-based or partisan ways. It may, under longstanding doctrine, only regulate, in limited and wholly objective and non-biased ways, the “time, manner and place” of some sorts of expression.
Moreover, the government and its representatives may not “contract out” to private parties to do things that the government would be forbidden to do itself. This is collusion (of the sort that the press covered constantly when Donald Trump wasn’t doing it, but can’t raise any interest in covering when left-wing government actors really are). It is a conspiracy to deny Americans their civil, constitutional rights – in this case, the right of free and open expression.
Evidence of collusion appears in emails between Zuckerberg and Fauci. Or rather, it appears to have been redacted from the released versions of those emails. But government cannot redact its way out of criminal behavior. That would just be further action in advancement of the conspiracy.
I think that the technical way to bring such a charge is under section 1983 or 1985 of the federal criminal code or by a Bivens action; I took both civ pro and criminal law in the fall of 1996, heaven help me, and don’t absolutely recall. But it is a crime to conspire to deny Americans their civil rights. The sort of crime that carries jail terms.
House Minority Leader Kevin McCarthy has called for Fauci to be fired. Senator Ted Cruz has mused about liability obtaining to Fauci and to Facebook and Zuckerberg. But firing and liability may not suffice. Prosecution may well be warranted.
And, of course, once an investigation into criminal activity begins, there are potential co-conspirators to consider. After all, it wasn’t just Facebook that stopped Americans from posting facts and opinions about Covid, the lockdowns and related topics. YouTube, owned by many-tentacled monolith Alphabet, the parent company of Google, yanked down videos that disagreed with the Fauci line. Twitter acted similarly. Were those actions, mirrors of Facebook’s collusive behavior, driven by a wider conspiracy that included them as well? Or was it just complete coincidence? That seems like exactly the sort of thing into which the investigation should look. Similarly, was government collusion limited to Dr. Fauci alone? Has Zuck written similar emails to other government officials, and then acted on their instructions to constrain American speech? Has Jack Dorsey or his minions? Tim Cook & Co.? The Google gang?
While this investigation continues, and without regard to what it finds, the Fauci debacle and the tech lords’ eagerness to ban anything that conflicted with the bad doctor’s ever-changing, always-self-serving pronouncements has made the point eloquently: Big Tech censorship must be made terrifically costly indeed.
Many commentators have talked about repealing or reforming section 230 of the Communications Decency Act of 1996, which exempts tech firms from libel liability. But while repealing the section would be a good idea, it is certainly not a sufficient solution to the tech-tyranny crisis. Repeal alone might force the tech censors to simply increase their censorship of left-wing speech as well. But that is not, at least in my humble opinion (or that of the American founders, and even of the ACLU until it lost its nerve, its spine and its mind, handing them over to the woke looters without a murmur) the goal. What we want is for no one to censor American speech. Let a thousand thoughts spring forth. Let holders of stupid or evil ideas shout them, and get the responses they deserve. Let bad ideas be fully discussed, and properly dispatched. That’s the American Way.
If that’s so, then the analysis should be: What (minimal) legal reforms can we make to render censorship by tech companies too expensive to contemplate?
Today’s suggestion: Enact tort laws that render tech companies liable for any damages that arise as a result of their censorship of any information, and establish that damages will be presumed in any instance in which censored information later turns out to be true. At the same time, expressly retain an exclusion from liability (for the tech companies) for information that is not censored even if it later turns out to be false or defamatory.
This little reform would make the decision to censor always potentially more, and possibly much more, expensive than the decision to forego censorship – especially if the censorship arises not from certainty of facts but from ideological predisposition. And it would place enforcement in the hands of private parties, governed by private law. Private law always trumps public, because it does not bring in its wake reams of regulations and costly and oppressive administration by government employees.
This reform could come in the form of a revision of section 230, but the better choice would be repeal of that section followed by enactment of the reform by states. Tort law is traditionally state law, and the more areas of law that remain in state hands, the better. Laboratories of democracy, and all that. And if the worst-managed blue states don’t enact the law, fine. This will be just another way in which they are inferior to the red states, creating another impetus for conservative-minded people to migrate to red jurisdictions, depriving the blue tyrannies of the tax-fuel of their oppression.
I would expect Zuckerberg and Fauci to remain in blue states – assuming the choice is still theirs.