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The case is today's Sixth Circuit decision in Meriwether v. Hartop, written by Judge Amul Thapar and joined by Judges David McKeague and Joan Larsen. There are a lot of moving parts here, so let me go through them one by one.

[A.] First, the facts: Shawnee State University had a policy requiring that students "refer to students by their 'preferred pronoun[s].'" Prof. Nicholas Meriwether disagreed, and "proposed a compromise: He would keep using pronouns to address most students in class but would refer to Doe [a transgender student in his class] using only Doe's last name." The University at first agreed, but then changed its mind.

The University also refused another proposed compromise that Meriwether offered: "allow him to use students' preferred pronouns but place a disclaimer in his syllabus 'noting that he was doing so under compulsion and setting forth his personal and religious beliefs about gender identity." The Dean "insisted that putting a disclaimer in the syllabus would itself violate the university's gender identity policy."

Meriwether sued, and the Sixth Circuit allowed his case to go forward; but because of the particular facts, the court didnotdecide whether a professor could insist on actually using a pronoun that didn't match the student's preferred pronoun. Rather, the court only considered whether a professor coulddecline to use the student's preferred pronoun.

[B.] Now, the background legal rule: Generally speaking the government may discipline (including firing) an employee based on the employee's speech if

This is quite different from the rules for criminal or civil liability for speech. Speech doesn't usually lose First Amendment protection, for instance, just because it's on a matter of purely private concern. Likewise, courts generally don't do case-by-case balancing of the value of speech against the harm that the speech causes. But when the government is acting as employer, it has a great deal of extra authority, especially over how its employees treat the government's clients and more generally over how they do their jobs.

[C.] But there have also been lots of cases that say that academic employment is different from other forms of employment, and this is what happened here.

[1.] The court followed earlier decisions by the Fourth and Ninth Circuit (and an implicit decision of the Fifth Circuit) in holding that theGarcettino-protection-for-speech-within-job-duties doctrine doesn't apply to public university teaching:

[Garcetti] expressly declined to address whether its analysis would apply "to a case involving speech related to scholarship or teaching." See also Adams v. Trs. of the Univ. of N.C.-Wilmington (4th Cir. 2011) ("The plain language of Garcetti thus explicitly left open the question of whether its principles apply in the academic genre where issues of 'scholarship or teaching' are in play."). [And the Court's earlier decisions] have "long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition."

If professors lacked free-speech protections when teaching, a university would wield alarming power to compel ideological conformity. A university president could require a pacifist to declare that war is just, a civil rights icon to condemn the Freedom Riders, a believer to deny the existence of God, or a Soviet migr to address his students as "comrades." That cannot be. "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe" such orthodoxy.

Remember, too, that the university's position on titles and pronouns goes both ways. By defendants' logic, a university could likewise prohibit professors from addressing university students by their preferred gender pronounsno matter the professors' own views. And it could even impose such a restriction while denying professors the ability to explain to students why they were doing so. But that's simply not the case. Without sufficient justification, the state cannot wield its authority to categorically silence dissenting viewpoints.

[T]he academic-freedom exception to Garcetti covers all classroom speech related to matters of public concern, whether that speech is germane to the contents of the lecture or not. The need for the free exchange of ideas in the college classroom is unlike that in other public workplace settings. And a professor's in-class speech to his students is anything but speech by an ordinary government employee.

Indeed, in the college classroom there are three critical interests at stake (all supporting robust speech protection): (1) the students' interest in receiving informed opinion, (2) the professor's right to disseminate his own opinion, and (3) the public's interest in exposing our future leaders to different viewpoints. Because the First Amendment "must always be applied 'in light of the special characteristics of the environment' in the particular case," public universities do not have a license to act as classroom thought police. They cannot force professors to avoid controversial viewpoints altogether in deference to a state-mandated orthodoxy. Otherwise, our public universities could transform the next generation of leaders into "closed-circuit recipients of only that which the State chooses to communicate." Thus, "what constitutes a matter of public concern and what raises academic freedom concerns is of essentially the same character."

Of course, some classroom speech falls outside the exception: A university might, for example, require teachers to call roll at the start of class, and that type of non-ideological ministerial task would not be protected by the First Amendment. Shawnee State says that the rule at issue is similarly ministerial.

But as we discuss below, titles and pronouns carry a message. The university recognizes that and wants its professors to use pronouns to communicate a message: People can have a gender identity inconsistent with their sex at birth. But Meriwether does not agree with that message, and he does not want to communicate it to his students. That's not a matter of classroom management; that's a matter of academic speech.

[2.] The court then held that the speech here was on a matter of "public concern":

When speech relates "to any matter of political, social, or other concern to the community," it addresses a matter of public concern. Thus, a teacher's in-class speech about "race, gender, and power conflicts" addresses matters of public concern. A basketball coach using racial epithets to motivate his players does not. "The linchpin of the inquiry is, thus, for both public concern and academic freedom, the extent to which the speech advances an idea transcending personal interest or opinion which impacts our social and/or political lives."

Meriwether did just that in refusing to use gender-identity-based pronouns. And the "point of his speech" (or his refusal to speak in a particular manner) was to convey a message. Taken in context, his speech "concerns a struggle over the social control of language in a crucial debate about the nature and foundation, or indeed real existence, of the sexes. That is, his mode of address was the message. It reflected his conviction that one's sex cannot be changed, a topic which has been in the news on many occasions and "has become an issue of contentious political debate."

Never before have titles and pronouns been scrutinized as closely as they are today for their power to validateor invalidatesomeone's perceived sex or gender identity. Meriwether took a side in that debate. Through his continued refusal to address Doe as a woman, he advanced a viewpoint on gender identity. Meriwether's speech manifested his belief that "sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual's feelings or desires." The "focus," "point," "intent," and "communicative purpose" of the speech in question was a matter of public concern.

And even the university appears to think this pronoun debate is a hot issue. Otherwise, why would it forbid Meriwether from explaining his "personal and religious beliefs about gender identity" in his syllabus? No one contests that what Meriwether proposed to put in his syllabus involved a matter of public concern.

[3.] Finally, the court held that thePickeringbalance tipped in favor of protection for Meriwether's speech, again because of the academic freedom context:

Start with Meriwether's interests. We begin with "the robust tradition of academic freedom in our nation's post-secondary schools." That tradition alone offers a strong reason to protect Professor Meriwether's speech. After all, academic freedom is "a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom." And the First Amendment interests are especially strong here because Meriwether's speech also relates to his core religious and philosophical beliefs. Finally, this case implicates an additional element: potentially compelled speech on a matter of public concern. And "[w]hen speech is compelled additional damage is done."

Those interests are powerful. Here, the university refused even to permit Meriwether to comply with its pronoun mandate while expressing his personal convictions in a syllabus disclaimer. That ban is anathema to the principles underlying the First Amendment, as the "proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" Indeed, the premise that gender identity is an idea "embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view."

And this is particularly true in the context of the college classroom, where students' interest in hearing even contrarian views is also at stake. "Teachers and students must always remain free to inquire, to study and to evaluate, [and] to gain new maturity and understanding."

On the other side of the ledger, Shawnee State argues that it has a compelling interest in stopping discrimination against transgender students. It relies on EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (6th Cir. 2018) in support of this proposition. But Harris does not resolve this case. There, a panel of our court held that an employer violates Title VII when it takes an adverse employment action based on an employee's transgender status.

The panel did not holdand indeed, consistent with the First Amendment, could not have heldthat the government always has a compelling interest in regulating employees' speech on matters of public concern. Doing so would reduce Pickering to a shell. And it would allow universities to discipline professors, students, and staff any time their speech might cause offense. That is not the law. See Street v. New York (1969) ("[T]he public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers."). Purportedly neutral non-discrimination policies cannot be used to transform institutions of higher learning into "enclaves of totalitarianism."

Turning to the facts, the university's interest in punishing Meriwether's speech is comparatively weak. When the university demanded that Meriwether refer to Doe using female pronouns, Meriwether proposed a compromise: He would call on Doe using Doe's last name alone. That seemed like a win-win. Meriwether would not have to violate his religious beliefs, and Doe would not be referred to using pronouns Doe finds offensive. Thus, on the allegations in this complaint, it is hard to see how this would have "create[d] a hostile learning environment that ultimately thwarts the academic process."

It is telling that Dean Milliken at first approved this proposal. And when Meriwether employed this accommodation throughout the semester, Doe was an active participant in class and ultimately received a high grade.

As we stated in Hardy, "a school's interest in limiting a teacher's speech is not great when those public statements 'are neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.'" The mere "fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." At this stage of the litigation, there is no suggestion that Meriwether's speech inhibited his duties in the classroom, hampered the operation of the school, or denied Doe any educational benefits. Without such a showing, the school's actions "mandate[] orthodoxy, not anti-discrimination," and ignore the fact that "[t]olerance is a two-way street." Thus, the Pickering balance strongly favors Meriwether.

Finally, Shawnee State and the intervenors argue that Title IX compels a contrary result. We disagree. Title IX prohibits "discrimination under any education program or activity" based on sex. The requirement "that the discrimination occur 'under any education program or activity' suggests that the behavior [must] be serious enough to have the systemic effect of denying the victim equal access to an educational program or activity."

But Meriwether's decision not to refer to Doe using feminine pronouns did not have any such effect. As we have already explained, there is no indication at this stage of the litigation that Meriwether's speech inhibited Doe's education or ability to succeed in the classroom. Bauer even admitted that Meriwether's conduct "was not so severe and pervasive that it created a hostile educational environment." Thus, Shawnee State's purported interest in complying with Title IX is not implicated by Meriwether's decision to refer to Doe by name rather than Doe's preferred pronouns.

[D.] The panel also allowed Meriwether's Free Exercise Clause to go forward, based on the allegations that "officials at Shawnee State exhibited hostility to his religious beliefs" and that "irregularities in the university's adjudication and investigation processes permit a plausible inference of non-neutrality." That part of the opinion also discussed an interesting factual twist:

[T]he university argues that Meriwether simply could have complied with the alternative it offered him: Don't use any pronouns or sex-based terms at all. This offer, the university says, would not violate Meriwether's religious beliefs. But such an offer has two problems. First, it would prohibit Meriwether from speaking in accordance with his belief that sex and gender are conclusively linked. And second, such a system would be impossible to comply with, especially in a class heavy on discussion and debate. No "Mr." or "Ms." No "yes sir" or "no ma'am." No "he said" or "she said." And when Meriwether slipped up, which he inevitably would (especially after using these titles for twenty-five years), he could face discipline. Our rights do not hinge on such a precarious balance.

The effect of this Hobson's Choice is that Meriwether must adhere to the university's orthodoxy (or face punishment). This is coercion, at the very least of the indirect sort. And we know the Free Exercise Clause protects against both direct and indirect coercion.

[E.] So there are several important conclusions and implications here, it seems to me:

Go here to read the rest:
Pronouns in the University Classroom & the First Amendment - Reason

Over the past year or so, ANC 6B10 commissioner Denise Krepp has tweeted updates on ANC business, as well as personal communications. She has also blocked constituents on the platform, as well as other DC residents and fellow ANC commissioners with whom she did not see eye to eye.

One of the residents she blocked, Mark Hecker, felt that it was inappropriate for an elected official to prevent her constituents from reaching her in an official capacity on social media. On Monday, his attorneys filed a complaint, which you can read here. Hecker announced the complaint via the following tweet, which links to a blog post by attorney Jason Harrow:

The complaint chronicles, in meticulous detail, not just the interactions between Hecker, a Kingman Park resident, and commissioner Krepp, but also explains the dynamics of Twitter and its role as a public forum.

Denise Krepp tells me that, as of Wednesday, she has not been served and has no comment. She added, Im going to continue to ask questions and Im going to continue being an ANC commissioner. Hecker said, My understanding is that it was filed Monday, but because of COVID some procedures seem to be happening very slowly. I reached out to Charlie Gerstein with this same question. He said, The court did not issue a summonsthe formal document acknowledging that the case has been properly fileduntil today. It usually takes two to three days for that to happen. We served the district this afternoon by email, and will serve Krepp tomorrow or the day after personally.

As of Wednesday afternoon, it appears that many of the people Krepp had originally blocked have now been unblocked. I asked Hecker if this changed anything in regards to the lawsuit and this is what he had to say: We plan to continue. Im not interested in making money, but I do think its important that the courts determine whether this behavior is a violation of the first amendment. We believe it is, and we look forward to the judges decision, even if Commissioner Krepp seems to now realize she was in the wrong.

Although only Hecker decided to engage a lawyer and sue Krepp for her alleged First Amendment violations, other people to whom I spoke for this post mentioned that they were also unhappy with Krepps behavior something that was shared widely on Twitter itself. One of the people to whom I spoke shared this sentiment anonymously: Hopefully this will garner attention that the focus should be on the harm that [Ms. Krepp] causes to Black and Brown residents in her ANC, not solely on whom she blocks on social media.

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Is blocking a constituent on Twitter against the First Amendment? This DC resident thinks so | The Hill is Home - The Hillishome

Well folks, it just doesnt get any more important than this.

The first ever appellate decision analyzing whether a discriminatory statute impacting speech can be applied in a discriminatory manner following an equal treatment First Amendment determination is set to be handed down in Lindenbaum

As ACLU attorney David Carey explained to Unprecedented today if the statutes like the TCPA can be applied in a discriminatory manner than free speech can be blocked as favored speakers are free to violate a restriction and disfavored speakers are unconstitutionally silenced.

This has HUGE implications for society at large and really threatens to make a nullity of the First Amendment protections we all hold so dear.

And, of course, the TCPA is right at the center of this existential battle over the fate of the First Amendment.

Why?

Because courts have shown time and again they are willing to throw out First Amendment protections when it comes to battling the robocall epidemic.

With these considerations in mind the ACLU has joined the critical fight to protect the First Amendment from robocall-induced erosion and submitted a BRILLIANT amicus brief in the critical Lindenbaum appeal, that you can read here.

We break down all of this with David, and hear from University of Michigan, 3L Jonah Rosenbaum about his impressive and critical assistance on the brief that helps highlight why the battle over Creasy is really a battle to protect our civil rights more broadly.

You will not want to miss this HUGE interview, which will drop next week right here.

To get you ready for the big interview, feel free to peruse my commentary on the First Amendment dimensions of the TCPA over the years, and my extremely-well read article on the dire impact of AAPC on the First Amendment landscape.

Chat soon.

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BREAKING: ACLU Representatives Join Unprecedented Podcast to Discuss HUGE Ramifications of Creasy/Lindenbaum/TCPA on First Amendment Rights - Lexology

In January, Texas Attorney General Ken Paxton issuedcivil investigative demands(CIDs) to Twitter and other internet platforms requesting information about their content moderation practices pursuant to the offices authority under the state Deceptive Trade Practices-Consumer Protection Act. Twitter has since sued the attorney general to block enforcement of the CID issued to it. The Reporters Committee authored afriend-of-the-court briefin support of Twitter last week, joined by the Center for Democracy and Technology, the Electronic Frontier Foundation, the Media Law Resource Center, and PEN America.

Paxton has been vocal about Twitters suspension of former President Trumps account. A day after Twitter did so, Paxtontweetedhe would fight the company with all Ive got. In apress releaseabout the CIDs, Paxton explicitly linked the demands to the discriminatory and unprecedented step of removing and blocking President Donald Trump from online media platforms.

The CID issued to Twitter requests copies of terms of service, content moderation policies, all public statements made about content moderation and internal communications with or about the site Parler.

Twitter argues that the attorney generals actions are retaliatory and chill its content moderation practices, which are First Amendment-protected speech. The friend-of-the-court brief submitted by the Reporters Committee notes that government efforts to use regulatory schemes to investigate perceived bias in moderation practices would contravene the U.S. Supreme Courts rule inMiami Herald Publishing Company v. Tornillo that governmental regulation of editorial control and judgment cannot be exercised consistent with First Amendment guarantees of a free press[.]

Tornillodealt with print media, but the Supreme Court has extended such protections to the internet as a communications medium. Much of public discourse today happens online, and public discourse needs breathing space for free debate to survive. Government interventions even in the name of viewpoint neutrality threaten to shape this debate in ways that suppress disfavored speech, the brief argues. Consequently, investigations like the attorney generals may undermine the protections established by the Supreme Court inTornillo.

The brief notes that even non-retaliatory regulatory actions can burden the free flow of information to the public, such as taxes on paper and ink used to produce newspapers. When such regulatory schemes are used to make government actors arbiters of bias, that risk becomes even more pronounced. Paraphrasing the Supreme Courts words inTornillo, responsible moderation may be a desirable goal, but it cannot be achieved through government mandate.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.

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RCFP urges court to order Texas AG to stop investigating Twitter - Reporters Committee for Freedom of the Press

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Timothy Wu wonders if the First Amendment is 'obsolete,' and believes in 'returning the country to the kind of media environment that prevailed in the 1950s'

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When Columbia law professor Timothy Wu was appointed by Joe Biden to the National Economic Council a few weeks back, the press hailed it as great news for progressives. The author ofThe Curse of Bigness: Antitrust in the New Gilded Ageis known as a staunch advocate of antitrust enforcement, and Bidens choice of him, along with the appointment of Lina Khan to the Federal Trade Commission, was widely seen as a signal that the new administration was assembling whatWiredcalled an antitrust all-star team.

Big Tech critic Tim Wu joins Biden administration to work on competition policy, boomed CNBC, whileMarketwatchadded, Anti-Big Tech crusader reportedly poised to join Biden White House. Chicago law professor Eric Posners piece forProject Syndicatewas titled Antitrust is Back in America.Posner noted Wus appointment comes as Senator Amy Klobuchar has introduced regulatorylegislationthat ostensibly targets companies like Facebook and Google, which a House committee last year concluded haveaccrued monopoly power.

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Wus appointment may presage tougher enforcement of tech firms. However, he has other passions that got less ink. Specifically, Wu who introduced the concept of net neutrality and onceexplained it to Stephen Colbert on a roller coaster is among the intellectual leaders of a growing movement in Democratic circles to scale back the First Amendment. He wrote an influential September, 2017 article called Is the First Amendment Obsolete? that argues traditional speech freedoms need to be rethought in the Internet/Trump era. He outlined the same ideas in a 2018 Aspen Ideas Festival speech:

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Listening to Wu, who has not responded to requests for an interview, is confusing. He calls himself a devotee of the great Louis Brandeis, speaking with reverence about his ideas and those of other famed judicial speech champions like Learned Hand and Oliver Wendell Holmes. In the Aspen speech above, he went so far as to say about First Amendment protections that these old opinions are so great, its like watchingThe Godfather,you cant imagine anything could be better.

If you hear a but coming in his rhetoric, you guessed right. He does imagine something better. The Cliffs Notes version of Wus thesis:

The framers wrote the Bill of Rights in an atmosphere where speech was expensive and rare. The Internet made speech cheap, and human attentionrare. Speech-hostile societies like Russia and China have already shown how to capitalize on this cheap speech era, eschewing censorship and bans in favor of flooding the Internet with pro-government propaganda.

As a result, those who place faith in the First Amendment to solve speech dilemmas should admit defeat and imagine new solutions for repelling foreign propaganda, fake news, and other problems. In some cases, Wu writes, this could mean that the First Amendment must broaden its own reach to encompass new techniques of speech control. What might that look like? He writes, without irony: I think the elected branches should be allowed, within reasonable limits, to try returning the country to the kind of media environment that prevailed in the 1950s.

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More ominously, Wu suggests that in modern times, the government may be more of a bystander to a problem in which private platforms play the largest roles. Therefore, a potential solution (emphasis mine) boils down to asking whether these platforms should adopt (orbe forced to adopt) norms and policies traditionally associated with twentieth-century journalism.

That last line is what should make speech advocates worry.

Wus appointment may not matter a lot to those concerned about constitutional freedoms because, as Stanford professor Nate Persily puts it, the current Supreme Court would be very hostile to any attempt to water down the First Amendment. If theres one thing thats consistent about the Roberts court, says Persily, its very strong speech protections.

However, theres a paradox embedded in this new Democratic mainstream thinking about speech in the Internet era. As one activist put it to me last week, the new breed of Democratic-leaning thinkers like Wu wants to be anti-corporate and authoritarian at the same time. Their problem, however, is that in order to effect change through authoritative action, they need to enlist the aid and cooperation of corporate power.

This paradox casts even the antitrust all-star team narrative about people like Wu and Khan in a different light. What may begin as a sincere desire by the Biden administration (or, at least, by figures like Wu, who by all accounts is a real antitrust advocate) to break up tech monopolies, may end in negotiation and partnership.

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While the liberal tradition of the party tilts toward antitrust action, the new, more authoritarian form of progressivism currently gaining traction is tempted by the power these companies wield, and instead of breaking these firms up, may be more likely to seek to appropriate their influence.

You can see this mentality in the repeated exchanges between Congress and Silicon Valley executives. An example is the celebrated October 23, 2019 questioning of Mark Zuckerberg by Alexandria Ocasio-Cortez in aHouse Financial Services Committee hearing. The congresswoman, as staunch a believer in the new approach to speech as there is in modern Democratic Party politics, repeatedly asks Zuckerberg questions like, So, you wont take down lies or you will take down lies? and Why you label theDaily Caller, a publication well-documented with ties to white supremacists, as an official fact-checker for Facebook?

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Grasping that everyone whos ever thought about speech issues throughout our history has been concerned with the publication of falsehoods, incitement to violence, libel, hate speech, and other problems, the issue here isnt thewhat, but thewho.The question isnt whether or not you think theDaily Callershould be fact-checking, but whether you think its appropriate to leave Mark Zuckerberg in charge of naming anyone at all a fact-checker. AOC doesnt seem to be upset that Zuckerberg has so much authority, but rather that hes not using it to her liking.

A minority of activists within Democratic Party circles believes that the fundamental reason platforms like Facebook end up being what journalist Matt Stoller describes as speech dumpster fires has to do with the financial model of these companies.

These are advertising monopolies who have centralized control over the discourse, is how Stoller puts it. Hepublished a piecefor the American Economic Liberties Project recently that suggests, A possible reform path would be to remove protections for firmsthatuse algorithms to monetize data. His point is that firms like Facebook are incentivized to push users of all political persuasions toward the most angering, conspiratorial, sensational content, while also discouraging exposure to alternative or debunking points of view a primary driver of our fact-starved political dilemma.

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In another piece the AELP published after January 6th, How To Prevent the Next Social Media-Driven Attack On Democracyand Avoid a Big Tech Censorship Regime,the Project noted that banning Donald Trump from Twitter is ineffective even as a draconian solution, because it doesnt alter the platforms basic incentive structure. Targeting the clickbait ad sales model for regulatory reform isnt a panacea, either, but from the standpoint of traditional liberalism, breaking up surveillance advertising monopolies has to be better than partnering with said monopolies to switch out one elitist concept of speech control for another.

This is where the paradox comes in. Every time a Democratic Party-aligned politician or activist says he or she wants the tech companies to take action to prevent, say, the dissemination of fake news, one has to realize that it makes little sense for those same actors to then turn around and advocate for breakups of those same firms. Anyone genuinely interested in clamping down on harmful speech would consciously or unconsciously want the landscape as concentrated as possible, because an information bottleneck makes controlling unwanted speech easier.

This idea of needing a more activist conception of speech control is clear in Wus writing. He speaks about the First Amendment operating as a negative right against coercive government action, while in the modern environment, the government not only needs to secure the freedomtospeak, but freedomfromabuses. He posits a First Amendment that acts as a right that obliges the government to ensure a pristine speech environment. Because that would be difficult to accomplish in the First Amendments current form, he suggests expanding the category of state action itself to encompass the conduct of major speech platforms like Facebook or Twitter.

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This is the subtext of those constant congressional demands that tech platforms fix the problems of unfettered speech. We have another round of such hearings coming this week. The House Energy and Commerce Committee will be having Zuckerberg, Googles Sundar Pichai, and Twitter CEO Jack Dorsey in to discuss, Disinformation Nation: Social Medias Role in Promoting Extremism and Misinformation.

The Committees ranking members and subcommittee chairs, Frank Pallone, Jr. of New Jersey, Mike Doyle of Pennsylvania, and Jan Schakowsky of Illinois, are adopting the now-familiar line of pushing to hold the tech firms accountable for their speech environments,sayingcongress must begin the work of changing incentives driving social media companies to allow and even promote misinformation and disinformation.

Do these members of congress, or thinkers like Wu, want to break up these monopolies, or harness them? To date, the answer has run decidedly in one direction. Previous congressional hearings involving tech CEOs Im thinking particularly of anOctober, 2017 hearing of the Senate Judiciary Committeein which Hawaiis Mazie Hirono demanded that the platforms come up with plans to keep bad actors who sow discord from manipulating social media already resulted in an overt partnership between Washington and Silicon Valley over content moderation decisions. The only question is, will that partnership become more expansive, as politicians become increasingly tempted by the power of these companies?

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As Stoller puts it, the Democrats have turned the tech battle into something like aLord of the Ringscontest, where the fight ends up being over the one ring of speech control. Others point out that the situation for new government appointees in the Biden administraiton will be complicated by the input of the intelligence services, whose point of view on this issue is clear and absolute: they love the bottleneck power of the tech monopolies and would oppose any effort to dilute it.

Still others wonder about the wisdom of creating powerful new partnerships with Silicon Valley, given that political realities may change and another set of actors may soon be driving the content moderation machine. Its not like all this ends with the Biden White House, is how Persily puts it.

Wus comment about returning to the kind of media environment that prevailed in the 1950s is telling. This was a disastrous period in American media that not only resulted in a historically repressive atmosphere of conformity, but saw all sorts of glaring social problems covered up or de-emphasized with relative ease, from Jim Crow laws to fraudulent propaganda about communist infiltration to overthrows and assassinations in foreign countries.

The wink-wink arrangement that big media companies had with the government persisted through the early sixties, and enabled horribly destructive lies about everything from the Bay of Pigs catastrophe to the Missile Gap to go mostly unchallenged, for a simple reason: if you give someone formal or informal power to choke off lies, theythemselvesmay now lie with impunity. Its Whac-a-Mole: in an effort to solve one problem, you create a much bigger one elsewhere, incentivizing official deceptions.

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That 1950s period is attractive to modern politicians because it was a top-down system. This was the era in which worship of rule by technocratic experts became common, when the wisdom of the Best and the Brightest was unchallenged. A yearning to return to those times runs through these new theories about speech, and is prevalent throughout todays Washington, a city that seems to think everything should be run by people with graduate degrees.

Going back to a system of stewardship of the information landscape by such types isnt a 21st-century idea. Its a proven 20th-century failure, and signing up Silicon Valley for a journey backward in time wont make it work any better.

This post first appeared at taibbi.substack.com and is republished here with permission.

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Matt Taibbi: A Biden appointee's troubling views on the First Amendment - National Post