New Lawsuit Challenges Censorship By A Number of Entities That Are Part of the Censorship Industrial Complex

The claims that Russian disinformation was impacting US elections were used to create a sprawling network of government and private entities that would create lists of social media accounts that allegedly contained “disinformation.”  These lists were sent to social media companies in an effort to suspend and/or remove these accounts from the platforms.  These lists covered many accounts that had no connection to any foreign power, and were apparently targeted simply because the entities creating the lists disapproved of the messages contained in the targeted social media posts.

Censorship efforts have a number of typical motivations.  Some call for censorship for rank political purposes.  If a political party can silence its opposition, it can hinder its effectiveness.  Censorship efforts are sometimes based on the elitist belief that individuals are incapable of distinguishing accurate from inaccurate information, or that they can not be trusted to reach the right conclusions.  Sometimes censorship is demanded to insulate people from statements that they deem hateful or offensive.  Whether something is hateful or offensive is oftentimes in the eye of the beholder, and masks the real desire to silence opposing viewpoints.  None of these reasons are a justification for censorship under the First Amendment, nor are they justifiable as a matter of practical reason.

While the First Amendment values underlie our general political system and our civil discourse, generally, the First Amendment itself limits efforts by government entities to restrain or censor speech.  While governments typically act through laws, regulations and policies, government entities can limit speech by conspiring with or threatening private entities to engage in censorship.

America First Legal has filed a class action lawsuit against a number of entities that it alleges conspired to censor speech the government did not approve.  One of the entities sued by America First Legal is Graphika, which was apparently created to fight terrorists during the war on terror and is now applying its tools to censor speech in the U.S.  Graphika received a three million dollar grant from the Department of Defense, and other funds from the Navy and Air Force.  The transformation of entities that were used to fight the war on terror to target speech by U.S. citizens is truly chilling.  Unfortunately, it is not surprising, given that top federal officials, including the President, have stated that the federal government needs to fight a war against “domestic terrorism.”

Another defendant is the Election Integrity Partnership, which is a consortium of the following groups: (1) the Stanford Internet Observatory, (2) Graphika (which has apparently become a private company), (3) Washington University’s Center for an Informed Public, and (4) the Atlantic Council’s Digital Forensics Research Lab.  Allegedly, the Department of Homeland Security played a role in the creation of the Election Integrity Partnership.

America First Legal alleges that these entities conspired with the federal government to have social media companies censor various disfavored viewpoints.  This is one of a growing number of lawsuits challenging various aspects of the censorship industrial complex.  It will take time for these lawsuits to play out in the courts.  In the meantime, one hope is that the lawsuits themselves will curb the constant calls for more censorship.

The problem is that the digital public square allows the government to push censorship indirectly by working with the small number of social media companies that control this space.  The government will claim that it only notified these social media accounts about problematic posts, and that the social media companies made their own choices.  The problem with this argument is that it misconstrues the role of government and what should be considered acceptable government conduct in a free society.  A presumption should exist that efforts by state or federal governments to have certain viewpoints censored on social media are improper, and that the government should address what it considers misinformation by supplying what it believes is better information.  While state and the federal government should not engage in conduct that goes against First Amendment norms, state and federal governments are much too powerful at this point to let them have a presumption that their requests for censorship are no different from a request coming from a private entity.

In today’s political climate, it is essential that Americans understand that they have speech-related rights. It can sometimes be difficult to determine if something qualifies as censorship and violates your right to free speech, but that should not deter you from pursuing and protecting the rights you do have. If you believe your First Amendment rights have been violated, contact our experienced Chicago civil rights law firm.