The Insidious Ways of Government Censorship

By Jerry Kirkpatrick

December 30, 2021

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.

Free speech dies in many ways and the ways all support one another. I addressed the process in previous essays (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 previously 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 Government 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 essay, but the government involvement is still quite direct. Let me call these two a middle range between outright censorship and pre-censorship.

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.

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.

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.

This is cancel culture that demotes or fires anyone who does not toe the party line.

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.

This essay originally appeared December 7, 2021 on Jerry Kirkpatrick’s Blog under the title “Censorship—Direct and “Pre-“

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