Few misadventures in government have met their demise so quickly, or in such humiliating fashion, as the Department of Homeland Security’s “Disinformation Governance Board.” The board, launched in April 2022 — purportedly to “coordinate countering misinformation related to homeland security” — lasted exactly three weeks before crumbling under a flood of scrutiny, outrage, and derision. (The board’s short-lived director, Nina Jankowicz, did her cause no favors by embodying — to an almost parodic degree — the equal parts sinister and ridiculous character of the burgeoning censorship regime).
Conservatives were quick to celebrate the dissolution of the board, but few paused to consider the most obvious reason for its jettison. The idea that the move represented a concession to democratic pressure was dubious; after all, the administrative state has never let antiquated concepts such as “the will of the people” and “representative government” get in the way of its enlightened designs. The far more likely explanation was simply that the Disinformation Governance Board was redundant; that its core purpose was already being served elsewhere; and that as a result, its decommissioning was (at best) a merely symbolic loss on behalf of the federal Leviathan.
Indeed, all of the available evidence suggests that the federal government was getting by just fine in its crusade to muzzle Americans prior to the formation of a specially designated wrongthink bureau. The government’s role in pushing Big Tech to censor inconvenient opinions — including the FBI’s weekly meetings with tech companies to discuss “disinformation” in the leadup to the 2020 election — is well established. The Biden administration has made no effort to conceal its activities in this context. Quite the contrary: In 2021, then-White House press secretary Jen Psaki openly boasted to reporters that the administration was “flagging problematic posts for Facebook that spread disinformation.”
All that came to a head in July 2023, when a district court in Louisiana issued an injunction — at least temporarily — against the federal government’s collusion with tech platforms. In his written opinion for the case, Justice Terry Doughty determined the Biden administration employed “unrelenting pressure” to suppress “millions of protected free speech postings by American citizens” — a move that he described as potentially amounting to “the most massive attack against free speech in United States’ history.”
In September, the Fifth Circuit Court of Appeals upheld Doughty’s ruling, issuing a landmark decision: In Missouri v. Biden, the Fifth Circuit ruled that the federal government, under Biden, had likely violated the First Amendment in its censorship crusade.
This week, the Supreme Court heard oral arguments for that very case (now Murthy v. Missouri), entertaining “claims that numerous officials in the Biden administration were engaged in a coordinated pressure campaign, urging social-media platforms to flag, demote, or remove posts that the administration considered ‘misinformation’ about topics such as Covid-19 and vaccines,” Ryan Bangert noted in National Review. The evidence was damning: “Dozens of emails revealed that White House and agency staff demanded that platforms target specific speakers, including Tucker Carlson and Robert F. Kennedy Jr., and certain messages for scrutiny, and threatening consequences if they were not silenced,” Bangert wrote. In a separate article, Brent Skorup lays out the details of the plaintiffs’ case:
The people suing the government, including former Harvard professor Martin Kulldorf, allege that government officials coerced YouTube, Twitter, and other tech companies to remove their online posts and commentary, including criticisms of the government’s Covid-19 policies. The plaintiffs presented damning evidence, including internal government emails and testimony from government officials. They documented federal officials’ immense pressure on social-media companies, including profane emails and vague threats from White House officials to Facebook officials to remove vaccine “disinformation,” as well as messages from the FBI to several social-media companies with spreadsheets of accounts and content that the agency wanted removed. The FBI followed up on its requests at quarterly meetings with companies, keeping internal notes of which companies were complying with FBI demands. Perhaps the messages were innocent — we may never know because the FBI used encrypted communications and has not revealed their contents.
Still, free-speech advocates are steeling themselves for disappointment. From what we can discern from the lines of questioning pursued by many of the justices, “there doesn’t seem to be a [Supreme Court] majority ready to rule against [government] actions to suppress social-media posts & accounts,” legal scholar Ilya Shapiro noted on X. “Across the court’s ideological lines,” added the New York Post, “the justices suggested that the lower courts had overstepped by restricting communications between government officials and the platforms.”
The court would be wrong to forego the chance to strike a blow against the censorship-industrial complex. But the problems implicated in this saga go far beyond the scope of this specific case — and will persist, in some form, regardless of the case’s outcome.
The question at the heart of Murthy v. Missouri is whether the government, specifically, colluded with Big Tech in an unconstitutional manner, and in pursuit of constitutionally prohibited ends. The basis of the Supreme Court’s seeming skepticism is the justices’ belief that the government and Big Tech — the public and the private — exist as distinct, separate spheres. The question that the court believes it is deciding is whether one sphere (the government) behaved in an inappropriate manner in its engagement with the other (Big Tech). “My experience is the United States [government], in all its manifestations, has regular communications with the media to talk about things they don’t like or don’t want to see or complaining about factual inaccuracies,” Judge Kavanaugh remarked during Monday’s oral arguments.
The problem, however, is that the censorship regime transcends public-private distinction, existing in the murky, nebulous area between the two spheres. It is an amalgamation of powerful NGOs, activist groups, government agencies, Silicon Valley companies, cybersecurity firms, and — of course — “expert” consultants, all of which are inextricably linked to one another. (Left-wing NGOs and nonprofits enjoy a consistent stream of federal tax dollars and work hand in glove with the federal government on everything from policing “hate” and “disinformation” to facilitating mass illegal migration).
At the same time, the people involved in these initiatives move effortlessly between the public, private, and intra-public-private spheres. If there is any wall at all between government and private business, it is not one that applies to the business of censorship. As Michael Brendan Dougherty wrote amid last year’s mini-scandal regarding “Hamilton 68” — an “anti-disinformation project” that “aims to foster a consensus among policy intellectuals across Europe and America” — “when members of the ‘intel community’ leave government work, they either work for Silicon Valley or these progressive NGOs.” That was readily apparent in the staffing of the Biden administration. As I noted in 2022:
Powerful tech platforms and progressive political institutions are often run by the same people: “The Biden transition team has already stacked its agency review teams with more tech executives than tech critics,” CNBC reported in December 2020. “It has also added to its staff several officials from Big Tech companies, which emerged as top donors to the campaign.” While the Biden administration has made some Big Tech–focused antitrust overtures, there is nonetheless a well-oiled pipeline between Silicon Valley and the Democratic Party: As Ars Technica reported, a number of high-ranking Obama officials moved to take jobs in tech during the Trump years and transitioned back to the White House when Biden took office. It’s no wonder that 97 percent of donations from employees of Google and Facebook went to Biden’s 2020 campaign.
What we are confronting, then, is not merely a question of “government overreach,” but a distinctive class — a ruling class, in the traditional sense of the word — that is intent on suppressing what remains of this country’s long tradition of freedom of speech. These are not terms that conservatives are used to (or comfortable with) thinking in; they are unlikely to be the terms by which the Supreme Court decides Murthy v. Missouri. But they will have to be the terms by which the Right confronts this challenge, if we hope to confront it at all.
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