Here’s how Congress can help stop backdoor government censorship 

Leading up to the 2020 election, FBI officials flagged tweets and emailed them to Twitter employees for potential removal. What caught their eye? One user tweeted that she was a ballot counter and proclaimed that for “every negative comment on this post, I’m adding another vote for democrats.” Another wrote, “Americans, Vote today. Democrats you vote Wednesday 9th.”  

These were just two absurd examples of the many closed-door interactions between federal officials and Twitter employees that spanned two presidential administrations. They’re also among the few we know about only because Elon Musk released the “Twitter Files” to a small group of journalists.  

These documents revealed that federal officials weren’t only sending emails; as of 2022, they were also meeting regularly with Twitter employees. Government officials followed a similar playbook with Facebook employees, urging them to block, delete, downgrade and deplatform users and posts.  

The American people shouldn’t have to rely solely on leaks and private companies publicizing government censorship requests to bring these threats to free expression to light. Congress must instead pass legislation mandating that government agencies publicly report any content moderation request made to social media companies. 

Recent polling — conducted by Ipsos and the organization I work for, the Foundation for Individual Rights and Expression (FIRE) — demonstrates the American public doesn’t trust the government to regulate social media content. Only 20 percent of those surveyed indicated at least some level of trust in the government to make fair decisions about what information is allowed to be posted on social media platforms. Even worse, 52 percent of Democrats and 79 percent of Republicans surveyed showed distrust.  

The First Amendment prohibits government censorship of speech on social media in all but a few narrowly defined cases. But rather than censoring speech directly, officials discreetly contacted social media employees at Facebook and Twitter to get them to do their dirty work. And although this pernicious form of informal pressure, known as “jawboning,” went public, the damage was already done.  

The Biden administration’s actions rightfully ended up in federal court. The Supreme Court — in a case called Murthy v. Missouri — may soon decide when government officials’ actions cross the line from permissible persuasion to unconstitutional coercion or excessive entanglement in private editorial judgment. And while we believe the court must establish clear criteria for identifying this form of censorship, one lingering concern remains: Even with a favorable decision, the public will still be none the wiser to those occasions in which jawboning might occur. After all, we learned what government officials had done only months or years after the fact.  

So, what do we do? How do we challenge backstage censorship we don’t know about?  

No matter who you vote for or what you believe, Americans should be able to agree on this: When government officials pressure social media companies to censor users’ speech, we should know about it. Federal employees and contractors should have to publicly disclose any content moderation requests made to social media platforms. And FIRE has unveiled model legislation to do just that. 

This legislation will enable the public to know when the federal government is communicating with social media companies — and what it’s communicating about — within 72 hours. Not only would this help prevent overreach, but it would also empower Americans to challenge censorship the moment they see it has occurred. The bill’s requirements would also shine much-needed light on which social media companies government employees are contacting. 

For years, social media users wondered if there was a censor behind the scenes manipulating what their followers could and couldn’t see. What sounded paranoid at the time ended up being true. To restore trust in social media and preserve Americans’ free speech rights online, Congress must require government employees to be palms up about communications with the platforms where America’s national conversations occur.   

It’s time for Congress to force these secret conversations into the light and protect Americans’ free speech rights from backdoor government censorship.  

John Coleman is a legislative counsel at the Foundation for Individual Rights and Expression (FIRE). 

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