TGIF: Trump Fibbed about Favoring Free Speech

Trump fibbed when he signed his first executive order in January, the one that promised never to repeat the Biden-era barriers to free speech. Everyone knows this by now. FIRE (the Foundation for Individual Rights and Expression) summed it up well, yet only scratched the surface: "We cannot be a country where late night talk show hosts serve at the pleasure of the president."

The Maestro dislikes being criticized, and he regularly displays his willingness to use government power to get revenge. We see this with his string of lawsuits against newspapers and networks for being "unfair" and defamatory (Trump apparently hasn't been informed that in 1964 the Supreme Court, in New York Times v. Sullivan, raised the defamation bar for public figures extremely high). It's also clear in his expressed interest in yanking licenses from broadcasters. There is little need to rehearse FCC Chairman Brendan Carr's Don Corleone impression aimed at ABC and affiliates over late-night host Jimmy Kimmel. Carr offended even Sen. Ted Cruz, who's on the red team. Trump has other television talk shows in his sights.

More broadly, Attorney General Pam Bondi, ignorant of the First Amendment and its underlying philosophy, distinguished protected free speech from presumably unprotected "hate speech." The non-rookie made an embarrassing rookie error (U.S. law makes no such distinction), and Trump applauded. She later said (after having it explained to her?) that she meant speech that incites violence. Conservatives ought to tread lightly here. Some Americans think it's hateful and inciteful to say (correctly) that for human beings, sex is binary and unchangeable or that people should be judged according to their talent and not their skin tone, ethnicity, or gonads. Red and blue hypocrisy has been thick throughout this whole controversy. The blue team cheered when Biden violated freedom of speech over social media during the pandemic. Now it's red's turn. Who supports cancel culture now?

Re Kimmel, the pro-Trump narrative is that the preemption by ABC and its affiliates (since partly reversed) was a business response not to government threats, but to upset viewers. Unlikely. Nevertheless, Trump and Carr muddied the waters with the threats. Had they kept quiet, we might have been able to see how bottom-up the preemptions were.

But even then, we couldn't be sure because the government holds life-and-death licensing power over traditional broadcasters, who surely did not need reminding. (Trump has renewed his threats against ABC, which owns some stations, and its affiliates that reinstated Kimmel's show.) Broadcasters are not free in the land of the free to thumb their noses at the FCC or at a president who expects the FCC to do its bidding. Furthermore, the FCC and other regulatory agencies have the power to cast thumbs up or down for company mergers and acquisitions, which means businesses that displease the administration could have their plans destroyed by frowning bureaucrats. That's not capitalism, i.e., free private enterprise.

Traditional television and radio stations are privately owned companies, but they do not own the frequencies over which they broadcast. In contrast, factories and stores sit on private land. We would not regard an economy as capitalist if the government owned all the land and licensed it to businesses in return for promises to serve the public interest as defined by government officials.

But that is precisely how it works with broadcasters. The airwaves are not treated like private resources that were homesteaded by pioneering entrepreneurs who grasped the potential of radio and television. That could have been the case except that one man, about a century ago, kept it from being so: Herbert Hoover, the Republican secretary of commerce before he was elected president in 1928. Hoover gave us the regime under which the government "permits" companies to use "the public's airwaves" in return for the promise to serve the public. Of course, a government commission decides what's in the public interest. Mere consumers acting in the market can't be trusted with such a grave mission. (A former FCC chairman once said that the public interest is not necessarily what interests the public.) The public-ownership theory was always inane. How could the collective that didn't even know the airwaves existed have an equal ownership claim to individuals who saw the potential and did something about it?

That Hoover nationalized the broadcasters' key means of production should be a tip-off that he was not the crusty laissez-faire president the teachers make him out to be. Far from it. He was a "progressive" statist who derailed the common-law, private-property evolution of the airwaves that was underway in the 1920s with court recognition. (On Hoover's "progressive" presidential conduct after the stock market crashed in 1929, see Murray Rothbard's America's Great Depression.)

Here's a question: how does government licensing power square with the First Amendment, which guarantees that "Congress shall make no law ... abridging the freedom of speech, or of the press"? The circle cannot be squared.

A great myth of American history is that nationalizing the airwaves was the only answer to the chaos that was said to be occurring at the dawn of radio. That's false. Economist and historian Thomas W. Hazlett, a long-standing authority on this matter, debunked that myth most recently in "Abolish the FCC," published by Reason last year.

In 1927, mass-market electronic communications had already arisen under the common law rule of "first come, first served" and did not need federal micromanagement. What the new Federal Radio Commission later deemed "five years of orderly development" (1921–26) was disrupted by strategic regulatory dancing that preempted enforcement of such property rights. Sen. Clarence Dill (D–Wash.), author of the 1927 Radio Act, explained that the purpose "from the beginning … was to prevent private ownership of wave lengths or vested rights of any kind in the use of radio transmitting apparatus." [Emphasis added.]

Predictably, the regulatory apparatus did not serve any authentic public interest; that was a fig leaf. Instead, the bureaucrats, among other insults, impeded new technologies as a favor to incumbent interests, to the detriment of consumers and upstart, innovative producers. Hazlett writes:

FM radio, invented in the 1930s, was stymied for decades; cellular telephone networks, designed during World War II, were sandbagged by the spectrum allocation process until the 1980s. Countless other wireless innovations died stillborn.

Besides stifling technology, the FCC has long been used by presidents for political purposes. What would you expect? (On the slippery notion of the public interest, see this.)

Markets serve the public (consumers), and governments don't. As Hazliett puts it, "It's taken too long to grasp the marvel of spectrum markets. Another century for the brainchild of Herbert Hoover seems needlessly inert. Let the invisible hand regulate the invisible resource."

The old media are declining because consumers prefer all of the alternatives that use new technologies. The irony is that while critics of capitalism exploit those alternatives with gusto, they have yet to acknowledge that capitalism is what has made those cheap or free alternatives possible.

Privatizing the airwaves wouldn't stop Trump from interfering with free expression, but it would be a worthwhile first step.

TGIF: Free Speech Restored?

Don't get accustomed to me praising Donald Trump, but exceptions will occur now and then. Trump is no principled friend of liberty, not by a long shot. Judging by most of his actions and words, he recognizes no impenetrable boundary between the government and the private sector, the market economy. We may infer that he sees the central government and the country itself as a company that he runs with few restraints. He seems to imagine himself as the chairman and CEO of the United States, with only a toothlessly subservient board of directors. I need only point to his trade and immigration policies to support this inference. It shows itself in many other ways.

Trump is a collectivist of the nationalist variety. He's a devotee of industrial policy, in which the central government aspires to guide the free-enterprise economy in lots of ways. For him, free-ish enterprise may be permitted when it doesn't conflict with his preferences—but only then. He decides. Put another way, he is an advocate of the corporate state in an earlier sense of the term. It doesn't mean that government does the bidding of large corporations. Rather, it means the nation-state is seen as a single organism with one set of interests. Society is the body (Latin: corpus), and the ruler—Trump—is the head.

But (cautious) credit should be given where it is due. Before that, however, something must be said about how even good things are done. Government by executive order and emergency declaration is ominous. The division of powers and the checks and balances among the three branches have at least the potential to stave off government threats to liberty. Those checks should be strengthened. The Department of Education and USAID, to name just two federal entities, should unquestionably be abolished! But is autocratic decree a good thing? It's certainly satisfying to see employees and supporters of those agencies panic over their closing, but the issue is bigger than that. The next president may undo any pro-liberty decrees and issue new ones inimical to liberty. Precedents matter.  An imperial presidency, one that can amend the Constitution unilaterally, does not serve freedom and the market economy.

Now for the credit. On Jan. 20, 2025, shortly after his inauguration, Trump signed an executive order titled "Restoring Freedom of Speech and Ending Federal Censorship" in response to one of the worst things Joe Biden and his administration did. They had effectively suppressed the speech of Americans by threatening—at least implicitly but in no uncertain terms—private social-media companies if they did not suppress lawful posts about the Covid pandemic and the Hunter Biden laptop. In other words, as a judge put it, Biden set up an Orwellian ministry of truth to crack down on dissent and inconvenient facts. Lawful speech was smeared as disinformation and misinformation, perhaps of foreign origin. Even true statements were to be suppressed, however subtly, if they undermined confidence in the government's objectives. Individuals were maligned.

That is not supposed to happen in a free society, where freedom of speech and press are enshrined in the First Amendment to the Constitution, which theoretically, if not actually, restrains the exercise of government power. The government may not censor; therefore it may not use private firms to do what it may not do. The government's bad conduct was challenged in court, initially successfully, but the Supreme Court eventually ruled against the free-speech advocates, claiming they had no standing. (See Murthy v. Missouri.)

So kudos to Trump for issuing an executive order to prevent such misconduct from happening again. The executive order spoke the truth with its opening words:

The First Amendment to the United States Constitution, an amendment essential to the success of our Republic, enshrines the right of the American people to speak freely in the public square without Government interference.  Over the last 4 years, the previous administration trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.  Under the guise of combatting “misinformation,” “disinformation,” and “malinformation,” the Federal Government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the Government’s preferred narrative about significant matters of public debate.  Government censorship of speech is intolerable in a free society.

The order goes on to declare that it is now the policy to

ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen;

ensure that no taxpayer resources are used to engage in or facilitate any conduct that would unconstitutionally abridge the free speech of any American citizen; and

identify and take appropriate action to correct past misconduct by the Federal Government related to censorship of protected speech.

It then declares that "no Federal department, agency, entity, officer, employee, or agent may act or use any Federal resources in a manner contrary to ... this order."

It also directs that the "Attorney General, in consultation with the heads of executive departments and agencies, shall investigate the activities of the Federal Government over the last 4 years that are inconsistent with the purposes and policies of this order and prepare a report ... with recommendations for appropriate remedial actions to be taken based on the findings of the report."

Why did I give only cautious credit? Here's why: "Media outlets must not cave to Trump’s lawfare." As the Foundation for Individual Rights and Expression (FIRE), put it. "What happens to freedom of the press when the president can bully media outlets he doesn’t like into paying big money to end his meritless lawsuits against them? Buckle up. We’re about to find out." FIRE points with alarm to "Trump’s dictatorial appetite to use lawfare to silence or punish outlets that publish content he doesn’t like." 

This is ominous. With Trump, there will be no rest.

TGIF: Leave TikTok Alone

This is America, last I checked. Surely, the government would not force the sale of a social-media company or ban its app from the Google and Apple stores. Would it?

Well, yes, it would,  could (perhaps), and might. A bill in Congress, backed by the government's nominal chief executive, could become law. The House of Representatives passed it last week by an overwhelming bipartisan majority -- despite valiant efforts by Rep. Thomas Massie,  R-KY, plus a few others -- and it is now before the Senate.

That bill would establish fuzzy criteria defining a "foreign adversary's" alleged influence through a social media platform. It is aimed, for now, at requiring TikTok, used by 170 million mostly younger Americans, to be sold to a government-approved American buyer within a specified period. If not sold, Americans would be forbidden to get the app. I guess the app would have to be disabled for those who have it already.

In other words, TikTok would be banned from America -- you know, just as China's communist government bans or interferes with social media over there. Knowing how the government works, we must presume that the bill's criteria will be applied to other cases later. It certainly would exist as a standing threat to the uncooperative.

The complaint against TikTok is that it's a subsidiary of ByteDance, a widely owned company subject to Chinese government influence or control, although this is disputed by TikTok's CEO, Shou Zi Chew, a Singaporean businessman with substantial roots in -- the United States. But let's assume the worst and see where that leads. After all, the Chinese government is no respecter of individual rights. If the U.S. government is eager to interfere with social media, why not the Chinese government?

TikTok worriers say that China could harvest data on Americans while feeding them self-serving democracy-subverting messages. It has reportedly been caught suppressing unflattering information. Not good, but of course, the U.S. government has done the same thing; a lawsuit about this, Murthy v. Missouri, is now before the Supreme Court. As many critics of the bill have pointed out, the Chinese don't need TikTok to acquire information that users readily give up to other platforms. It's already on the market. Moreover, nobody should expect the news from any one online source to be complete; as one grows, one should learn to consult a variety of sources for a fuller picture.

Matthew Petti of Reason is right: "Competition is the strongest force keeping the internet free. Whenever users find a topic banned on TikTok, they can escape to Twitter or Instagram to discuss the censored content. And when Twitter or Instagram enforce politically motivated censorship on a different topic, users can continue that discussion on TikTok."

Changing ownership or banishing TikTok would create a false sense of security. The problem of myopia would remain.

Moreover, as Matt Taibbi alerts us, the bill would give the executive branch "sweeping powers." He writes: "As written, any 'website, desktop application, mobile application, or augmented or immersive technology application' that is 'determined by the President to present a significant threat to the National Security of the United States' is covered.'"

Taibbi continues: "A 'foreign adversary controlled application,' in other words, can be any company founded or run by someone living at the wrong foreign address, or containing a small minority ownership stake. Or it can be any company run by someone 'subject to the direction' of either of those entities. Or, it’s anything the president says it is. Vague enough?"

By this time, shouldn't we expect the worst from letting legislators write the rules?

But those are not the only reasons for concern. According to Glenn Greenwald, the bill had been floating around for a few years but had not garnered enough support to get through Congress. That changed recently, according to Greenwald, citing articles in the Wall Street Journal, Economist, and Bari Weiss's Free Press. Why? As Greenwald documents, anxiety about TikTok took a quantum leap beginning on Oct. 7, 2023, the day Hamas killed and kidnapped hundreds of Israeli civilians and Israel began retaliating against the people of the Gaza Strip.

What has this got to do with TikTok? you ask. Good question. Israel's defenders in the United States, such as Jonathan Greenblatt of the Anti-Defamation League, are upset that TikTok's young users are being exposed to what he calls anti-Zionist and anti-Semitic disinformation. "It's Al Jazeera on steroids," Greenblatt said on MSNBC. During a leaked phone call, he complained, "We have a TikTok problem," by which he means a generational problem. Younger people -- including younger Jewish people -- are appalled at what Israel's military is doing in Gaza. (To complicate things, it looks like TikTok and Instagram have suppressed pro-Palestinian information.)

Would an American-owned TikTok be easier to control? Experience says yes. Have a look at the Twitter Files, which document how American officials, Chinese-style, pressured social media to censor or suppress dissenting views on important matters such as the COVID-19 response and the 2020 election. A federal judge likened the government's efforts to the Ministry of Truth in Orwell's Nineteen Eighty-Four.

Do we want to become more like China?

A final word. Defenders of free speech should not argue that ill-intentioned disinformation and well-intentioned misinformation from any source can cause no harm, broadly defined. Of course, it can. The proper answer to this legitimate concern is that government-produced "safetyism," placing safety above every other value including freedom, will do more harm than good.

TGIF: Free Speech Affirmed -- Pretty Much

The preliminary injunction against federal censorship of social-media users has survived the Biden administration's appeal. However, it remains on hold until Sept. 22 while the Supreme Court considers the matter.

The latest ruling, 78 pages long, by a panel of Fifth Circuit Court of Appeals judges, affirmed the core of District Judge Terry Doughty's July 4 preliminary order, but the revised order has two big differences. The appellate judges exempted some defendants and narrowed Judge Doughty's list of prohibited actions to just one modified but broad prohibition. We'll have to see how that works out, but the court has certainly admonished Biden officials for censoring Americans' speech by systematically leaning -- sometimes very heavily -- on the social-media companies.

The New Civil Liberties Alliance (NCLA), which represented some of the plaintiffs, commented, "Today’s order should stop that conduct."

Recall that Judge Doughty's ruling in the suit filed by Missouri and Louisiana on behalf of its residents, along with several private individuals, including COVID-19 dissident Drs. Jay Bhattacharya and Martin Kulldorff. Doughty had agreed that the plaintiffs had shown that the federal government, through repeated contacts with social-media personnel, had perpetrated “arguably the most massive attack against free speech in United States history.” He likened the Biden administration's efforts to "an Orwellian Ministry of Truth.”

The upshot of the ruling is that when the government "suggests" to Facebook or X that certain posted material is, well, unhelpful, concerning, or even dangerously misleading, it constitutes implicit censorship in violation of the First Amendment. Why? Because some government officials are in a position to punish (through antitrust action, civil-liability rules, or regulation) uncooperative parties. Therefore, even recommendations or pleas to remove or suppress posts necessarily carry a veiled threat. In the present case, the appellate judges write, the threats were sometimes stark naked.

It is well-established in law that what the government may not do directly -- say, block expression -- it may not do indirectly, such as by pressuring private companies to in effect censor.

The judges' panel recapped the findings:

For the last few years—at least since the 2020 presidential transition—a group of federal officials has been in regular contact with nearly every major American social-media company about the spread of “misinformation” on their platforms. In their concern, those officials—hailing from the White House, the CDC, the FBI, and a few other agencies—urged the platforms to remove disfavored content and accounts from their sites. And, the platforms seemingly complied. They gave the officials access to an expedited reporting system, downgraded or removed flagged posts, and deplatformed users. The platforms also changed their internal policies to capture more flagged content and sent steady reports on their moderation activities to the officials. That went on through the COVID-19 pandemic, the 2022 congressional election, and continues to this day.

Enter this lawsuit. The Plaintiffs—three doctors, a news website, a healthcare activist, and two states—had posts and stories removed or downgraded by the platforms. Their content touched on a host of divisive topics like the COVID-19 lab-leak theory, pandemic lockdowns, vaccine side effects, election fraud, and the Hunter Biden laptop story. The Plaintiffs maintain that although the platforms stifled their speech, the government officials were the ones pulling the strings—they “coerced, threatened, and pressured [the] social-media platforms to censor [them]” through private communications and legal threats.

The judges pointed out in great detail that the "platforms were apparently eager to stay in the officials’ good graces" and did not just wait for suggestions about stifling dissent. That sounds like the Stockholm syndrome. But their efforts to please their overseers weren't always enough: "The officials were often unsatisfied. They continued to press the platforms on the topic of misinformation throughout 2021." A powerful thirst can be hard to quench.

The judges reversed the injunction against three defendants: the National Institute of Allergy and Infectious Diseases (which Anthony Fauci ran until he retired), the State Department, and the Cybersecurity and Infrastructure Security Agency. The judges wrote: "We find the district court erred in enjoining these other officials. Put simply, there was not, at this stage, sufficient evidence to find that it was likely these groups coerced or significantly [encouraged] the platforms."

The White House, the Surgeon General, the CDC, and the FBI continue to be enjoined.

A preliminary injunction, of course, aims at future behavior, which the government unsurprisingly objects to. In rejecting the defendants' appeal, the judges responded refreshingly, "The district court found that the Plaintiffs submitted enough evidence to show that irreparable injury [from First Amendment violations] is likely to occur during the pendency of the litigation."

Put another way, the district and appellate judges do not believe the executive branch when it says in effect, "We didn't do it, and we promise never to do it again."

As for the modification of Judge Doughty's prohibitions, the judges found that his list had too many vague and overlapping items. So it struck down all but one and modified it. The edited version now reads:

Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.

That looks pretty good, doesn't it? We'll see how all this works out in practice. The next move is the Supreme Court's.

 

 

TGIF: Paternalists Cross the Free-Speech Line

Some pundits are puzzled that respectable mainstream Democrats and  "progressives" are no longer free-speech absolutists but rather are enthusiastic defenders of the government's massive effort to squelch expression on the social media platforms. (Glenn Greenwald is one of those puzzled pundits.)

The center-left goes so far as to smear the exposers and critics of government censorship as tin-foil-hatted conspiracy theorists. For example, Matt Taibbi is called a "so-called journalist" for his work on the Twitter Files, despite his award-winning career in investigative reporting. And look how hysterically the center-left reacted to a judge's preliminary injunction against government pressure on social media to suppress dissenting and inconvenient posts.

But why should those pundits be agape? If censorship (by which I mean government suppression of expression) is motivated at least in part by the paternalist desire to protect people from themselves, then I don't see why the censorship arrow would not be in the paternalist's quiver. Any consistent paternalist would believe that the unenlightened public can't be sensible enough to sift "information" from "mis- and disinformation" and read only the "proper" things.

Maybe the paternalists took longer to cross the free-speech line than they might have -- the First Amendment is a powerful taboo in America-- but cross it they now have. Is that so mysterious?

The statement The center-left is paternalist should occasion no controversy. We already knew that. (Of course, it has no monopoly on paternalism, but it is a strong element there.) Government interference with people's freedom to choose in the market is always proposed at least partly to protect them from themselves.

I acknowledge that the line between intending to protect people from themselves and intending to protect them from others can be blurry. Both rationales qualify as paternalistic, and both have been used to limit speech: think of the laws restricting commercial speech. But the former is definitely present.

Classical liberals have rejected that sort of paternalism. John Stuart Mill (not the most hardcore classical liberal) wrote:  "The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant." (On Liberty) That is, the government should not protect people from themselves.

It's not just classical liberals and full libertarians who have criticized paternalism, or nanny statism. We've all heard that "the road to hell is paved with good intentions." We've been told that the words most to be feared are "I'm from the government and I'm here to help you." It's been said that "a government powerful enough to do everything for you is powerful enough to do anything to you." In politics the term do-gooder is an insult.

I admit that the paternalist's defense of invasive government action might be a lie to cover another objective, such as power or unearned financial gain. But I see no reason to doubt that the expression of paternalism is usually sincere. I'm not saying that sincerity is a good defense of paternalism. We might want to despise the paternalist who really means it even more than the liar because as C. S. Lewis wrote:

Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.

Lewis was no libertarian, so here's Lysander Spooner in No Treason: The Constitution of No Authority:

The fact is that the government, like a highwayman, says to a man: Your money, or your life. And many, if not most, taxes are paid under the compulsion of that threat.

The government does not, indeed, waylay a man in a lonely place, spring upon him from the road side, and, holding a pistol to his head, proceed to rifle his pockets. But the robbery is none the less a robbery on that account; and it is far more dastardly and shameful.

The highwayman takes solely upon himself the responsibility, danger, and crime of his own act. He does not pretend that he has any rightful claim to your money, or that he intends to use it for your own benefit. He does not pretend to be anything but a robber. He has not acquired impudence enough to profess to be merely a “protector,” and that he takes men’s money against their will, merely to enable him to “protect” those infatuated travellers, who feel perfectly able to protect themselves, or do not appreciate his peculiar system of protection. He is too sensible a man to make such professions as these. Furthermore, having taken your money, he leaves you, as you wish him to do. He does not persist in following you on the road, against your will; assuming to be your rightful “sovereign,” on account of the “protection” he affords you. He does not keep “protecting” you, by commanding you to bow down and serve him; by requiring you to do this, and forbidding you to do that; by robbing you of more money as often as he finds it for his interest or pleasure to do so; and by branding you as a rebel, a traitor, and an enemy to your country, and shooting you down without mercy, if you dispute his authority, or resist his demands. He is too much of a gentleman to be guilty of such impostures, and insults, and villanies as these. In short, he does not, in addition to robbing you, attempt to make you either his dupe or his slave.

I also acknowledge that honest paternalists are happy to join with (usually tacitly) seekers of unearned income in pressing their policy preferences. Don't forget the "bootleggers and Baptists" phenomenon. That's Bruce Yandle's term for when preachers, for example, team up with moonshiners to make or keep liquor illegal. That doesn't change what the paternalists are up to.

The point is that for a long time American paternalists drew the line at the First Amendment because censorship was such a taboo. Alas, that taboo is gone.

 

 

TGIF: Free Speech Upsets Powers that Be

The Biden administration, along with mainstream politicians and journalists, are really upset that U.S. District Judge Terry A. Doughty has forbidden the executive branch of the central government from communicating with social-media platforms for the purpose of censoring or otherwise suppressing constitutionally protected speech. Judge Doughty's action came in an important free-speech lawsuit filed against the government.

He wrote in an accompanying statement: 

During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.” 

So-called respectable government officials, journalists, and pundits -- the alleged adults in a room -- consider the judge's temporary injunction the worse thing that could possibly happen. The headline in the "progressive" publication The American Prospect screamed in panic: "Trump Judge Effectively Names Himself President." (That "Trump judge," by the way, was confirmed by the Senate 98-0.)

Imagine it: agents from the FBI, the Department of Homeland Security, and other government agencies may not even "suggest" to Facebook, Twitter, etc., that they ought to take down or hide posts that take issue with the government's official line about ... whatever. Of course, when government officials suggest something to a private party, the suggestion may be interpreted as being accompanied by the subtle threat to retaliate legally if the suggestion is ignored. Think of protection racketeer telling a shop owner, "You have a nice place here. It would be a shame if it burned down." Get the picture?

As we know, the government has been doing stuff like this for years, whether the matter was related to the COVID-19 pandemic, the Hunter Biden laptop, the Russia-Ukraine war, Russia's alleged collusive 2016 election tampering, and who knows what else. According to a congressional committee, the FBI apparently even collaborated with Ukrainian intelligence to censor Americans' frowned-on discussion of the Ukraine war on social media.

The posts that government agencies wanted suppressed included not only statements that were perhaps provably wrong  -- incorrect speech per se is constitutionally protected, incidentally -- but also accurate information that the government simply found inconvenient, like posts and links that might make people hesitate to get the COVID-19 vaccine, wear masks, accept totalitarian social lockdowns, or trust that the coronavirus came from a Chinese market rather than a U.S.-funded lab in Wuhan, China.

Let's remember that much of the challenge to the government's take on the pandemic and other matters -- criticism belittled as "tin-foil" conspiracy-mongering -- turned out to be true. Contrary to the government's position, the search for the truth requires the freedom to openly disagree and debate. That search abhors centralization, coercion, and the exclusion of anyone but the politically anointed "experts." The right to free speech is a practical necessity if we are to pursue our well-being. Any step toward the paternalistic centralization of research and control of communication is not only immoral (by whatever standard you like) but also inimical to health, wealth, and other aspects of a fully human way of life.

In other words, as the judge acknowledged, the central government has gone to extraordinary lengths to control what the public can read and say on social media. It's as if free speech were not a pillar of liberal philosophy and tradition -- liberal in the older and best sense of a presumption of individual liberty in all spheres. Further, it's as if the first restriction on government power in the Bill of Rights was not the absolute prohibition on the infringement of free speech and press. It's a well-established principle of American law that the government may not pressure private parties to do what it itself may not constitutionally do. Yet that's exactly what happened -- repeatedly. It's a disgrace. How can the government be trusted? It never could be.

Since the Biden administration, urged on by the power elite and the insecure establishment media, does not like being told that it may not violate our freedom of speech, it asked Judge Doughty to suspend his temporary injunction while the Justice Department appeals it. Judge Doughty said no. So the action moved to the appellate court. The Washington Post said that "The Justice Department’s filing signaled that it could seek the intervention of the Supreme Court, saying that at a minimum, the 5th Circuit should put the order on pause for 10 days to give the nation’s highest court time to consider an application for a stay."

I sense desperation. The judge must have done something right. Remember that the injunction, alas, does not bar all government contact with social-media companies: he listed exceptions for actual criminality and national security. Only interference with constitutionally protected expression was included. I don't remind readers of these exceptions to comfort them -- the government will likely abuse the exceptions. I remind readers only to show that the order contains those exceptions. So what is the government so worried about? It says that the judge's order is hopelessly vague and doesn't address every possible eventuality. The answer is easy: if the choice is between vagueness in restricting government power and violating individual liberty, I know which I prefer. This is supposed to be America, isn't it? Rights precede government.

Good people have enough to be concerned about when it comes to social media restricting their expression. Yes, they are private companies, and it's easy to think of people who are so obnoxious that one wouldn't want to encounter them online.

On the other hand, no one has reason to be confident that Twitter, Facebook, YouTube (Google), etc., will use exercise that right judiciously. That you have a right to do something does not mean you should do it. Can does not imply ought. YouTube reportedly deleted Jordan Peterson's interview with Robert F. Kennedy Jr. because it contains what it regards as -- and well may be -- misinformation about vaccines. Kennedy is challenging Joe Biden for the 2024 Democratic presidential nomination. One need not agree with Kennedy on vaccines (I'm inclined not to) to be uneasy about YouTube's decision. We also can't rule out that YouTube acted in anticipation of the government's disapproval. Government casts a shadow over everything.

We mustn't call on the government to manage social media through antitrust or regulation. We should favor real competition. But we should insist on a prohibition of government action, direct and indirect, to suppress speech on those platforms or anywhere else. Judge Doughty understands that. Let's hope other judges do too.

TGIF: Good News on Free Speech -- for Now

Occasionally, the news makes one cheer. That's the case with a preliminary injunction granted this week (July 4) to stop the federal government from suppressing lawful speech on social media. U.S. District Court Judge Terry A. Doughty took the action in the case of State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al. (which I wrote about last year). The pending lawsuit challenged, among other things, the government's power to cajole, lean on, and otherwise less-than-explicitly compel Twitter, Facebook, and the other platforms to remove or suppress lawful speech that federal authorities deem to be dangerous "disinformation" or "misinformation."

The government's conduct related to posts about the COVID-19 pandemic -- including masks, vaccines, and the possible U.S.-funded/Chinese-lab origin -- figures heavily in the lawsuit. But other reasons for suppression and any future suppression are also in the crosshairs. The idea behind the suit is that under the First Amendment, the government may not do indirectly what it is constitutionally barred from doing directly.

We must understand that the motives for government censorship are irrelevant. Even with the best motives in the world -- say, to safeguard public health during a dangerous pandemic -- the government may not suppress speech directly or threaten to regulate private companies if they don't do the suppressing. This, of course, is exactly what the government did, as we know from the Twitter Files and many other sources.

Of course, as a preliminary injunction, the ban is not permanent. That must await a full airing of the case. Still, it's something to cheer about. A whole slew of federal agencies and officials are ordered not to interfere with social media -- which means with the people who use social media. It doesn't mean that the platforms, which after all are private companies, can't do their own interfering. It just means that for now, government officials can't even raise an eyebrow to signal that lawful posts should be taken down. (The courts have long held that some speech, such as defamation and outright direct incitement to violence, is not protected by the First Amendment. Whether this leaves the government too much leeway is not the issue here.)

Under the judge's temporary order, the agencies and officials "are hereby enjoined and restrained from ... meeting with social-media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms."

But that's not all. The defendants are also prohibited from "specifically flagging content or posts on social-media platforms and/or forwarding such [posts] to social-media companies urging, encouraging, pressuring, or inducing in any manner [emphasis added] for removal, deletion, suppression, or reduction of content containing protected free speech." How about that!

Other forbidden activities name are:

urging, encouraging, pressuring, or inducing in any manner social-media companies to change their guidelines for removing, deleting, suppressing, or reducing content containing protected free speech;

emailing, calling, sending letters, texting, or engaging in any communication of any kind with social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech;

collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group for the purpose of urging, encouraging, pressuring, or inducing in any manner removal, deletion, suppression, or reduction of content posted with social-media companies containing protected free speech;

threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech;

taking any action such as urging, encouraging, pressuring, or inducing in any manner social-media companies to remove, delete, suppress, or reduce posted content protected by the Free Speech Clause of the First Amendment to the United States Constitution;

following up with social-media companies to determine whether the social-media companies removed, deleted, suppressed, or reduced previous social-media postings containing protected free speech;

requesting content reports from social-media companies detailing actions taken to remove, delete, suppress, or reduce content containing protected free speech; and

notifying social-media companies to Be on The Lookout (“BOLO”) for postings containing protected free speech.

The judge also made clear what he was not forbidding the government from doing. This includes telling the social-media companies about criminal activity and national security threats, "exercising permissible public government speech promoting government policies or views on matters of public concern," and "communicating with social-media companies about deleting, removing, suppressing, or reducing posts on social-media platforms that are not protected free speech by the Free Speech Clause in the First Amendment to the United States Constitution."

Whether the government will use the exceptions to get around the injunction remains to be seen. Some worry it will, and given what we know about government officials, who would be surprised? Vigilance is the price of liberty. Nevertheless, supporters of paternalistic government suppression of free speech, including establishment reporters (!) and pundits, are alarmed by the broad scope of the preliminary injunction. (On the concerns that the injunction is both too broad and too narrow, see this.)

The injunction, wrote the judge, "shall remain in effect pending the final resolution of this case or until further orders issue from this Court, the United States Court of Appeals for the Fifth Circuit, or the Supreme Court of the United States." The plaintiffs only ask the court to declare that the defendants broke the law by interfering with free speech and to forbid government officials from doing it again.

Alas, the U.S. government today can do almost anything it wants. Fortunately, a few things still stand in the way, as some recent Supreme Court rulings have demonstrated. The First Amendment is one of those things. But how long will it remain that way?

TGIF: How the State Violated Free Speech during the Pandemic

Is anyone shocked by this observation?

Public statements, emails, and recent publicly released documents establish that the President of the United States and other senior officials in the Biden Administration violated the First Amendment by directing social-media companies to censor viewpoints that conflict with the government’s messaging on Covid-19....

This insidious censorship was the direct result of the federal government’s ongoing campaign to silence those who voice perspectives that deviate from those of the Biden Administration. Government officials’ public threats to punish social media companies that did not do their bidding demonstrate this linkage, as do emails from the Centers for Disease Control and Prevention (CDC) and the Department of Homeland Security (DHS) to social media companies that only recently were made public.

So states the New Civil Liberties Alliance (NCLA) in announcing its lawsuit against President Joe Biden, former chief medical adviser Anthony Fauci, and other government public-health officials,  departments, and spokesmen. The case now before a federal district court in Louisiana is called State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al. No social-media company was named as a defendant. Rather, the suit is about the government's illegal and unconstitutional conduct. (See the complaint for the eye-opening details.) In fact, the complaint states: "Notably ... prior to Defendants’ campaign of threats and pressure, social-media platforms generally declined to engage in the acts of censorship alleged herein." 

The plaintiffs are the states of Missouri and Louisiana and several health care experts, including Dr. Jay Bhattacharya of Stanford University (among other prestigious affiliations) and Dr. Martin Kuldorff of Harvard University, two of the three authors of the Great Barrington Declaration, published in October 2020 and signed by thousands of medical professionals. The Declaration challenged the government-led strategy of shutting down American society through a variety of mandates as though everyone -- young and old, healthy and ill -- were equally vulnerable to the dangers of COVID-19. The government's data on who was suffering serious, possibly lethal illness and requiring hospitalization contradicted that baseless premise early in the pandemic.

The Declaration, which today has signatures from more than 62,000 scientists and health care professionals (and 932,000 signatures overall) called instead for "focused protection" of the elderly and those with already-compromised immune systems. Otherwise, Americans should be left free to live normal lives. The shutdown of society, this view holds, would inflict untold harm in regard to health (because of deferred medical examinations/treatments), psychological well-being, children's education, and lost income. All of this and more have now been documented. "Focused protection," it must be emphasized, was not a radical position in 2020. Rather, it had been the mainstream approach to pandemics for the previous 100 years.

Unfortunately, the authors, who also included Dr. Sunetra Gupta of Oxford University, were smeared by government officials and spokesmen as fringe characters who could be safely ignored. At the same time, the national government pressured social media to suppress challenges to its message and policies. In other words, the government did everything it could short of direct censorship to keep the American people from knowing that eminently qualified doctors and other scientists disagreed with the party line.

Under the U.S. Constitution and case law, the government is not only barred from directly interfering with speech on the basis of content, but it is also prohibited from inducing or coercing private entities, such as social networks, to do so. The Supreme Court has spoken on this.

The plaintiffs contend that this is precisely what the defendants did during the pandemic through "express and implied threats" against the social networks, including the threat of antitrust action and the threat to withdraw the protection provided by Section 230 of the Communications Decency Act, which immunizes the platforms from liability for what participants post. 

NCLA says:

Government-induced censorship is achieved through a wide variety of mechanisms, ranging from complete bans, temporary bans, “shadow bans” (where often neither the user nor his audience is notified of the suppression of speech), deboosting, de-platforming, de-monetizing, restricting access to content, requiring users to take down content, and imposing warning labels that require click-through to access content, among others. These methods also include temporary and permanent suspensions of disfavored speakers.

This sort of censorship, which strikes at the heart of what the First Amendment to the U.S. Constitution was designed to protect—free speech, especially political speech—constitutes unlawful government action. The federal government is deciding whose voices and ideas may be heard, and whose voices and ideas must be silenced. Moreover, this state action deprives Americans of their right to hear the views of those who are being silenced, a First Amendment corollary of the right to free speech.

The lawsuit seeks no monetary damages, but it asks the court to declare that the plaintiffs acted illegally. It also asks the court to

Preliminarily and permanently enjoin Defendants, their officers, officials, agents, servants, employees, attorneys, and all persons acting in concert or participation with them, from taking any steps to demand, urge, pressure, or otherwise induce any social-media platform to censor, suppress, de-platform, suspend, shadow-ban, de-boost, restrict access to content, or take any other adverse action against any speaker, content or viewpoint expressed on social media.

Going further, we must demand an end to the government-university-science complex, which puts a heavy political thumb on the scale of scientific debate without which the truth cannot be ascertained. As the complaint states, "Yesterday’s 'misinformation' often becomes today’s viable theory and tomorrow’s established fact.... This prediction has proven true, again and again, when it comes to suppressing 'misinformation' and 'disinformation' on social media." (The complaint notes other examples of similar reversals despite official government efforts, including the Hunter Biden laptop story and the Wuhan lab-leak theory of the coronavirus's origins. These once-belittled accounts either have been confirmed, as with the laptop story, or have achieved reasonable credibility if not confirmation, as with the lab-leak theory.)

Government officials must not be permitted to suppress, directly or indirectly, public-health and other sorts of claims they disagree with. Officials of course can say what they believe are the facts, but they must not attempt to smear, marginalize, and silence dissenters. The very act of financing scientific research is prejudicial because of the stamp of exclusive legitimacy it implies. As the pandemic illustrates, a truly free marketplace of ideas is literally a matter of life and death.

TGIF: Why Can't You Shout "Fire!" in the Virtual Public Square?

Almost 10 years ago the free-speech champion Trevor Timm, with the Electronic Frontier Foundation at the time and now with the Free of the Press Foundation, implored readers "to stop using the ‘fire in a crowded theater’ quote" to justify limits on free expression. Many people apparently need a reminder.

Timm wrote, "[Supreme Court Justice Oliver Wendell] Holmes [Jr.'s]' quote has become a crutch for every censor in America, yet the quote is wildly misunderstood." To dispel the misunderstanding, Timm told the story behind the quotation.

The Court opinion containing the quote is from Schenck v. United States (1919), a notorious anti-free-speech case in which Charles Schenck and Elizabeth Baer had been convicted and sentenced to six months in prison during World War I under the federal Espionage Act for mailing 15,000 pamphlets urging soon-to-be-drafted men "not [to] submit to intimidation" and to "Assert your rights." The pamphlet did not advocate violent resistance but stated that the draft violated the 13th Amendment, which bans slavery.

The Court ruled unanimously against the defendants on the grounds that distributing the material was a "clear and present danger" during wartime. Holmes noted that the pamphlet would have been constitutionally protected in peacetime, but in 1917 the rules were different. To emphasize the point, Holmes wrote, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

Schenck stood as a precedent until 1969, when it was overturned in Brandenburg v. Ohio. Nevertheless, Holmes's trope is wheeled out today against almost anyone who expresses concern about the limitations on the free exchange of ideas on social networks, especially when the controversy concerns criticism of any aspect of "wokeism," for example, the ideologies underpinning "anti-racism" and "trans-genderism." If someone publicly expresses uneasiness at people being suspended from or kicked off social-media platforms for innocuous posts that come nowhere near threatening or inciting violence, the other side will likely quote Holmes to justify the punishment.

It should be too obvious to have to point out that Holmes's dictum is irrelevant to such episodes. Before we get to that, however, let's put on this on the record: although they may be under great government pressure to crack down on certain real or alleged misinformation and disinformation, the social-media platforms are private companies with the right to set their terms of use. But that does not mean having a low bar for expulsion is a good policy. Social networking, to the extent it is to have political value, ought to be an open forum. Kicking people off even for lying about election results or (justifiably) criticizing rules about permissible pronouns is not only obnoxious; it also makes a mockery of what the platforms themselves say they aspire to be.

With that out of the way, we can move on to the main course. None of the targets to which Holmes's trope is aimed bears any resemblance to the literal case of falsely shouting fire in a theater. We can break this down into two parts.

The first concerns the unreasonable shouting of anything, even "Chocolate!" in a theater, crowded or not. If I buy a ticket to a concert, play, or movie, I have at least an implicit contract with the theater owner that I will not disrupt the show (without a darn good reason) and spoil it for the other patrons. If that contractual term were not assumed, the owner would be defrauding all the customers. Would you buy a ticket to a show knowing that anyone in the audience was permitted to make noise?

Just as I cannot eat in a restaurant and refuse to pay by claiming that I never explicitly agreed to pay for the meal, so I cannot make a ruckus in a theater on grounds that I never agreed not to do so. We can go further and point out, as Murray Rothbard did, that even the theater owner may not unreasonably disrupt the show without violating the contract with his customers:  If he does, "He has thus welshed on this contractual obligation, in violation of the property rights of his patrons."

Rothbard's point is that freedom of speech is not some free-floating right. To make sense it must be rooted in property rights. No one has a right to make a speech in your living room without an invitation. The corollary, he points out, is that so-called public, that is, government-controlled, land presents insoluble conflicts. When demonstrators want to block a busy street during rush hour, whose rights should prevail: theirs or the drivers'.

As I say, this goes for any shouting. But let's move on to the issue of content. Falsely shouting fire adds potential injury or death to the insult because the patrons do not have the luxury of checking out the shouter's claim. Maybe it's a false alarm, but waiting to find out could cost them their lives. Obviously, if the shouter knows the place is on fire, he's done his fellow patrons a favor.

How does this relate to social media? Nothing anyone can say on Twitter can compare to the potentially deadly disruption that would occur with a false shouting of fire in a theater. Even if Donald Trump tweets a million times a day -- falsely -- that his landslide reelection in 2020 was stolen from him, the mechanism for harm just is not present. No one reading Trump's tweets, as obnoxious as they would be, would have to rush out of wherever he is merely to save his life and possibly endanger others as he does so. It's simply ridiculous to compare the two situations.

A tweet might offend people -- if they choose to take offense -- or it might hurt someone's feelings. But let's get real: that bears no resemblance to endangerment. But what if someone else reads the tweet and then feels motivated to commit violence? That person is an aggressor who is fully responsible for his actions. He must not be permitted to plead that the tweet caused or incited him to commit violence. He is an agent.

Rigid controls on social media cannot be justified on "clear and present danger" grounds. In other words, it's impossible to shout "Fire!" on social media, and we are justified in criticizing platform owners who insist on punishing their guests for what they say. It's easy enough to avoid your fellow guests whom you find obnoxious.

So let's finally put Holmes's trope to rest. It has no power to justify restrictions on expression that does not directly and immediately endanger others.

TGIF: Parents Should Govern Their Kids' Education

How clear are these opening words of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”?

Judging by the U.S. Supreme Court's many ventures into this area, we'd have to say not very clear at all. There's a lesson in that. Constitutions don't interpret themselves. People do, and the line between interpreting and making law is not as bright as we're told.

The latest Court decision in the matter, Carson v. Makin, is instructive in that regard. The 6-3 decision -- Republican appointees made up the majority, Democratic appointees the minority -- struck down Maine's exclusion of religious schools from a program that provides tax-funded tuition assistance to all parents who live in school districts that do not provide "free, public" secondary education. That's over half the districts. Maine, according to the Court, is the most rural state in the country. Who knew?

Under the program, those parents can spend the money at another district's school or at an academically accredited "nonsectarian" private school. The plaintiffs, two families, argued that this restriction violates both the Free-exercise clause and the establishment clause of the First Amendment, along with the Equal Protection Clause of the Fourteenth Amendment. The U.S. district and appellate courts had sided with the state.

The six justices of the majority held that the exclusion of sectarian schools violated the guarantee of the free exercise of religion despite the fact that religion permeated the regular curriculum. (Remember, these were state-approved schools academically.) But the minority justices said the exclusion violated the prohibition on the establishment of religion because the money would go to schools that used it to teach their particular faiths. It was establishment clause v. free-exercise clause.

So who is right? Can that question be answered? Chief Justice John Roberts's majority opinion and the dissenting opinions by retiring Justice Stephen Breyer and Justice Sonia Sotomayor point to many Court precedents that seem to support their conflicting positions. But the precedents aren't much help because one can always say that an earlier case differed in an important way from the current one.

Leaving aside one's background philosophy, all of the arguments seem plausible and consistent with the constitutional text. One might appeal to historical materials, but my hunch is you can find disagreements there too. There's a lesson in all this, one captured by legal scholar John Hasnas in "The Myth of the Rule of Law." (A discussion of Hasnas's paper is here.)

Hasnas's point is that considering how statutes and constitutions are written and the contradictory case law, judges and lawyers can start at Point A and reach virtually whatever destination they wish. Each individual's compass will be ideological. This, Hasnas insists, is not the notion of the rule of law taught in grade school or law school, but the rule of men and women. He writes:

The fact is that there is no such thing as a government of law and not people. The law is an amalgam of contradictory rules and counter-rules expressed in inherently vague language that can yield a legitimate legal argument for any desired conclusion. For this reason, as long as the law remains a state monopoly, it will always reflect the political ideology of those invested with decisionmaking power. [Emphasis added. Hasnas favors judicial competition, or polycentric law.]

So what are we to make of the ruling? I'll cut to the chase before doubling back. Consistent with Hasnas's thesis, both the majority and the minority think its path is consistent with a desired religious neutrality. The majority holds that neutrality lies in not excluding religious schools from Maine's program because all eligible parents would be treated the same, while the minority holds that neutrality requires excluding religious schools.

Truth be told, I prefer the ruling to the Court's alternative, but let's get clear on some preliminaries first. The root of the conflict that produced this case is government schooling itself. Ironically, the early government-school movement presented the misnamed "public school" as the way to prevent conflict over religion. How's that worked out, Horace Mann? (See my book Separating School and State: How to Liberate America's Families.)

Simply put, any government involvement in education infringes the liberty not only of parents but also of nonparent taxpayers, who are forced to support the government's schools. And let's be specific: government involvement violates freedom of conscience and not just material property rights. Even before the dawn of wokeness, many taxpayers disliked how the government schools taught even unobjectionable subjects.

The case against government schooling is bolstered by the well-known fact that coercive monopolies are inherently bad deals. They deliver poor quality at unnecessarily high prices. As bureaucratic organizations, they are interested in preserving their perks rather than serving their ostensible "customers."

So it's no coincidence that the government's schools are rotten; the more marginalized the community, the more rotten they are. This is a disgrace because the education establishment has sabotaged poorer people, many of whom suffer the legacy of long-standing official injustices, and kept them from ensuring better lives for their children. If you want to understand intergenerational poverty and cultural shortcomings, think "public schools."

What we should strive for, then, is parental free choice in a competitive education marketplace. Competition is the universal solvent. (James Tooley and Pauline Dixon, among others, have demolished the claim that poorer people would be worse off in a free education market.)

As more people have come to understand the benefits of free choice, they have proposed steps by which parents could take their kids out of the rotten system. Unfortunately but understandably, reformers have supported incremental changes that still left the state and local governments with a huge amount of power over schooling. I say "understandably" because a proposal to replace government schooling with a free and competitive marketplace (which would include nonprofit institutions) is a hard sell in the current context, although it may be getting easier. One objection to the incremental approach, besides continued government compulsion, is that the radical approach would be shelved in favor of the more-attainable program.

At any rate, various programs -- vouchers, tuition tax credits, third-party scholarship tax credits -- were set up to help parents escape to some extent the clutches of the school bureaucracy. The Maine program was different because it was only for children living in school districts without secondary schools. In effect, the state told parents they could take the money that would have been spent on a local high school and use it at the accredited school of their choice. The only restriction aside from its being state-accredited was that it be nonsectarian. That seems unfair to religious parents, who regard their religious faith as integral to their education even in secular subjects. Why should they be taxed to support a system they disapprove of?

That's why I prefer the ruling to what the dissenters wanted. They think that allowing parents to buy education from schools that will "use public money for religious purposes" violates the establishment clause. That strikes me as the weaker argument. How does letting parents have that choice "establish" religion? Maine did not set up a state church.

It all depends on how one interprets that clause. (This problem plagues the Constitution. See my America's Counter-Revolution: The Constitution Revisited.) In his dissent Breyer says there is "play in the joints" between the establishment and free-exercise clauses, leaving "wiggle room" in which states can "navigate the tension created by the Clauses and consider their own interests in light of the Clauses’ competing prohibitions." Loose joints and wiggle room hardly provide good guides for legislative dos and don'ts. Roberts counters that a "State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise." I think that makes more sense.

Breyer writes, "Maine thus excludes schools from its tuition program not because of the schools’ religious character but because the schools will use the funds to teach and promote religious ideals." That supposed distinction enables him to embrace earlier decisions that permitted tax money for religiously affiliated institutions, but is that distinction meaningful? Can there really be a church-affiliated school that does not promote its faith to the pupils? The state legislature thought so and in theory permitted parents to spend the money on the former sort but not the latter sort. That sounds more like a word game to protect its statute from court scrutiny. The Court majority didn't buy it.

My arguments here assume the existing political context, which of course I want to see changed. As long as state schools, state curriculum requirements, and compulsory attendance exist, fairness requires that parents -- who pay income taxes, sales taxes, and property taxes one way or another -- be free to direct the money to the schools of their choice. "School choice" is a pale substitute for real freedom, and it will always come with unjustifiable conditions, but it still may provide children an exit from intolerable situations.

If we must err, let's err on the side of the parents' freedom of choice. Let's face it: the taxpayers would be coerced to support something they disapprove of no matter the outcome of this case, a point overlooked by the dissenters, who are concerned only when people are forced to support religion.

Let's also push, then, for a wider freedom of choice. No one should be forced to finance schools (or anything else for that matter). Taxation taints everything. The right to choose is far more radical than most people think.

In sum, it is entirely reasonable to disagree with Justice Sotomayor, who wrote in her own dissenting opinion that the majority in this case "continues to dismantle the wall of separation between church and state that the Framers fought to build." The First Amendment doesn't mandate a "wall of separation." (Jefferson most famously used this metaphor in a letter.) Rather, it seems to say only that Congress may neither establish religion (as, say, in England) nor interfere with anyone's free exercise thereof. The Court long ago applied this and other applicable provisions of the Bill of Rights to the states via the 14th Amendment. (The establishment clause originally also meant that Congress couldn't interfere with the established churches in individual states at the time.)

It's hard to see how Maine has either established religion or interfered with its free exercise merely by "giving money to parents" (Sotomayor's words) that they can freely spend on schooling. Contrary to Sotomayor, the ruling does not "require[] States in many circumstances to subsidize religious indoctrination with taxpayer dollars" because Maine did not have to set up a tuition-assistance program. The ruling simply says, echoing an earlier case, that if a state does so, it cannot forbid parents from choosing schools that mix religion with their regular curriculums. In other words, all it does is let parents spend the money that would otherwise have gone to a government school at the accredited schools of their choice.

Sotomayor also writes: "If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens." I ask: so what's wrong with that? Government has no business subsidizing people. If it wants them to have more money, cut and abolish taxes.

Price-Gouging Laws Violate the First Amendment

Laws against so-called price gouging -- that is, price spikes during emergencies -- violate our natural right to engage in voluntary exchange at mutually acceptable terms. As economics has long taught, price ceilings that defy market forces make the affected goods vanish from the market. Instead of a product being available at a price more-than-X, it is instead unavailable at a price less-than-X. Small comfort for the consumer. (Try to find masks and hand sanitizer on ebay or at the supermarket.)

Here's another way to look at those laws: they violate freedom of speech (expression) and hence the First Amendment. Civil libertarians should be up in arms.

How can those laws violate the First Amendment? It is rather simple. The market's price system is a communications process, a means of expression. In the market, people's demonstrated preferences with respect to scarce resources are translated into highly usable information in the form of prices. Typically, when the quantity demanded for something rises, so does the price tend to rise. (Other things equal, as the economists say.) And vice versa. Adam Smith explained this beautifully in The Wealth of Nations. (See my article "The Market Is a Beautiful Thing.") Through the price system consumers (without realizing it) tell producers what to produce and in what quantity. And producers use it to tell us when we need to economize (that is, buy the product only for our subjectively most important purposes, leaving some for others). This is important because we live in a world of scarcity. To produce more of good A, we might need to produce less of good B. If we want the market to be sensitive to consumers' priorities, we'll want the price system to be free of political and bureaucratic molestation. It's as simple as that.

It follows, then, that if price controls -- such as law against so-called gouging -- are enforced, our voices are muffled if not silenced. That violates our freedom of expression and thus the First Amendment. When the price of hand sanitizer is bid up during a pandemic, the higher price is like a broadcast summoning producers to bring more product to the market. Laws against price spikes are like the gagging of consumers. It's true that empty shelves are also a form of communication, but unfortunately, price controls also remove the incentive for people to produce more of the goods that are suddenly in short supply. Prices are the irreplaceable tool of economic calculation, as Ludwig von Mises spelled out a century ago in his case against central planning.

No good comes from stifling the market -- that is, from interfering with peaceful cooperation.

TGIF: The Church of America

One myth that Americans live by is the separation of church and state. Some like the idea; others hate it; but the irony is that church and state were not separated at the founding of the United States and are not separate now. In fact, they were united in the sense that the state is a church — the Church of America — and you can’t separate a thing from itself. The religion this church administers is not Catholicism, Protestantism, Judaism, Islam, or anything else that comes to mind when most people think the word religion. It’s Americanism, a species of nationalism. Nationalism and religion are cut from the same cloth.

Read TGIF at The Libertarian Institute.

TGIF (The Goal Is Freedom) appears on Fridays. Sheldon Richman, author of America's Counter-Revolution: The Constitution Revisited, keeps the blog Free Association and is executive editor of The Libertarian Institute. He is also a senior fellow and chair of the trustees of the Center for a Stateless Society and a contributing editor at Antiwar.com.

Become a Free Association patron today!

The Biggest Gaffe at the White House Correspondents' Dinner

During his monologue At the White House Correspondents' Dinner, comedian Hasan Minhaj criticized Donald Trump for not understanding the First Amendment -- and in doing so, showed he -- Minhaj -- does not understand the First Amendment. He said:

“The man who tweets everything the enters his head, refuses to acknowledge the amendment that allows him to do it.”

No, the amendment does not allow him or us to do anything. In theory it does nothing more than recognize a natural right to freedom that exists independent of the Constitution and of the state.

I've yet to hear that anyone in the media, which so reveres the First Amendment, corrected Minjah.

TGIF: Contraception: Insuring the Uninsurable

Insurance arose as a way for individuals to pool their risk of some low-probability/high-cost misfortune befalling them. It shouldn’t be necessary to point this out, but coming of child-bearing age and choosing to use contraception is not an insurable event. It’s a volitional act. It may have good consequences for the person taking the action and society at large, but it is still a volitional act. It makes no sense to talk about insuring against the eventuality that a particular person will use contraception. Strictly speaking, contraception has nothing to do with insurance.

Read TGIF here.

Holy Cow!

Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.

--Solicitor General Elena Kagan,
Argument in U.S. v. Stevens
Obama nominee for U.S. Supreme Court.

(HT: Matt Welch)