How Trump Can Combat Censorship
Nov 14, 2024The Wall Street Journal first published this opinion piece.
Donald Trump has a historic opportunity to combat censorship by federal bureaucrats. In recent years, officials from the Centers for Disease Control and Prevention have flagged Covid-19 “misinformation” for social-media companies to remove. The Federal Bureau of Investigation colluded with tech platforms to suppress the Hunter Biden laptop story before the 2020 election. Mr. Trump himself was all but banned from social media at the end of his first term. No wonder he’s promised to tackle this issue on taking office.
Here’s what Mr. Trump should do. On day one, he should issue an executive order dictating that if federal employees encourage private companies to censor users’ First Amendment-protected activities, they must report these requests to the Office of Management and Budget. The OMB would then be required to publish these reports online, redacting information as necessary. This is well within Mr. Trump’s inherent and statutory authority as president, and it would allow the public to see for themselves whether and how the government is interfering with speech rights.
This requirement should extend beyond social-media companies to other private service providers, like banks and credit-card companies. The Obama administration’s Operation Choke Point—which pressured banks to terminate relationships with firearms dealers and other disfavored businesses—demonstrates how bureaucrats can compel many private entities to deplatform people or groups expressing unpopular views.
So why not simply ban bureaucrats from pressuring businesses to suppress speech? Because there are a variety of circumstances in which officials might reasonably encourage private companies to remove content. An FBI agent might request that a newspaper hold off reporting certain details of a crime that could undermine an investigation. If Iran were inundating social media with fake accounts, there would be nothing wrong with federal officials’ letting Facebook know. Officials and agencies can also express disagreement with claims made on social media, such as by warning against ingesting laundry pods.
A transparency-based approach targets true government censorship without triggering these externalities. As a 2024 report from the Foundation for Individual Rights and Expression explains, transparency would “enable the public to know when the federal government is communicating with social media companies and what it’s communicating about,” which “would help prevent overreach and empower Americans to challenge it when it occurs.” The risks are minimal: Even if the definition of the conduct subject to a reporting requirement is overbroad, nothing is actually being prohibited.
This approach has been proved to deter improper censorship. When the public learned in 2022 of the Homeland Security Department’s proposed Disinformation Governance Board—tasked with combating online speech supposedly presenting national-security threats—the outcry was swift. The proposal was scrapped within a month. As Justice Louis Brandeis observed, sunlight is the best disinfectant.
There may not be much of interest to disclose during a Trump administration. Trump ally and free-speech warrior Elon Musk has vowed to dismantle the government-censorship complex. But transparency requirements would undercut progressives’ inevitable claims that Mr. Trump is targeting them for censorship. It would also serve as a trial run for a policy that ultimately ought to be enshrined in statute.
Democrats heralded Mr. Trump’s victory as a disaster for the First Amendment, but in recent years the most dangerous assault on free speech has come from the left. For all the progressive blustering, Mr. Trump may go down in history as the president who stood up to the federal censors and won.
Mr. Grossman is a senior legal fellow at the Buckeye Institute. Ms. Shapiro is a senior fellow at the Independent Women’s Forum. Both practice appellate and constitutional law in Washington, D.C. This article is adapted from a study for the Cato Institute.