President Donald Trump has issued a slew of executive orders (EOs) in his first week back in office. But one that caught my attention was the EO titled “Restoring Freedom of Speech and Ending Federal Censorship.”
The EO places limits on what federal officials in the executive branch can do in relation to speech, including ensuring “no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen,” and “no taxpayer resources are used to engage in or facilitate any conduct that would unconstitutionally abridge the free speech of any American citizen.” The EO also seeks to “identify and take appropriate action to correct past misconduct by the Federal Government related to censorship of protected speech.”
This EO has the potential to help restore the marketplace of ideas by freeing certain intermediaries from at least some backdoor pressure campaigns by the federal government to limit speech. While the EO is primarily focused on social-media censorship—with the Biden administration’s efforts to combat online “misinformation” clearly in mind—the order could plausibly also apply to the kinds of viewpoint-based debanking that has resulted from government pressure campaigns, as well. Below, both types of backdoor censorship will be considered.
Social-Media Censorship
The EO states:
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.
A lawsuit challenging this activity made it all the way to the U.S. Supreme Court in Murthy v. Missouri. As I have previously noted, the Court’s decision, in the end, came down to the question standing. The opinion found that there were no “specific causation findings with respect to any discrete instance of content moderation.” They reasoned that since “the platforms had independent incentives to moderate content and often exercised their own judgment,” the plaintiffs did not sufficiently show that government action caused any particular moderation decision.
This ended up severely limiting who can challenge backdoor-censorship activities. As I put it previously:
Those who have their speech suppressed online will likely not know if it is the independent work of social-media companies or due to government efforts unless some rare event like the “Twitter Files” happens, and the social-media companies let them know. So a lot of backdoor censorship could continue without any court review.
The EO could be an important step toward restoring the marketplace of ideas online, given that we now have greater knowledge of the extent of federal pressure that was placed on social-media companies to restrict First Amendment-protected speech in the name of combating online misinformation. With the recent comments of Mark Zuckerberg and the changes at Meta, there appears to be increasing recognition of the problem. If courts are unable to reach the problem practically, it is incumbent on the executive branch to limit itself.
Viewpoint-Based Debanking
Complaints about Operation Chokepoint 2.0 have mostly centered on federal regulators using a combination of formal and informal means to pressure banks into dropping (or debanking) crypto-friendly exchanges and their customers. But another form of debanking are those cases that appear to be based on viewpoint.
For instance, the Alliance Defending Freedom has kept a running list of individuals who have reportedly been debanked for ideological reasons. While it isn’t always clear why, some banks have stated it is due to reputational concerns and increased risk to continue to do business with them.
While it is true that private entities like banks should be free to take on or reject customers, the government shouldn’t use backdoor means to pressure them to no longer serve disfavored speakers. My colleague R.J. Lehmann and I wrote about one of the more egregious examples last year, in a case where New York State’s superintendent of financial services struck settlements with insurers and insurance brokers that required they no longer do business with the National Rifle Association.
Know-your-customer regulations, combined with pressure from regulators to reduce “risk,” can lead many banks to try to follow the political winds of who is in charge to make its best guess as to what is risky. That may include not only disfavored economic activities like cryptocurrency, but disfavored political activities, as well.
Much like in the social-media context, it would probably be nearly impossible—absent the relevant bank’s cooperation—for a debanked individual to prove they were harmed as a result of government pressure, rather than independent bank action. Changed priorities like those reflected in the EO may be necessary to combat this type of backdoor censorship.
Conclusion
Unfortunately, the EO only applies to federal regulators, leaving state- and local-level pressure campaigns like the one considered in the insurance-regulation context in NRA v. Vullo undisturbed as long as they aren’t too “ham-handed” about it, to use Justice Samuel Alito’s phrase. The EO also is only as effective as the executive branch obeying itself, which isn’t quite the same thing as traditional checks-and-balances. Nonetheless, it is a step in the right direction toward making the marketplace of ideas free again.
