A curious event in Supreme Court history happened last month: An amicus brief was filed that consists entirely of a short story. Although this kind of literary contribution to law may have occurred before, it is rare and notable—especially as it was written by none other than David Mamet. As put by Joshua Katz last week in the New Criterion, such a brief from such an author is a “surprising legal intervention.”
The story concerns a pilot whose map doesn’t correlate to what he sees on the ground below. This should matter for the justices because it captures one of the dangers of government-orchestrated censorship. And it matters for Catholics and other religious minorities because their religious and moral views are particularly at risk of suppression.
Mamet filed his short story in NetChoice v. Paxton—a case that will decide the fate of free speech in this country. At stake is the 2021 Texas free speech statute, which bars dominant social media platforms from viewpoint discrimination. This protection for speech is essential because other protections have been eviscerated.
The government used to suppress speech in retail manner by prosecuting individuals in the courts, which meant the government had to sustain the burdens of proof and persuasion against particular individuals responsible for particular writings. Now, however, government just asks social media platforms to suppress speech, and because they are chokepoints for much public communication, they offer the government the opportunity for highly effective wholesale suppression. The government can thereby suppress speech without going to court—so the suppressed individuals must go to court to escape the censorship, thus leaving them the burdens of proof and persuasion. Never before has suppression been so easy or resisting it so difficult.
Even when the censored get to court, the remedies are limited. The Supreme Court’s qualified immunity doctrine largely precludes damages action against officials for past censorship. And its state action and speech doctrines make it difficult to get an effective injunction against future censorship. Indeed, because of the secrecy of the government censorship, it has taken half a decade even to get an injunction. Heads, government wins; tails, you lose. When judicial remedies for both past and future censorship are so inadequate, we are all in a pickle.
What’s more, no amount of legal action against the government will effectively stop the censorship because the platforms are dominant chokepoints for speech. Each of the largest platforms dominates its own sphere of speech: Facebook dominates communication among friends and other groups; TikTok dominates short videos; YouTube dominates longer ones; Twitter dominates short public statements, etc. Moreover, they do not censor independently. Instead, they rely on government coordination to evade anti-trust law in aligning their suppression of speech. So to understand their dominance over communication, they must be understood together as an industry.
These circumstances make censorship easy for government. It merely has to coordinate the platforms in the censorship they favor and pressure or otherwise induce them at the margins, where they otherwise would not go along with the government coordination. The platforms thus offer an irresistible temptation for censorship. Offered the opportunity to suppress criticism and shape elections, government will always find a way.
So the only effective obstacle to our current censorship regime will be state common carrier laws, like that of Texas, that bar dominant platforms from viewpoint discrimination. For more than five years, no branch of the federal government has effectively halted federal censorship. It therefore is fortunate that states have a structural role in limiting it. This is familiar from the Alien and Sedition laws, and this time the state of Texas has adopted an entirely lawful mechanism against the danger.
The legal justifications for the Texas law need not be recited here in detail. Suffice it to say that the platforms’ claim of free speech to suppress free speech is a perversion of the First Amendment. Like telegraph and telephone companies, social media platforms don’t have a right to expressively discriminate against their users. If they did have such a right, then what business would not have such a right? The platform’s arguments against the statute could thus undermine the full range of anti-discrimination law. The statute, moreover, is the gentlest common carrier statute in existence, as it doesn’t even impose damages for violations.
Mamet’s contribution to this case is to help the justices see the dangers of government-manipulated public debate. Like the pilot in his story, we rely on public debate on the platforms to understand where we are and where we are going. So if government, let alone the platforms, can deliberately distort that debate, we will be in trouble. We will be blind to realities, and that will be dangerous—for each of us and for the nation.
You can read Mamet’s story here.
Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School.
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Image in public domain.
