From What, Exactly, Is the FBI Protecting Us?

After the tiered releases of the Twitter files, many suspicions have been thoroughly confirmed. Namely, social media monopolies like Facebook and Twitter worked hand-in-glove with the FBI, as well as other government agencies, to suppress accounts and censor stories they jointly deemed misinformation, disinformation, or otherwise harmful to the country during the 2020 election. 

The most significant malfeasance arises from the coordinated campaign to suppress the New York Post story about Hunter Biden’s abandoned laptop. The laptop exposed in great detail Hunter’s dissolute lifestyle, along with his role as the family “bag man” for various overseas financial interests.

Many have pointed out the Orwellian implications of the FBI and other intelligence agencies interfering in elections, determining which speech is “safe,” and pressuring private companies to do what the FBI has no authority to do directly while coordinating with their erstwhile colleagues

But even beyond these obvious problems, the major premise behind all this government activity is highly questionable. 

How Harmful Is Harmful Speech?

The harm being addressed is, essentially, bad speech. For the FBI and our ruling class, Our Democracy™ is apparently so fragile that the intrusion of even a single bad idea from foreign governments or internet trolls will irreparably damage the integrity of the election process, as well as any election results.  

This is why the FBI, Special Counsel Robert Mueller, and their allies in the media made a huge deal about Russian interference in the 2016 election. They always kept the details vague, conflating what actually happened with widespread fears that Russia somehow hacked voting machines. The whole thing was an alibi for Hillary Clinton’s loss and an implied indictment of Trump’s legitimacy. The establishment’s alarmed tone distracted from the reality that the only interference amounted to a handful of Facebook ads, ham-handedly designed to fan the flames of ongoing national discord.

Some of the Russian-bought ads were pro-Trump and others were pro-Black Lives Matter. But regardless of the content, and even though Russia hid its involvement, why did any of it matter? Can people not listen, agree, or disagree with something they read, whether it’s from a foreign government or some domestic gadfly, or even someone whose identity remains anonymous? Don’t other countries, be they Mexico, China, or lately Ukraine, also spend money to influence our policies? Isn’t the idea that people have a right to hear foreign viewpoints the premise behind “public diplomacy” and institutions like Radio Free Europe?

The Right to Listen

Under well-established First Amendment law, Americans have a right not only to engage in free speech, but a corollary right to listen to speech, including from foreign sources. 

At the height of the Cold War, the 1965 case of Lamont v. Postmaster General, struck down a federal statute directing the Postmaster General to seize “communist political propaganda” that “is printed or otherwise prepared in a foreign country,” to notify the addressee of its source, and to deliver it only upon the recipient’s request. These statutory requirements were far more transparent and far more permissive than the various bans, throttling, account deletion, and other sub rosa censorship undertaken by the FBI in collusion with the social media monopolies. 

Even so, the Supreme Court held that the “limitation on the unfettered exercise of the addressee’s First Amendment rights” to be “at war with the ‘uninhibited, robust, and wide-open’ debate and discussion contemplated by the First Amendment.”

While the Constitution prohibits almost all restrictions on political speech, and case law emphasizes the rights of both speakers and listeners to benefit from a “marketplace of ideas,” lately a new ethos has emerged: one that is fearful, sentimental, and paternalistic. 

Under the emerging ethos of safety, not only are certain forms of speech deemed beyond the pale—so-called hate speech, for example—but advocates approach the entire ecosphere of speech as something that must be curated and controlled. Implicit in this approach, the public must be vulnerable, fragile, tempestuous, and easily seduced by bad foreign speech. Instead of calling it what it is—ideas we disagree with—they ominously label such speech “disinformation.” 

This is not language consistent with our Anglo-American free speech traditions. The Lamont precedent is noteworthy because it dealt with a far more insidious species of foreign propaganda from a far more aggressive foreign competitor. Even so, the Court upheld the rights of readers to read Soviet propaganda if they wanted to. 

By contrast, other than its vague social conservatism, contemporary Russia has no similarly broad ideological message for Europe or the United States. It certainly does not have a message as organized, dangerous, and purposeful as Soviet Communism.

Occupied Democracy

There is a relevant precedent for the “managed speech” and “safety boards” that the establishment now considers important.  In the wake of World War II, the allies imposed significant measures on occupied Japan and Germany to prevent the revival of aggressive nationalism, including bans on the Nazi party in Germany, disestablishment of the Shinto religion in Japan, renunciation of divinity by the Japanese emperor, and a variety of formal and informal taboos that constrained these nations’ emergent democratic politics. These were each democracies of a sort, but labored under significant substantive limits on subjects that might otherwise obtain majority support. They were something new: “occupied democracies.” 

Under the circumstances, such restrictions made a lot of sense. After all, together both regimes had started an atrocious and costly war, and their conduct before and during the war was intimately tied to each nation’s political beliefs and practices. Their constitutional systems and democratic bona fides really were fragile and really did need certain safeguards. 

But precedents from military occupation are not a good template for our peacetime domestic affairs. We are not emerging from some dark chapter in our history, in spite of all the attempts to justify a domestic dragnet with talk of “extremists.” Trump’s politics were well within the American mainstream, liberal even, by the standards of 30 or 40 years ago. If he represented a partial vote of no confidence in the system, that is the point of elections and the presumed advantage of democracy. Even though he was elected fair and square, he was deprived of the same deference, respect, and mandate as his predecessors.

The idea of a fragile democracy that must be “fortified” to achieve particular substantive outcomes is, in fact, the opposite of democracy. Democracy is just a shorthand for popular self-government. Most of the limits imposed by the Constitution are on the state itself, not on the people. When democracy and elections are managed, someone must be doing the managing, and that someone must deem himself or themselves above majority control. 

For the ruling class, any majority outcome that goes against their bipartisan shibboleths—things like funding Ukraine, a strong NATO, and open borders—is anathema. Rather, voting and elections serve only to provide legitimacy to the system, buttressing the real power centers that are mostly unaffected by voting. While it is rarely said out loud, thwarting the popular will and labeling the result Our Democracy™ is an essential part of their program.

But there is a contradiction at the heart of this view. If democracy is so great, what does it say about majority rule that voters are so easily confused, led astray, or fooled by disinformation? If they really are uneducated and atavistic, who cares what such people want? Perhaps this is why the same ruling class considers populism so taboo, even though it’s merely one step removed from the majority rule that makes up the essence of democracy.

As in post-war Japan and Germany, the Washington, D.C. clique that sits above the people and purports to limit their exercise of majority rule is really in charge. When Biden, Pelosi, the FBI, and the social media monopolies say Our Democracy™, the emphasis is always on Our.

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About Christopher Roach

Christopher Roach is an adjunct fellow of the Center for American Greatness and an attorney in private practice based in Florida. He is a double graduate of the University of Chicago and has previously been published by The Federalist, Takimag, Chronicles, the Washington Legal Foundation, the Marine Corps Gazette, and the Orlando Sentinel. The views presented are solely his own.

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