How can anyone doubt the federal government is systematically violating the First Amendment?

The evidence is now so clear.

Freedom of Speech, a painting by Norman Rockwell

In a previous article, I argued that the United States is in serious danger of unintentionally slipping into a Soft Totalitarianism that more closely resembles Communist China than a constitutional republic.

Perhaps the biggest detour in modern history was the rise of Totalitarian ideologies in the 20th Century. Those ideological movements combined together:

• modern technologies,

• compelling world views, and

• mental disorders to create a man-made hell.

These regimes committed violence at levels rarely seen in human history. We might call this “Hard Totalitarianism.”

Soft Totalitarianism, on the other hand, is a type of regime that achieves power peacefully and perpetuates its rule with relatively low levels of violence. It is Totalitarian, however, because those in the regime seek to transform entire societies. This is very different from Authoritarianism, whose leaders merely want to hold power and have no desire to transform their society.

Soft Totalitarianism is a regime type that controls individuals’ lives to an extraordinary level. Mobile devices, social media, close-circuit television, facial-recognition software, digital payment, data mining, national firewalls, and other digital technologies enable a level of control over people’s daily lives that Mussolini, Stalin, Hitler, and Mao would have been envious of.

One might say that Communist China has perfected the prototype for Soft Totalitarianism. Of course, China still practices the old form of Totalitarianism in its genocide in Xinjiang. And the CCP always maintains the potential to spread systematic violence to the rest of the Chinese population if the regime is endangered. But most of the control that the Chinese Communist party has is imposed quietly through digital technology.

The linchpin of the whole “Soft Totalitarian” system would be the suppression of Free Speech. As social media takes up a larger and larger percentage of discourse, censorship in social media is on the leading edge of tyranny.

Without free speech on social media, it will be very difficult for free citizens to spread the word of the dangerous trend and collect evidence so that a counter-response can be developed. If free speech on social media is maintained, then it is much more likely that the nation will continue sliding into Soft Totalitarianism.

In the Western world, we have seen increasing attempts to impose elements of this Soft Totalitarianism on what are seemingly healthy democratic nations. The trend is much more advanced in Western Europe, Canada and Australia. Given that so many social media companies are based in the United States, if we stand firm for free speech then the trend will likely weaken everywhere else in the world. But if free speech on social media in the United States is choked off, then the trend towards Soft Totalitarianism will likely strengthen significantly throughout the world.

This front-line battle within the Free World is every bit as important as Ukraine and Taiwan.

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America First Legal has released documents proving that Facebook gave the federal government a digital portal that enables the censorship of thousands of Facebook users during the Covid pandemic. I see the evidence as a clear “smoking gun” that cannot be explained away. It reveals censorship that is:

• broad in scope and

• comes directly from the federal government (and therefore violates the First Amendment).

It can only be described as “automated digital censorship,” and it is far beyond the scope of any previous violation of the First Amendment in American history.

This story is very personal to me. I was a User Experience Designer in the Digital Technology industry for 20 years. It was my job to design user interfaces for software so that users could more easily perform their desired tasks. I am proud of the small contributions that I made to making software a bit more useful to regular people.

The fact that these skills could also be used to undermine the First Amendment of the US Constitution fills me with rage. A few years ago, social media companies were accused of deliberately censoring content. For a while, libertarians and liberals argued that since the social media companies were not the federal government, it was plausible to argue that these practices did not violate the First Amendment. Yes, censorship by corporations violated the principle of Free Speech, but since the Constitution was written to define the limits of the federal government, the practice technically did not violate the First Amendment.

And then came the release of the Twitter files in the fall of 2022. The Twitter files included vast number of emails between Twitter employees and federal government officials making it clear that the censorship was to a large extent driven by the federal government. But then the skeptics fell back on the argument that it was not systematic in scope and the federal government merely requested action. The federal government did not actually force social media companies to censor.

But now the released documents by America First Legal we have smoking gun evidence of an end-to-end workflow that enabled federal government employees to censor with virtually no action taken by social media companies. We have actual screen shots from the digital tool as well as a 400-page training manual teaching federal government employees how to properly use it.

The software included validation to ensure that only federal government employees could sign on:

Whereas before this system, the federal government created spreadsheets of links for Facebook to remove, this was not good enough as it left a potentially incriminating “paper trail.” Spreadsheets would have potentially made the censorship system public via Freedom of Information Act requests. This new User Interface conveniently allowed the federal government to evade proof of illegal action.

The new tool enabled the federal government to report up to 20 links at a time (how convenient!):

Government officials would receive a reference number so they could follow up with Facebook Help Center if the links were not properly taken down. According to Facebook, 16 million pieces of content were removed since the start of the pandemic. It is very unclear what percentage were done via this tool, but it is likely a very high number, far higher than any previous act of censorship.

What happens next in the censorship workflow after Facebook receives the “request” is unclear. As a UX Designer, though, it is not particularly difficult for me to figure out.

Given the sheer scale of the task, it is impossible for me to believe that Facebook investigated each and every one of these “requests.” The sheer expense of paying for employees to read the posts and then make the determination of whether it violated Facebook policies would have been overwhelming.

More likely, Facebook employees regarded the federal government employee as “an expert trusted source” whose decision should be ratified without the need for research. Facebook employees likely just:

1. batched up a large number of “requests” by the federal government (likely far more than 20 at a time), and then

2. clicked the “Approve” button.

So technically, Facebook was doing the censorship, not the federal government. But the vast majority of the workflow was accomplished by federal government employees via the digital tool.

Unless Facebook employees can provide evidence that they:

• researched each case coming from the federal government and

• declined to approve a significant percentage,

• this is a bulk violation of the First Amendment by the federal government.

And it is very likely that all other social media companies developed similar tools.

I do not think that I am being too dramatic by calling this by far the largest violation of the First Amendment in American history. Given the enormity of the task, no previous violations of the First Amendment were even close to it in scope. And most previous violations of the First Amendment were in wartime. This was during a time of peace.

There are now many high-profile legal cases involving accusations of social media censorship where the federal government might be directly involved. Most likely, the US Supreme Court will finally be convinced by the sheer scale of the evidence to making a ruling on the legality of the actions.

So far, the US Supreme Court has been reluctant to rule on the merits of the case. Instead, the judges maintained that because the persons who were directly affected by censorship were not claimants in the case. My guess is that this judicial stance will soon change, and the US Supreme Court will be forced by the scope of the evidence to rule on the merits of the case.

Let’s hope the US Supreme Court rules in favor of the First Amendment, or this will be a massive step toward Soft Totalitarianism. And just so that I am clear, regardless of whether the US Supreme Court rules on whether the practice violates the First Amendment, the practice clearly does violate the principle of Free Speech.

EDIT: Less than one week after winning the election (and two weeks after I wrote this article), President-Elect Donald Trump promised to annihilate social media censorship by the federal government. If implemented, this would be a huge step back from Soft Totalitarianism.