Public choice economists and free-market advocates have long opposed “regulatory capture”—where corporate actors use the state for their purposes. Increasingly important, however, is what libertarian writer Matt Kibbe called “political capture”—when government actors use private companies for their purposes. Recent disclosures of deliberations between social media companies and the federal government over online content provide ample fodder for those investigating the political capture of media.
It’s become apparent that state and federal government officials are publicly and privately recruiting tech company employees for assistance in censoring online content. In turn, social media company employees are regularly consulting federal and state officials about what content to promote and to remove. As former CIA analyst Martin Gurri has remarked, “There’s no precedent for what’s going on unless you go back to Franklin Roosevelt’s wartime censorship.”
The most prominent recent example is found in the “Twitter Files”—records of internal company deliberations about content takedowns, user bans and blacklists—which Twitter’s new owner Elon Musk released to certain journalists. These documents join other revelations from recent litigation by the attorneys general of Louisiana and Missouri against certain federal government employees, new reporting and from Freedom of Information Act disclosures. Taken together, this information has given the public a peek into the American “voluntary censorship” framework.
What Is Voluntary Censorship?
For decades, U.S. government officials have engaged in what they call voluntary censorship to limit public discussion of controversial subjects. Government censorship in the U.S. is typically indirect—ad hoc and effected by private conversations and unrecorded threats—given the strong protections of the First Amendment. If private communications between regulators and media companies didn’t change behavior, the threat of costly, interminable administrative hearings often would.
The Federal Communications Commission’s (FCC) vague content “suggestions” for radio and TV media outlets have roots in the 1940s with the infamous Blue Book guidelines and the Fairness Doctrine. The FCC threatened license revocation and immediate insolvency for violators of these unpublished rules. Informal pressure on media companies poses a difficult problem for courts: When does private coordination with government actors—voluntary censorship—rise to unconstitutional censorship?
After Reagan-era media deregulation, newer, lightly regulated media—first cable and satellite TV, then social media—overtook regulated broadcast TV and radio as a source of news, and government officials lost most of their power over undesirable media narratives. However, the past few years of political rancor and the COVID-19 emergency appear to have encouraged federal officials to extend voluntary censorship to new media. As a White House national climate adviser stated at an Axios event last summer: “[W]e need the tech companies to really jump in” and remove green energy “disinformation.”
Reporters at the news site The Intercept recently reviewed a Department of Homeland Security (DHS) draft plan to target, in concert with private organizations, “inaccurate information” online on a range of topics, including “the origins of the COVID-19 pandemic and the efficacy of COVID-19 vaccines, racial justice, U.S. withdrawal from Afghanistan, and the nature of U.S. support to Ukraine.”
Public-private coordination over news censorship was not invented for the social media era: It has a century of precedent in the United States. Judges and lawmakers should apprise themselves of the historical relationship between federal information agencies and media, but records of how voluntary censorship operates are rare. The most notable detailed records involve an event from 80 years ago: the government and news media coordination in 1943 to suppress news of the Katyn Massacre, a tragic 1940 Soviet crime against Poles simultaneously fighting the German and Soviet militaries. The circumstances around the news suppression created a huge record because of multiple investigations by journalists and by Congress after the fact. The episode shows how public officials work with private parties to suppress major news stories.
The Wartime Origins of Voluntary Censorship
Today, aside from media law specialists and historians, the U.S. voluntary censorship system is not widely known. Like many public policies, voluntary censorship was developed in response to a wartime emergency—and never really stopped. While fragmentary, the new information removal disclosures and news stories suggest that the voluntary censorship system established by the U.S. government during World War I continues. Why does the voluntary censorship system persist? Because it works. Evidence of state action and information suppression often is only revealed years later, if ever, when the information has lost its power.
During both world wars, the U.S. government censorship and propaganda offices produced content guidelines for media outlets. To encourage the perception that censorship was voluntary in WWII, the U.S. government adapted and recruited members of the media industry to assist in censorship. As the U.S. Office of Censorship stated in a 1945 report, members of the major media outlets were “drafted” to serve a stint in the office. In addition to this “draft,” the office also created what they called “missionaries”: “one editor in each state … spreading the gospel of voluntary censorship among his colleagues.”
Therefore, during WWII, powerful men of industry—executives and reporters from Scripps-Howard, National Geographic magazine, Midwest radio empires and other outlets—drafted content codes and cycled in and out of the U.S. Censorship Office. However, beneath the surface, the practical implementation didn’t look very voluntary. Later congressional investigations revealed that a media outlet’s failure to abide by these “voluntary” codes entailed personal visits and “suggestions” from officials from industry, the Office of Censorship, the Office of War Information (OWI) or the FCC, depending on the situation. Failure to follow those private suggestions to government officials’ satisfaction during wartime resulted in, with little fanfare or process, loss of mail delivery privileges or loss of a radio broadcast license—in other words, a business death sentence.
By May 1943, the postmaster general had suspended mailing privileges for over 70 periodicals. At the time, the U.S. Office of Censorship alone had over 14,000 employees reviewing and suppressing information published or broadcasted that conflicted with U.S. government policy. One FCC official elaborated to Congress in August 1942 on the FCC’s role in wartime censorship of radio: Office of Censorship personnel would find undesirable content on the radio and tell the broadcast station manager to fire the offending radio host. Then,
he would give [the station manager] some time to think this over. After a couple of weeks, [the station manager] would begin to notice he was having some trouble getting his license renewed [at the FCC]. After a couple of more weeks of this same thing, he would begin to put two and two together and get four. Then he would fire [the host] and very shortly thereafter his license would be renewed by the Commission. This was a little extralegal, I admit….
These “extralegal” methods typically applied when the Censorship Office believed there was a national security risk—local media coverage of sightings of battleships, inadvertent leaks of troop movements, and the like. However, these methods would be turned on routine, domestic news-making in spring 1943 when stories of the Katyn Massacre began to circulate in America.
Katyn Massacre: “Political Dynamite”
The domestic suppression of the Katyn Massacre is the most infamous example of voluntary censorship during World War II. Congress’ inquiry into this event stretched over 10 years—from 1943 to 1952—and showed for the first time the detailed mechanics of how voluntary censorship in the U.S. worked. Members of Congress viewed Katyn Massacre censorship not merely as troubling public-private coordination, but also as a geopolitically significant event, possibly affecting the post-war borders and political independence of European nations.
Today, the wartime event is well-known: After the September 1939 joint Nazi-Soviet invasion, partition and occupation of Poland, the Soviet political police (NKVD) identified and captured more than 20,000 Polish military officers and members of the intelligentsia. After months of reeducation failed, the NKVD executed and buried thousands of these captured Poles in mass graves at several sites in the Soviet Union, including in the Katyn Forest in April and May 1940.
The Katyn Massacre was a Stalinist attempt at denationalizing the Polish people before installing a pro-Soviet Polish government. In 1990, as the Soviet Union crumbled, Soviet President Mikhail Gorbachev apologized to the Polish people for Katyn and bravely released top-secret documents, including Joseph Stalin’s 1940 execution order, confirming the contemporaneous forensic evidence.
For decades, however, geopolitical concerns required Soviet Union leaders to deny their involvement in these executions, instead placing the blame on the Nazis. German soldiers discovered some of the mass graves after their 1941 invasion of Russia. Three years after the executions, in April 1943, Nazi propaganda outlets broadcast the Soviet crime to international audiences.
Modern observers should note that, in spring 1943, the alliances were very different from those in 1940. The Soviets and Nazis in 1940 were in a de facto alliance invading and occupying Poland. After Hitler’s 1941 betrayal of Stalin and invasion of Russia, the Soviets joined the Poles in their fight against the Nazis. The Americans, neutral in 1940 during the Nazi-Soviet partnership, were allied with both the Poles and Soviets in 1943.
The news, followed by unpersuasive denials by the Soviets, confirmed to the Polish government what they had suspected after two years of misdirection and obfuscation from the Soviets about the location of thousands of missing Polish military officers. Those officers were desperately needed by the Allies in 1943 to drive the German army out of Eastern Europe.
While the Katyn Massacre is widely known today, less known is U.S. government officials’ and the radio industry’s domestic suppression of the event, the details of which we know from a series of congressional hearings, including the famous Madden Committee hearings, released in 1952. The news in spring 1943 had domestic implications in the U.S. The Katyn discovery’s effect on Polish-Americans was, in the words of President Franklin Roosevelt’s closest adviser, Harry Hopkins, “political dynamite” for the 1944 U.S. elections.
There were millions of Polish-Americans in the United States, many of them serving in the U.S. military and working in U.S. war equipment manufacturing. Definitive proof in 1943 and 1944 of the Soviet executions would have given liberated Poland a stronger voice in post-war negotiations, and certainly in its border and citizenship disputes with its invader, now ally. In private messages in April 1943, both President Roosevelt and British Prime Minister Winston Churchill urged Stalin to keep good relations with the Polish government, in part because of the role of Polish-Americans in U.S. politics. Stalin refused. The Soviets blamed the murders on the Nazis and severed diplomatic relations with their ally, the Polish government-in-exile.
But from the perspective of those close to President Roosevelt, public awareness of the Soviet mass murder of Poles—U.S. allies against the Nazis—might imperil the president’s 1944 reelection and congressional support for a post-war United Nations organization. Officially, after Stalin’s denial of involvement, the U.S. government took no position on which government was guilty for Katyn. Polish-Americans called for a U.S. investigation into the executions.
In this political climate, the voluntary censorship system would be turned on—clumsily, but effectively—the domestic debates about Soviet murders. Almost immediately after the broadcasts in Europe, complaints of domestic censorship reached Congress. A Polish-American member of Congress, Michigan Democratic Rep. John Lesinski, took to the floor of the House in 1943 and confirmed that “the newspapers of the United States were told by the Office of War Information to lay off the story.” In secret cables transmitted in July 1943, but only publicized years later, Poland’s ambassador to the U.S. complained that the OWI was censoring the Polish government’s releases about Katyn for American audiences, while permitting the broadcast of Soviet misinformation.
Most significantly, this censorship extended to radio, the most powerful news medium in the 1940s. The machinery of voluntary censorship for radio was in place, and it simply needed to be activated by a few well-positioned federal officials. From the 1952 Madden Committee reports examining Katyn, modern observers get a rare, detailed glimpse into how voluntary censorship worked.
Two influential Polish-language radio stations in Detroit, which even today has one of the largest Polish-American populations, were suggesting Soviet guilt in spring 1943 based on Polish news sources. After a local OWI official notified the FCC of the Detroit broadcasts, an FCC official privately encouraged the Censorship Office to censor the Katyn broadcasts domestically. The Censorship Office, however, refused. The Katyn controversy was not, in the office’s eyes, a national security matter. Opinions about Soviet or Nazi guilt regarding Katyn, and the effect on the president’s post-war plans with Congress, were a matter of domestic debate—Hopkins’ “political dynamite”—not national security.
After the Censorship Office’s refusal to intervene, a handful of officials from the FCC and OWI immediately decided more must be done to suppress the news. They ordered a meeting with two members of the private-sector radio censorship committee—one of the Censorship Office’s “innovations”—in early May 1943 to discuss the growing Polish-Russian controversy. The conversation was unrecorded, but after that meeting the two members of the private-sector censorship committee sent a memo to radio stations strongly discouraging news coverage of the executions, except from government-approved news sources.
Soon after, a Michigan station manager replied that he had met with the two station managers at issue: “For your information both of these stations are willing and anxious to cooperate along the lines desired by the Office of Censorship” and “have decided to eliminate all sources of information on the Polish-Russian incident….”
A few weeks after these assurances that news coverage of Katyn would end, the FCC initiated a follow-up investigation with one of the offending broadcast station owners to confirm that the agency’s “extralegal” methods had its desired effect. The agency made a detailed inquiry into the station’s personnel and broadcast content. The FCC found that the May 1943 meeting with the private-sector members of the censorship committee had a predictable effect: The popular Polish-American broadcaster, Marian Kreutz, who had reported on the massacre and Soviet misdeeds to American audiences had been fired. The station’s temporary license was renewed.
In the 1952 congressional hearings, an OWI official justified the joint actions in 1943 with the FCC. In his view, this was the voluntary censorship framework simply working as intended: “We did not attempt to gag. At the request of [radio] industry, we gave them information on people they had on the air, and it was up to them to gag or not to gag.”
Voluntary Censorship Today
Voluntary censorship, unsurprisingly, is quite different these days from what it was in the days of the Katyn story or the post-war content regulations like the Fairness Doctrine. In particular, the rise of social media since the 2010s has undermined that legacy approach. YouTube stars, Twitter contrarians and podcast hosts have no license to revoke, no mailing privileges to leverage and no centralized industry board members to pressure. However, in recent years, many federal and state agencies have stepped up their efforts to suppress information—what officials refer to euphemistically as “misinformation,” “disinformation” and “malinformation.”
Private-public coordination over censorship is extensive and seemingly growing. The Twitter Files revealed that the company’s deputy general counsel—a former FBI general counsel—was advising on content decisions. Twitter employees have also said they met weekly with U.S. intelligence agencies for years and those agencies had warned of, among other things, revelations about Hunter Biden. DHS documents from April 2022, obtained and released by U.S. Sen. Chuck Grassley, show a federal law enforcement agency meeting agenda with Twitter executives to “operationaliz[e] public-private partnerships between DHS and Twitter” regarding content takedowns.
More troubling, Twitter Files releases show an FBI agent in the San Francisco office making plans with a Twitter official to “establish one Signal channel for FBI San Francisco and one for FBI [headquarters].” If the FBI and social media company officials are using encrypted communications like Signal to communicate, it’s unlikely the public, judges or congressional overseers will have the ability to see what is discussed.
It’s not just Twitter and not just federal agencies that are involved in voluntary censorship. In April 2020, a Facebook spokesperson told Politico that the company “had been instructed by [three] state governments” to remove user-created Facebook pages organizing protests against lockdowns. Newly revealed documents show White House personnel badgering Facebook officials to remove “vaccine hesitancy” information in early 2021, as COVID-19 vaccines rolled out.
After repeated inquiries and a vague, private threat from the White House—stating “we have been considering our options on what to do about” Facebook officials’ supposed lack of urgency—company officials agreed to share information on “what we are seeing in as close to real time as possible.” On a few occasions, White House officials have outright asked for certain posts about vaccines from prominent journalists and others to be “reduced” or removed.
Protecting the First Amendment
Free speech advocates and courts must be alert to modern voluntary censorship. Some methods have not changed, including the use of private, unrecorded communications between government and media representatives and government representatives’ conflation of censorable speech (such as troop movements and fake election information) with slanted but legal speech. But the government has lost its most powerful weapon—loss of mailing and broadcast privileges. Social media and tech companies don’t have licenses to threaten.
While their tools are less powerful, congressional investigations, drawn-out administrative agency investigations, government contracting decisions and antitrust scrutiny can all be used to penalize and perhaps even bankrupt recalcitrant company officials. Troubling new tactics have emerged from the recently revealed documents, however: encrypted communications between government and social media employees, online portals to fast-track government agencies’ content takedown requests, and a growing “misinformation” industry—nominally private organizations developing censorship guidelines, often funded by and working closely with U.S. government agencies. Given the vagaries of “misinformation,” mission creep is a constant risk.
Extending voluntary censorship methods further seems imminent. Too many U.S. government officials view American minds as a theater to which their authority extends. As a director of a DHS cybersecurity agency put it last year regarding “rumor control” among Americans, “We are in the business of critical infrastructure. …And the most critical infrastructure is our cognitive infrastructure….”
To protect free speech and First Amendment guarantees, tech companies need more courage and transparency, government officials need to urge restraint on their overeager staffs, and Congress and the courts need to approach censorship claims with U.S. media history in mind.