Missouri Attorney General Andrew Bailey just can鈥檛 resist inserting his office into right-wing culture-war crusades that don鈥檛 have anything to do with his duties as Missouri鈥檚 lawyer and that are often on shaky constitutional ground.
The latest case-in-point is Bailey鈥檚 proposed new rules regarding social media companies. Riffing on the false MAGA trope that Facebook and its ilk unfairly muzzle conservative voices, he wants to force the biggest of the platforms to offer third-party moderation to Missouri users. So instead of Facebook鈥檚 own content moderators deciding whether a user is violating the company鈥檚 standards by posting libelous or toxic material, the user would have the option of having an outside entity decide.
Reasonable readers might at this point have a few questions: Does this topic have anything do with Bailey鈥檚 job as top legal counsel for his state and its residents? Is it remotely feasible for one state to impose such a sweeping and intrusive rule on platforms that serve users all over the world? And, because social media platforms are among what can be considered the free press, would such a coercive plan be enforceable without blatantly violating the First Amendment?
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The clear answers are no, no and no. But Bailey, true to form, is pursuing the idea anyway, promising to shovel more of your tax money at another quixotic ideological stunt that will ultimately be turned back by the courts.
The right-wing narrative that conservative voices are unfairly quashed by social media companies鈥 in-house moderators stems largely from moves by Facebook and what was then Twitter in the wake of the Jan. 6, 2021, attack on the U.S. Capitol by supporters of then-President Donald Trump.
Trump incited the mob largely through his postings on the two platforms in the run-up to the insurrection. They included incendiary, utterly fictitious rants like this tweet on the day of the attack: 鈥淭hese are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long.鈥
Both platforms ended up temporarily banishing Trump out of a perfectly reasonable fear of, as Twitter put it, 鈥渢he risk of further incitement of violence.鈥
The platforms鈥 skittishness is understandable and was driven in part by scorching criticism some of them, particularly Facebook, faced after the 2016 election when it was established that Russia had used them to spread propaganda.
Whatever your view of the platforms鈥 moderation processes, the First Amendment is clear: Media entities 鈥 newspapers, cable and broadcast news and, yes, social media companies 鈥 have the right to decide what they will and won鈥檛 allow on their platforms.
That鈥檚 because these aren鈥檛 government entities but private companies; their right to decide how to monitor the content they offer is fundamentally no different than your right to decide what kind of campaign sign (if any) to put in your front yard.
That was the essence of a unanimous 2024 U.S. Supreme Court ruling (), which found that state laws in Texas and Florida attempting to regulate how social media platforms moderate their content were in violation of the First Amendment.
鈥淗owever imperfect the private marketplace of ideas, here was a worse proposal,鈥 wrote the court: 鈥(T)he government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others.
Bailey鈥檚 proposal has been presented as being different than the Texas and Florida laws in its details, but the gist remains: Missouri鈥檚 attorney general would presume to dictate to social media platforms how to conduct their content moderation by forcing them to add the third-party moderation option.
Given where even this conservative court has already come down on this question, it鈥檚 difficult to see how Bailey鈥檚 plan survives its inevitable legal challenges. 鈥淚 have no doubt that the court would hold that what Bailey is trying to do violates the First Amendment,鈥 Gregory Magarian, a law professor at Washington University, told the Post-Dispatch鈥檚 Jack Suntrup.
Bailey has previously attempted to insert his office where it doesn鈥檛 belong 鈥 suing the state of New York for daring to criminally charge Trump, defending three state legislators against a slander suit arising from their xenophobic conspiracy-mongering, attacking private companies鈥 diversity policies.
But this one is especially egregious in that it strikes at the heart of the First Amendment, which not only prevents government from censoring speech but prevents it from compelling speech.
Those restrictions apply to government, not private entities. Missouri鈥檚 top lawyer should know that and he probably does. But as usual, Andrew Bailey has no qualms about using your time and tax money to score ideological points with his base.
