The existence of the Disinformation Governance Board will inevitably have a chilling effect on free speech. Americans will hesitate before they voice their constitutionally protected opinions, knowing that the government’s censors may be watching, and some will decide it is safer to keep their opinions to themselves. The resulting damage to our political system and our culture will be incalculable: as a democracy, our political debates and decisions are supposed to take place in the public square, where every citizen can participate, rather than in government office buildings where hand-picked and unaccountable partisan committees are insulated from public supervision and criticism.
The timing of the Disinformation Governance Board’s creation is also highly suspect. For years, many have defended Twitter’s open censorship of voices hostile to the elite consensus by arguing that private companies enjoy the right to determine what is said on their platforms. This argument only works, however, if those private companies are not censoring on the government’s behalf. By its own admission, the Biden Administration has been “flagging problematic posts” on social media and coordinating with the private sector to regulate Americans’ free speech.2 The President of the United States publicly urged social media companies to police “misinformation and disinformation” on their platforms.3 Suddenly, just as Elon Musk prepares to acquire Twitter with the stated purpose of correcting the platform’s censorship of free speech, you announce the creation of the Disinformation Governance Board. As the Biden Administration apparently loses a critical ally in its campaign to suppress speech it deems “problematic,” you have created a new government body to continue that work within the federal government. The contemporaneous occurrence of these two events is hard to explain away as mere coincidence. It instead raises serious questions about the extent of the Biden Administration’s practice of coordinating with private-sector companies to suppress disfavored speech.
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No statutory authority exists to support your creation of a board of government censors. Although Congress has considered a variety of measures to address the perceived dangers of “disinformation” in the United States, none has passed.4 Instead, while the people’s elected representatives continue to debate this issue, you have arrogated to yourself the power to address it without congressional authorization, despite the far-reaching effects of the Disinformation Governance Board on Americans and our political process. “It is axiomatic that an administrative agency’s power to promulgate legislative regulations is limited to the authority delegated by Congress.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). By flouting that essential check on the power of the Executive Branch, you undermine the separation of powers and dramatically overstep your authority and the jurisdiction of your agency.
There is perhaps no clearer illustration of the folly of the Disinformation Governance Board than the consistently poor judgment of the person you have made its executive director, Nina Jankowicz.5 Ms. Jankowicz—the self-styled “Mary Poppins of disinformation”6—is like so many who complain about misinformation and disinformation: she is often in error but never in doubt. She has previously suggested news that Hunter Biden’s laptop had been compromised was the product of a foreign disinformation campaign.7 She asserted that the theory tracing COVID-19 to a lab
leak in China was invented because it was “politically convenient for Trump,”8 although the intelligence community now assesses that this theory may very well be correct.9 She has even praised Christopher Steele, the discredited author of the infamous false “dossier” about President Trump, and one of the most notable peddlers of disinformation in recent memory.10 It would be amusing that a self-proclaimed expert in disinformation like Ms. Jankowicz has proven to be so bad at identifying it, except that you have placed her in charge of doing so on behalf of the United States government.11 It is also extremely troubling that Ms. Jankowicz has described parents in Loudoun County, Virginia who object to the indoctrination of their children with Critical Race Theory as “disinformers” engaged in “disinformation for profit.”
