“Ghost state”: adopting corporate governance to escape constitutional limits

Teddy Roosevelt gave a speech in 1902, “Corporate Control,” which warned of the danger of corporate power over the lives of citizens. Calling companies “creatures of the state”, he said they should be controlled by “representatives of the public”. Roosevelt was a Republican, but his distrust of business (and later his faith in great government) would become a touchstone of Democratic politics for generations from the Great Depression to the Great Society.

Like Earth’s magnetic pole reversal, US politics now appear to have suddenly shifted: Democratic leaders increasingly advocate for corporate governance while Republicans voice populist themes. From support for the biggest censorship programs in history to privately commissioned vaccine “passports”, the Liberals are looking to companies like Apple and American Airlines to deliver social programs without constitutional and political limits imposed on the government.

This new model of governance was evident when the White House press secretary Jen psakiJen PsakiUS exit from Afghanistan ends 20 years of war Fewer than 200 Americans remain in Afghanistan after US withdrawal White House: Biden told commanders to “stop at nothing” to prosecute ISIS PLUS was asked about a compulsory vaccination passport system. She replied that this is “not currently the role of the federal government” but noted that the administration hopes to see such a mandate from “private sector entities, universities, institutions that are starting to develop. mandate, and this is an innovative step that they are going to take and they should take.

This use of corporations arose out of political and legal convenience. Despite the growing call for mandatory vaccinations, the Biden administration is clearly unwilling to face the political costs of a government mandate. As of July 11, 159,266,536 Americans were fully immunized, or 48% of the country’s population. Considering the extremely high vaccination rate among those over 65 (around 85%), the percentage of adults under 65 is even lower. That’s a lot of voters who wouldn’t accept a government mandate before the 2022 election. Additionally, the Supreme Court upheld a mandatory state vaccine in 1905, but any federal mandate could face constitutional challenges.

Private companies, however, have great latitude to dictate such terms. So some, like CNN medical analyst Dr. Leana Wen, have called for coercive measures making it “difficult for people to stay unvaccinated.” This coercion would come from private companies denying people access to travel, restaurants, movies, schools and other aspects of modern life. So, as with Psaki’s statement, Biden’s White House is signaling private companies to implement such a national passport system.

And businesses are listening.

Recently, Morgan Stanley said all employees must be vaccinated to return to work. While some have religious objections, Morgan Stanley CEO James Gorman made it clear in July that employees would face what Wen called “tough” times if they tried to work from home: “If you want to get paid at New York rates, you work in New York. York. None of that, ‘I’m in Colorado… and I’m paid like I’m sitting in New York.’ Sorry, that doesn’t work. The message couldn’t be clearer that remote working will be penalized.

If successful, companies will manage a system of barriers and sanctions to isolate vaccine hesitants in smaller and smaller living spaces. It would become increasingly difficult for citizens to travel or dine out if they did not meet the requirements of company policies.

The political convenience of relying on corporate controls is most evident in the support for a massive system of corporate-based speech controls now in the United States. The government cannot implement a system of censorship under the Constitution, but it can outsource censorship functions to private companies like Facebook and Twitter. Just this week, the White House admitted to reporting “disinformation” to Facebook for censorship. At the same time, Democrats like Sen. Richard Blumenthal (D-Conn.) Demanded that big tech companies commit to even more “robust content modification” – an Orwellian term for censorship. Liberal writers and media figures have called for corporate censorship despite the danger of an effective state media run by private companies. Even Columbia’s dean of journalism and New Yorker writer Steve Coll have denounced the First Amendment’s free speech right to be “militarized” to protect disinformation.

The public is now required to discuss public controversies within the boundaries and limits set by corporate censors – with advice from the government. Twitter banned reporting on Hunter Biden’s laptop until after the 2020 election. Facebook only recently announced that people on its platform could discuss the origins of COVID-19, having previously censored a such discussion – but it still bars opposing views on vaccinations and the pandemic. Other companies actively block temperamental thoughts and opinions; YouTube was fined in a German court last week for censoring videos of protests against COVID restrictions. Meanwhile, Twitter has censored criticism from the Indian government aimed at exposing the mismanagement of the pandemic which is costing lives.

The common refrain from the left is that corporate censorship is not a limit on free speech because the First Amendment only deals with government limits on speech. This not only maximizes corporate power, but minimizes the definition of free speech. Freedom of speech is not exclusively contained in the First Amendment. It includes the full spectrum of speech in society in private and public forums. Yet the Liberals – who once opposed recognition of corporate free speech rights in cases like Citizen’s United – are now big advocates of corporate speech rights, in order to justify the censorship of points of view. opposites view.

However, social media companies are not just any businesses. They were created as neutral platforms for communication between people when they were given special immunity from prosecution. Yet these companies now control a huge amount of public discourse and have become a growing threat to the democratic process, expanding their authority to frame debate on issues ranging from climate change to gender identity, from electoral fraud to election fraud. public health. You must espouse the “truth” established by these companies on certain issues or risk being banned as “propagators of disinformation”. Indeed, Psaki insisted this week that once people are banned by a business, they should be banned from all social media companies.

If these trends continue, citizens could find themselves effectively exiled by order of corporate governors – unable to travel or attend school while being barred from espousing dissenting views on social media. They would effectively ‘disappear’ in a shadow state devoid of any electoral or appeal process, a dystopian new world that could become all too real if we allowed elected officials to use corporate surrogates to control essential aspects of our operations. lives.

Decades after Teddy Roosevelt’s warning about corporate control, his cousin Franklin – a Democrat – warned that “the first truth is that the freedom of a democracy is not secure if people tolerate the growth of power. private to a point where it becomes stronger than their democratic state itself. This warning is worth repeating – indeed, worth tweeting… if Twitter allows it.

Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

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