The Shadow State: Embracing Corporations
As Surrogates For Government Action
By Jonathan Turley
July 20, 2021 "Information
Clearing House" -
Teddy Roosevelt gave a speech in 1902, “The
Control of Corporations,” which warned of the
danger of corporate power over citizens’ lives.
Calling corporations “creatures of the state,” he
said they must be controlled by “the representatives
of the public.” Roosevelt was a Republican, but his
distrust of corporations (and his later faith in big
government) would become a touchstone of Democratic
politics for generations, from the Great Depression
to the Great Society.
Like the reversal of Earth’s magnetic poles,
American politics now seems suddenly to have
flipped: Democratic leaders increasingly advocate
for corporate governance while Republicans voice
populist themes. From supporting the largest
censorship programs in history to privately mandated
vaccine “passports,” liberals are looking to
companies like Apple or American Airlines to carry
out social programs free from constitutional and
political limits imposed on the government.
This new model of governance was evident when
White House press secretary Jen
Psaki was asked about a mandated vaccine
passport system. She responded that
it 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 mandate, and that’s an innovative step
that they will take and they should take.”
This use of corporations is born out of political
and legal convenience. Despite the rising call for
mandatory vaccinations, the Biden administration
clearly is not willing to face the political costs
of a government mandate. As of July 11, 159,266,536
Americans were fully vaccinated — 48 percent of the
country’s population. When you consider the
extremely high rate of vaccination for those over 65
(an
estimated 85 percent), the percentage of adults
under 65 is even smaller. That is a lot of voters
who would not take well to a government mandate
before the 2022 election. Moreover, the Supreme
Court upheld a mandatory state vaccine in 1905, but
any federal mandate could face constitutional
challenges.
Private companies, however, have great leeway in
dictating such conditions. So some, like CNN medical
analyst Dr. Leana
Wen, have called for coercive measures making it
“hard for people to remain unvaccinated.” That
coercion would come from private companies which
would deny people access to travel, restaurants,
movies, schools and other aspects of modern life.
Thus, as with Psaki’s statement, the Biden White
House is signaling private companies to implement
such a national passport system.
And companies are listening.
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Recently, Morgan Stanley declared that all
employees must get a vaccine to return to work.
While some many have religious objections, Morgan
Stanley CEO James Gorman made clear in July that
employees would face what Wen called “hard” times if
they tried to work from home: “If you want to get
paid New York rates, you work in New York. None of
this, ‘I’m in Colorado … and getting paid like I’m
sitting in New York City.’ Sorry, that doesn’t
work.” The message could not be clearer that working
remotely will come at a penalty.
If successful, corporations will manage a system
of barriers and penalties to isolate the
vaccine-hesitant into smaller and smaller spaces of
existence. Citizens would find it increasingly
difficult to be able to travel or dine out unless
they meet the demands of corporate 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 implanted in the United States. The government
cannot implement a censorship system under the
Constitution — but it can outsource censorship
functions to private companies like Facebook and
Twitter. Just this week, the White House admitted
it has been flagging “misinformation” for Facebook
to censor. At the same time, Democrats like Sen.
Richard Blumenthal (D-Conn.) have 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 through private
corporations. Even Columbia
Journalism Dean and New Yorker writer Steve Coll has
denounced the First Amendment right to freedom of
speech being “weaponized” to protect disinformation.
The public is now required to discuss public
controversies within the lines and limits set by
corporate censors — with the guidance of the
government. Twitter barred reporting on Hunter
Biden’s laptop until after the 2020 election.
Facebook only
recently announced that people on its platform
may discuss the origins of COVID-19, after
previously censoring such discussion — but it still
bars opposing views on vaccinations and the
pandemic. Other companies actively block wayward
thoughts and views; last week, YouTube was fined
by a German court for censoring videos of
protests over COVID restrictions. Meanwhile,
Twitter censored
criticism of the Indian government meant to
expose mismanagement of the pandemic that 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 addresses
government limits on speech. That not only maximizes
the power of corporations but minimizes the
definition of free speech. Free speech is not
exclusively contained in the First Amendment. It
includes the full range of speech in society in both
private and public forums. Yet, liberals — who once
opposed the recognition of corporate free speech
rights in cases like Citizen’s
United — are now great advocates for corporate
speech rights, in order to justify the censorship of
opposing views.
Social media companies are not just any
businesses, however. They were created as neutral
platforms for communication between people when they
were given special immunity from lawsuits. Yet these
corporations now control an enormous amount of
public discourse and have become a rising threat to
the democratic process, expanding their authority to
frame the debate on issues ranging from climate
change to gender identity, from election fraud to
public health. You must espouse the “truth” as
established by these companies on certain questions
or risk being banned as “misinformation spreaders.”
Indeed, Psaki this week insisted that once people
are banned by one company, 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 go to school while
also barred from espousing dissenting views on
social media. They would, effectively, be
“disappeared” within a shadow state that lacks any
electoral or appellate process — a dystopian brave
new world that could become all too real if we allow
elected officials to use corporate surrogates to
control the essential aspects of our lives.
Decades after Teddy Roosevelt’s warning about
corporate control, his cousin Franklin — a Democrat
— warned that the “first truth is that the liberty
of a democracy is not safe if the people tolerate
the growth of private power to a point where it
becomes stronger than their democratic state
itself.” That warning is worth repeating — indeed,
worth tweeting … if Twitter will allow it.
Jonathan Turley is the Shapiro Professor of
Public Interest Law at George Washington University.
You can find his updates on Twitter @JonathanTurley.
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