On March 24, the Senate Judiciary Subcommittee on the Constitution held a hearing on the “Censorship Industrial Complex,” where senators and witnesses expressed divergent views on risks to First Amendment rights.  Senator Eric Schmitt (R-MO), the Subcommittee Chair, began the hearing by warning that the “vast censorship enterprise that the Biden Administration built” has expanded into an “alliance of activists, academics, journalists, big tech companies, and federal bureaucrats” that uses “novel tools and technologies of the 21st century” to silence critics.  Senator Peter Welch (D-VT), the Ranking Member of the Subcommittee, expressed skepticism about alleged censorship by the Biden Administration and social media companies, citing the Supreme Court’s 2024 opinion in Murthy v. Missouri, and accused the Trump Administration of causing “real suppression of free speech.”

The witnesses at the hearing, including law professors, journalists, and an attorney from the Reporters Committee for Freedom of the Press, expressed contrasting views on the state of free expression and risks of censorship.  Mollie Hemingway, the Editor-in-Chief of The Federalist, argued that federal and state governments “fund and promote censorship and blacklisting technology” to undermine free speech in coordination with universities, non-profit entities, and technology companies.  Jonathan Turley, a George Washington University law professor, and Benjamin Weingarten, an investigative journalist, raised similar censorship concerns, with Turley arguing that a “cottage industry of disinformation experts” had “monetized censorship” and adding that the EU’s Digital Services Act presents a “new, emerging threat” to First Amendment rights.

By contrast, Mary Anne Franks, also a George Washington University law professor, described the “censorship industrial complex” as a “myth,” as the First Amendment protects the “rights of private actors, including private universities, NGOs, [and] businesses, to ignore, criticize, and refuse to associate with speech they don’t agree with.”  Gabe Rottman, Vice President of Policy for the Reporters Committee for Freedom of the Press, noted that there are “instances where tough conversations between state officials and journalists are helpful” without violating the First Amendment prohibition against jawboning.  Franks and Rottman both expressed concerns with recent Trump Administration actions, including enforcement actions against news organizations and investigations of student protestors, and their impacts on free expression.

Members of the Judiciary Committee also provided different views of censorship risks.  The Ranking Member of the Judiciary Committee, Senator Dick Durbin (D-IL), accused the Trump Administration of using executive power to punish dissenting speech, and argued that attempts to “rewrite” the history of the January 6th U.S. Capitol riots amounted to a “corruption of speech.”  Senators Marsha Blackburn (R-TN) and Mike Lee (R-UT) echoed concerns about the “censorship industrial complex” and its efforts to silence conservative speech under the “auspices of fighting disinformation” related to the COVID-19 pandemic and the 2020 U.S. election.  Senator Josh Hawley (R-MO) focused on competition concerns, including his view that large technology companies have relied on their “market power to try and control outcomes in our political system” by controlling the “information that flows to the American people.” While concerns about censorship by technology companies will be a priority for the 119th Congress, the hearing indicates that bipartisan consensus remains unlikely.