Can Florida Use Its State Pension Fund to Investigate How The New York Times Covers the News?

Conservatives loudly – and as it turned out, correctly – complained that the Biden Administration was shadow-banning and deplatforming them through secret “jawboning” of major social media platforms. Meta CEO Mark Zuckerberg last year described in vivid terms to Joe Rogan how White House staffers would scream at him over the phone, demanding that satirical posts about liberals be taken down.

Why on earth, then, are conservatives exploring novel ways for the government to abuse its power to censor content and challenge the First Amendment rights of news organizations? Do they care about the Constitution? And do they lack the imagination to see how these regulatory powers will eventually be employed against them?

Federal Trade Commission Chairman Andrew Ferguson is one of these pioneers of censorship. He threatened to use Section 5 of the FTC Act, which outlaws deceptive practices, to target social media companies for content decisions as a matter of “consumer protection.” He also targeted Apple News, threatening it over the way it aggregates stories.

For his part, Brendan Carr, chairman of the Federal Communications Commission, has threatened to pull broadcast licenses and to take other retaliatory actions against media companies for their editorial decisions.

Florida Attorney General James Uthmeier is now entering the fray by using the financial interests of the state pension fund to justify a detailed examination of a newspaper’s editorial decisions. The state attorney general is demanding that The New York Times turn over extensive internal documents about its editorial decisions and practices. His 28-page letter seeks evidence of “editorial malpractice.”

The examples Uthmeier cites include recent stories about Israel’s allegedly lurid maltreatment of Palestinian prisoners and the paper’s “downplaying” of the Nazi tattoo worn by former U.S. Senate candidate Graham Platner.

General Uthmeier bases his demand on a slender justification: protecting the returns on Florida’s pension-fund investment. The state’s pension fund owns 160,000 shares of Times stock, worth more than $12 million.

Uthmeier states that his concern is financial – looking out for the welfare of Florida pensioners by preventing The Times from making editorial blunders that could result in reputational damage and a massive libel judgment.

But Uthmeier’s action runs the risk of mirroring left-wing shareholder activism that successfully imposed DEI and woke policies on some of America’s leading companies. His approach could erode the First Amendment rights of all Americans.

Does The New York Times have a liberal bias? Do one-legged ducks swim in a circle? One reason The Times is a liberal publication is that it has a mostly liberal following. And the devotion of its readers punctures a sizable hole in Florida’s financial case.

Two weeks ago, The Times reported that it had added 280,000 digital subscribers in the last quarter, for a total digital readership of 13.35 million. Add to that 550,000 print subscribers. The Gray Lady’s total revenue increased 11.2 percent for the three months ending in June. Its operating profit of $155.3 million was up 16.1 percent.

Numbers like these undermine Florida’s concern about protecting the assets of its pensioners from a financial disaster at The New York Times.

We believe that if this demand is pressed in a lawsuit, it is unlikely that any court in America would force The Times to reveal its internal editorial deliberations for scrutiny by a government official.

In fact, legal action might put Florida at risk of violating its own anti-SLAPP law, which prohibits meritless lawsuits filed to chill speech. Since the prevailing party on an anti-SLAPP claim may be awarded reasonable attorney’s fees and costs, such a lawsuit might have the ironic effect of financially harming Florida instead of humbling The New York Times.

But if, by some chance, this strategy should work, don’t be surprised when blue-state officials demand that profitable conservative outlets like Fox News and The Daily Wire also submit to government inspection. That’s just one of many consequences of an anti-constitutional arms race.

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