Censorship on Trial at the Supreme Court

From the Brownstone Institute

Billed as one of the most consequential lawsuits of the last century, Murthy v. Missouri (formerly Missouri v Biden) is a legal battle that stands at the intersection of free speech protections and social media companies.

The plaintiffs, which include psychiatrist Aaron Kheriaty, and epidemiologists Martin Kulldorff and Jay Bhattacharya, cosignatories of the Great Barrington Declaration, allege the US government coerced social media companies to censor disfavoured viewpoints that were constitutionally protected by the First Amendment.

The US government denies coercing social media companies, arguing it was “friendly encouragement” in an effort to protect Americans from “misinformation” in a public health emergency.

The Constitution is clear – it forbids the US government from abridging free speech. But a private company such as a social media platform bears no such burden and is not ordinarily constrained by the First Amendment.

This case asks whether certain government officials impermissibly coerced social media companies to violate the First Amendment rights of social media users. The case now sits before the Supreme Court of the United States (SCOTUS).

The Case So Far

The case has seen several twists and turns since it was originally filed in 2022.

Discovery allowed plaintiffs to document nearly 20,000 pages showing platforms like Twitter (now X), Facebook, YouTube, and Google stifled free speech by removing or downgrading stories about Hunter Biden’s laptop, the 2020 presidential election, and various Covid-19 policies.

The plaintiffs described it as an “unprecedented, sprawling federal censorship enterprise.”

On July 4, 2023, US District Court Terry Doughty granted a motion to restrict federal government officials from communicating with social media companies over content it believed to be misinformation.

Specifically, they were prohibited from meeting or contacting by phone, email, or text message or “engaging in any communication of any kind with social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech.”

Doughty indicated there was “substantial evidence” that the US government violated the First Amendment by engaging in a widespread censorship campaign and that “if the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history.”

The Biden Administration appealed the decision in the Fifth Circuit Court of Appeals, arguing that the officials exercised a form of permissible government speech because they only pointed out content that violated the platforms’ policies to reduce the harms of online misinformation.

On September 8, 2023, the Fifth Circuit largely affirmed Judge Doughty’s order stating that US government officials were engaging “in a broad pressure campaign designed to coerce social-media companies into suppressing speakers, viewpoints, and content disfavored by the government.”

It was determined that the harms of such censorship radiated far beyond the plaintiffs in the case, essentially impacting every social-media user.

Circuit Judge Don Willett said the White House applied pressure to social media companies, using “fairly unsubtle strong-arming” and making “not-so-veiled threats” in the form of “mafiosi-style” tactics along the lines of “This is a really nice social media platform you’ve got there, would be a shame if something happened to it.”

The underlying threat, implied by Willett, is that the US government might increase its regulation over the platforms and enforce legal reforms to Section 230 which currently protects platforms from civil liability in US courts for content that appears on their platforms. Section 230 states:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

On October 3, 2023, a 74-page ruling ordered US Surgeon General Vivek Murthy, White House Press Secretary Karine Jean-Pierre and dozens of officials from The White House, FBI, and Centers for Disease Control and Prevention (CDC) to:

…take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech.

However, President Biden is no longer a named defendant because the Fifth Circuit did not uphold the order against him, hence the change in the name to Murthy v Missouri.

On October 20, 2023, the Supreme Court of the United States (SCOTUS) granted Murthy’s application for stay (pause) of the injunction, until the court could review the case and issue a judgement.

In the Supreme Court

On March 18, 2024, Murthy v Missouri arrived at SCOTUS where Justices heard oral arguments by Brian Fletcher, Deputy Solicitor General for the US government and Benjamin Aguiñaga, Louisiana’s solicitor general for the plaintiffs.

Friendly, not Coercive?

Fletcher continued to argue that the government’s communications did not rise to the level of threats or coercion, but was simply encouraging social media platforms to exercise their misinformation policies (which would not be unconstitutional).

“If it stays on the persuasion side of the line — and all we’re talking about is government speech — then there’s no state action and there’s also no First Amendment problem,” said Fletcher. “I think it’s clear this is exhortation, not threat.”

Justice Samuel Alito however, seemed more convinced that the tirade of emails and crude language used by the White House officials to social media companies, mounted to coercion through their “constant pestering” of the platforms.

“It is treating Facebook and these other platforms like they’re subordinates,” said Alito. “Would you do that to the New York Times or the Wall Street Journal or the Associated Press or any other big newspaper or wire service?”

Justices Brett Kavanaugh and Elena Kagan referenced their own experience as government agents who had tried to persuade journalists to write stories differently, seeming dismissive about the argument that they were violating the Constitution in those circumstances.

“Like Justice Kavanaugh, I have had some experience encouraging press to suppress their own speech,” admitted Kagan. “This happens literally thousands of times a day in the federal government.”

Traceability

Some Justices questioned whether the plaintiffs could show they were directly “injured” by the censorship and if it was directly traceable to the government. In fact, Aguiñaga was asked to provide specific examples of where the plaintiffs were censored directly because of government coercion.

Justice Kagan said that platforms already moderate content, “irrespective of what the government wants, so how do you decide that it’s government action as opposed to platform action?”

Aguiñaga named Jill Hines, co-director of Health Freedom Louisiana, who was specifically mentioned in the government’s communications to be targeted for censorship.

Kheriaty, another plaintiff on the lawsuit, later commented that proving they were censored directly as a result of government action, rather than decisions by the platforms or their algorithms, would not be simple.

“Even with extensive discovery – which is hard to get in any event – finding the entire trail from a government directive to the take down of a specific YouTube video or Tweet would be virtually impossible,” wrote Kheriaty in a recent post.

Hamstringing the Government

Arguably, the most controversial moment was when the newest Justice of the court, Ketanji Brown Jackson questioned Aguiñaga over the impact of broadly restricting the government’s communications with social media platforms.

“My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods,” said Jackson. But critics immediately pointed out that the only purpose of the First Amendment is to hamstring the government. It states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In the courtroom, Jackson posed a hypothetical scenario of a “challenge” circulating on social media where teenagers were encouraged to “jump out of windows at increasing elevations.”

“Some might say that the government actually has a duty to take steps to protect the citizens of this country,” said Jackson wondering if, in the context of a once-in-a-century pandemic, it might change the principle of the First Amendment.

“You seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information,” added Jackson.

Aguiñaga responded by saying that the US government had many options to amplify its messages without coercing private companies to censor content, including using its “bully pulpit” to make public statements.

Aguiñaga also said that people on social media were often unaware of the extent of the governments meddling to remove content. “The bulk of it is behind closed doors. That is what is so pernicious about it,” he said.

Whether SCOTUS votes to order a halt to the government’s widespread censorship enterprise remains to be seen. A ruling is expected in June 2024.

Republished from the author’s Substack

Author

Maryanne Demasi

Maryanne Demasi, 2023 Brownstone Fellow, is an investigative medical reporter with a PhD in rheumatology, who writes for online media and top tiered medical journals. For over a decade, she produced TV documentaries for the Australian Broadcasting Corporation (ABC) and has worked as a speechwriter and political advisor for the South Australian Science Minister.

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Cut the Truth Out of Our Heads

Published on October 14, 2024

Todayville

From the Brownstone Institute

By Jeffrey A. Tucker

The old meme of the man staying up late typing because “someone is wrong on the Internet” applies now to an entire swath of the ruling class. They want freedom out and the stakeholders in control

The censors are losing patience. They have gone from regretting the existence of free speech and gaming the system as best they can to fantasizing about ending it through criminal penalties.

You can observe this change in temperament – from frustration to fury to calling for violent solutions – over the last several weeks. And it serves as a reminder: censorship was never the end point. It was always about controlling society’s “cognitive infrastructure,” which is how we think. And to what end? A secure monopoly on political power.

This week, Fox reporter Peter Doocy was sparring with the White House spokesperson over whether FEMA is funding migrants even as it cannot help American storm survivors. She immediately shot back and called this “disinformation.” Peter wanted to know what part of his question qualified. Jean-Pierre said it was the whole context of the question and otherwise never said.

It was clear to anyone who was watching that the term “disinformation” means to her nothing other than a premise or fact that is unwelcome and needs to be shut down. This messaging has been further reinforced by a Harris/Walz ad blaming unnamed “misinformation” from Trump for exacerbating hurricane suffering following Hurricane Helene.

This exchange came only days after Hillary Clinton suggested criminal penalties for disinformation, else “they will lose total control.” It’s an odd plural pronoun because, presumably, she is not in control..unless she regards herself as a proxy for an entire class of rulers.

Meanwhile, former presidential candidate John Kerry said the existence of free speech is making government impossible. Kamala Harris herself has sworn to “hold social media accountable” for the “hate infiltrating their platforms.” And well-connected physician Peter Hotez is calling for Homeland Security and NATO to put an end to debates over vaccines

You can detect the fury in all their voices, almost as if every post on X or video on Rumble is causing them to lose their minds, to the point that they are just saying it out loud: “Make them stop.”

Hurricane Milton seems to have caused the censors to flip out in a violent rage, as people wondered whether and to what extent the government might have something to do with manipulating the weather for political reasons. A writer in the Atlantic explodes: “I’m running out of ways to explain how bad this is. What’s happening in America today is something darker than a misinformation crisis,” while decrying “outright conspiracy theorizing and utter nonsense racking up millions of views across the internet.”

Catch that? It’s the viewing itself that is the problem, as if people do not have the capacity to think for themselves.

The old meme of the man staying up late typing because “someone is wrong on the Internet” applies now to an entire swath of the ruling class. They want freedom out and the stakeholders in control, somehow forcing the whole of the digital age into a version of 1970s television with three channels and 1-800 numbers. The Biden administration even refounded the Internet, replacing the Declaration of Freedom with a new Declaration of the Future.

YouTube accounts have been demonetized and deleted. Facebook posts have been throttled and banned. LinkedIn’s algorithms punish posts that take issue with regime narratives. This has not slowed down in light of litigation but rather continued and intensified.

The goal is to close up the Internet. They would have done it by now if it were not for the First Amendment, which stands in their way. For now, they will continue to work through university cutouts, third-party providers, phony baloney fact-checkers, pressure on tech firms that provide government services at a price, and other mechanisms to achieve indirectly what they cannot do directly just yet.

Among the strategies is the political persecution of dissenters. Alex Jones is a bellwether here and his company is being bankrupted. Steve Bannon, the philosopher king of MAGA, has been in jail for the entire election season for having defied a Congressional subpoena on the advice of counsel. The protestors on January 6 have been in prison not for damages caused or trespassing but for landing on the wrong side of the regime.

Most of us had an intuition that the Covid vaccine mandates themselves were not entirely about health but rather a tactic of exclusion of those who were not fully trusting of authority. This was rather obvious when it came to the military and the medical profession but less apparent within academia where noncompliant students and professors were effectively purged for their refusal to risk their lives for pharma.

There was an element of malice, too, in the mask mandates. Even though there was zero scientific evidence that a Chinese-made synthetic cloth worn on the face can change epidemiological dynamics, they did serve well as a visible sign to separate believers from unbelievers, and also as a sadistic means of reminding individualists of who is really running the show.

The final means of censorship is violence against person and property, while the end is to control what you think in service of one-party rule. Major tech companies and major media are wholly complicit in bringing this about. Only a handful of services are stopping this and they are all being targeted by the regime through myriad forms of lawfare.

Postscript: as this article is released, the website archive.org has been fully down for the better part of a week, supposedly due to a catastrophic DDOS attack. The private owners say the data has been saved and it will be restored in time. Maybe. But consider: this the one tool we have for having a verified memory of what was posted when. It is how we found that WHO changed its definition of herd immunity. It’s how we found that the CDC was behind the mail-in ballot fiasco of 2020. It’s how we know that FTX funded anti-Ivermectin studies. And so on. The links were stable and good, never down.

Until now, two weeks before the election. We are of course supposed to believe that this shocking collapse is purely a coincidence. Maybe. Probably. And yet without this website – a central point of failure – vast amounts of the history of the last quarter century is deleted. The entire contents of the web can be re-written as vaporware, here one instant, gone the next. Even if this site does come back, what will be missing and how long will it take to figure it out? Will the Internet have been lobotomized? If not this time, could it happen in the future? Certainly.

Author

Jeffrey A. Tucker

Jeffrey Tucker is Founder, Author, and President at Brownstone Institute. He is also Senior Economics Columnist for Epoch Times, author of 10 books, including Life After Lockdown, and many thousands of articles in the scholarly and popular press. He speaks widely on topics of economics, technology, social philosophy, and culture.

Brownstone Institute

China Enters the Economic Doom-Loop

Published on October 6, 2024

Todayville

From the Brownstone Institute

By Peter St Onge

China is going pear-shaped as Beijing panics and wheels out the “monetary bazooka.”

Cue the Worldwide inflation.

Just a few weeks ago I did a video about how China is on the edge of recession. Weeks later, the edge of recession has now progressed to a full-blown Chinese fire drill.

So What Happened?

Last week, China’s ruling Politburo held an emergency economic meeting and decided to crank up the money printers to 11, pumping money to consumers, to banks, to property developers, basically to anybody who might spend it.

Bloomberg called it an “adrenaline shot,” as in it’ll pump assets but won’t last long.

Specifically, Beijing’s going to dump about 3.8 trillion yuan – roughly half a trillion dollars – to keep the economy running.

A trillion yuan goes to consumer subsidies, including a hundred twenty US per month child subsidy – a hundred twenty’s big in China – to bribe Chinese mothers into having more kids, which they’ve stopped doing.

Next up are the banks – as always – who get a cool hundred and forty billion US along with another 100 billion dumped into stock markets.

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Allegedly this is all to spur spending – as in the banks lend the money out and the stockholders feel rich – but it would do wonders for the gaping holes in China’s teetering financial industry.

Beyond the Money Dump

Beyond the money dump, China’s slashing interest rates across the board – which governments do to try and gin up some tissue-fire growth.

They’re slashing downpayment requirements on houses, opening a special credit facility so banks and hedge funds can gamble on stocks, and cutting the reserve requirements for banks – meaning banks can raid their vaults and go on a lending spree.

Put it together, and Beijing’s doing everything it can to get money out in the wild, down to bankrolling gamblers and pouring yet more trillions down the black hole of China’s comically over-built housing market.

You may have seen the ghost towns China’s built; here comes round two.

What Scares China

Why so desperate, you might ask?

Easy: China is panicked not only about a looming recession but that it might be falling into the Japan-style doom-loop of structural stagnation thanks to President Xi’s anti-business jihad.

The key number here is the interest rate on 30-year government bonds, which is a classic indicator of a zombie economy in the spawning.

Ominously, China’s 30-year just fell below Japan’s. Flirting with zombie territory.

What’s Next

Near-term, they’re popping the bubble in Beijing with stocks soaring.

And while 4 trillion yuan is a lot of money, this isn’t yet the Big Bang – that would be a long-rumored 10 trillion money dump by Beijing.

They’re not there yet, probably because the US and Europe haven’t hit the meat of their recessions. Debt-fueled Americans are still buying Chinese exports.

If and when that breaks down, either because Americans are out of money or Trump rolls out tariffs on China, Beijing’s up against the wall, and it will blow out into worldwide inflation.

China’s Turn for Chaos

I’ve mentioned in previous articles how if China goes down, the Chinese people won’t have a sense of humor about it. This ain’t Japan where people shake their heads and obey.

Beijing knows this, they know the kinetic history of the Chinese masses when they’re angry, and if they panic hard enough they may reach for a war to both distract the population and to clamp down on dissent.

Just this week they launched a massive military exercise in a disputed area of the South China Sea, there could be more to come.