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Brownstone Institute

Covid was Spreading Across the U.S. in 2019

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28 minute read

BY BILL RICE

If it could be proven that the virus that causes COVID-19 was spreading throughout the world by November 2019 (or even earlier), the shift in the Covid narrative might be seismic.

For example, if the virus had already infected large numbers of people, the justification for the lockdowns of mid-March 2020 to “slow or stop the spread” of a newly arrived virus would be shown to be nonsense.

Estimates of the number of people who had already developed natural immunity as well as of the infection fatality rate (IFR) might be dramatically different. It would suggest the disease was not nearly as lethal as experts proclaimed. The mass fear in the public – a prerequisite for lockdowns and later for mass vaccinations – might be much lower.

Given these points, it’s odd public health officials and investigative journalists have eschewed serious investigations that might confirm this virus had already spread around the world before January 1st, 2020.

A common-sense project to ‘prove’ early spread was occurring would be simply to test tranches of blood that were donated before the birth date of the official outbreak (December 31st 2019).

Surprisingly, however, very few antibody studies of archived blood collected before December 31st 2019 have occurred. Will Jones of The Daily Skeptic recently highlighted one such study published by researchers in France as well as a sewage study from Brazil. The first provides antibody evidence and the second RNA evidence the novel coronavirus was spreading by November 2019 in these countries.

To Will’s list, I’d add the only antibody study of archived Red Cross blood conducted by the US CDC to date. This study found 39 antibody-positive serum samples collected December 13th-16th, 2019 in California, Washington and Oregon (2% of blood samples collected from these states tested positive for antibodies).

As it takes the human body one to two weeks to produce detectable levels of antibodies, most of these 39 antibody-positive donors had been infected in November 2019 if not earlier.

For some reason, American officials performed only one antibody study of blood collected by blood bank organizations. It’s also strange that results of this study were not published until November 30th, 2020 – more than 11 months after the first tranche of archived Red Cross blood had been collected.

In a CDC press briefing held May 29th, 2020, CDC officials stated they’d searched for and could find no evidence the novel coronavirus had been “introduced” anywhere in America prior to January 20th, 2020.

I believe this statement was false, as by the time this press briefing was held, copious evidence of early spread had already been disseminated via published news accounts. For example, I’ve identified at least 17 Americans who were sick with definite Covid symptoms in November and December 2019 and all 17 had antibody evidence of prior infection. Also, all 17 of these reports were published by prominent news organizations at least 13 days before this press conference.

While a source of important evidence, antibody studies are not necessary to prove that early spread almost certainly occurred in America. Close examination of individual case histories also allows one confidently to reach this conclusion. What follows is a summary of three individual histories that lead me to conclude community spread was already occurring in America by November 2019 and probably October 2019.

For details on other American cases that date to December 2019, see this Seattle Times story and a feature story I wrote that, for some reason, was completely ignored by the mainstream press and public health officials, a fact I document in this follow-up article.

Case 1: Michael Melham of Belleville, NJ

Michael Melham, the Mayor of Belleville, NJ, was among a large group of New Jersey municipal employees who attended a conference in Atlantic City on November 19th-21st 2019. While at the conference, Melham experienced symptoms common to COVID-19.

“I was definitely feeling sick when I was there, and fought my way through it,” Mayor Melham told NJ Advance Media on April 30th, 2020.

“I have never been sicker in my entire life,” the Mayor said. “These symptoms included a 102-degree fever, chills, hallucinations and a sore throat that lasted for three weeks.” In a story published by Fox News, Mayor Melham said the illness made him feel “like a heroin addict going through withdrawals… I didn’t know what was happening to me. I never felt that I could be so sick.“

Mayor Melham felt sick enough to contact his doctor who diagnosed him with the flu. However, this diagnosis was given “over the phone” and Melham never actually received a flu test.

In late April 2020, Melham visited his doctor for his annual physical and brought up his November illness. The doctor administered an antibody test, which came back positive for Covid antibodies.

Melham later told me he actually received two positive antibody tests (previous reports mentioned just one).

“My first antibody test was a rapid test. My second was a blood test that was sent to a lab. Both were positive for the longer antibody,” Mayor Melham wrote in one email.

Mayor Melham has repeatedly made the important (if ignored) point that he tested positive for the ‘long’ (IgG) antibody. He tested negative for the IgM antibody. The presence of IgM antibodies indicate more recent infection and, per studies, these antibodies fade and are only detectable for about a month after infection.

This combination of antibody results would seem to rule out the possibility Mayor Melham experienced an asymptomatic case of Covid in the month before receiving his first antibody test. The only time Melham was sick was November 2020.

He added: “I will also tell you that since the media attention surrounding my claim, many others have come forward. I have emails from those who were actually at the same conference in Atlantic City NJ, who became just as sick as I was.”

Those who wish to gauge the credibility of the Mayor’s claims can view this four-minute YouTube interview with Mayor Melham.

I also asked Mayor Melham a question no other journalist seems to have asked him. “Did any public health official ever contact you to investigate your possible case?”

Melham’s email response: “No, nothing.”

DISCUSSION

Multiple acquaintances as well as his physician would confirm Melham was sick with symptoms common to Covid victims in November. Since he received two positive antibody tests, if the results were a false positive, he received two false positives.

As noted, Mayor Melham reports receiving emails from “multiple people… who were at the same conference who became just as sick as I was”. This would suggest the presence of community spread – a possibility which might have been confirmed if contact tracers had tested the people who’d been sick at the same conference for antibodies.

We know no public health officials contacted Mayor Melham to investigate his claim. We also know, thanks to nj.com‘s reporting, that state health officials were aware of his claim:

“Asked about the Mayor’s statements, the state health department declined comment. A spokesperson for Gov. Phil Murphy did not immediately respond to a message.”

The following points should also be emphasized. If his diagnosis had been confirmed by public health officials, Mayor Melham would have been the first known Covid case in the world, and would have been the first confirmed case in America by approximately 61 days (the first official case in America is still recorded as January 20th, 2020 – a man from Washington state who had recently returned from Wuhan).

Significantly, Mayor Melham can date the onset of his symptoms. Per numerous studies, it takes two to 14 days after infection for symptoms to manifest. This means Mayor Melham would have been infected some time between November 5th and November 19th, 2019.

Since Mayor Melham did not give the virus to himself, logic tells us the chain of transmission that ended with Michael Melham being symptomatic around November 20th, 2019 very possibly began before November 1st, 2019. This would mean that community spread was possibly occurring in New Jersey as early as October 2019.

Case 2: Uf Tukel of Delray Beach, Florida

As reported by the Palm Beach Post on May 16th, 2020:

“At least 11 people… on two small blocks alone… in a small Delray Beach (Florida) neighborhood tested positive for coronavirus antibodies in April. They felt symptoms as early as November (2019). “It didn’t have a name back then, but I have no doubt now that it was the coronavirus,” one neighbor said.”

The article names seven of these individuals and provides details and quotes about their symptoms. These seven people include Uf Tukel who was “first among (residents of the neighborhood) to feel sick in late November (2019)…  For weeks, he had body aches, a severe cough and night sweats.”

While “Tukel is reluctant to say he had the coronavirus a month before Chinese officials reported the outbreak to the World Health Organisation, ‘I had all the symptoms though,’ Tukel said.”

The same logic applied to Michael Melham’s possible case would apply to Mr. Tukel’s possible case. That is, the unknown person who infected Mr. Tukel was infected earlier than Tukel, and the unknown person who infected this person contracted the virus even earlier, suggesting early spread was also happening by some point in November, if not October, in Delray Beach, Florida.

If confirmed, Mr. Tukel’s case would indicate that American cases in November were not isolated to the state of New Jersey.

Several other points included in the Post’s coverage deserve attention.

These possible Delray Beach cases include two couples, with one spouse presumably infecting the other. One child of one of these couples became infected, providing further evidence of community spread.

According to the story, none of the individuals experienced close contacts with other non-family residents of the same neighborhood. That is, there seems to be no evidence of neighbor-to-neighbor transmission.

According to the story, “all (11 individuals) recovered and haven’t been sick since.” None of the 11 had travelled to China.

Like Michael Melham, none of these 11 people tested positive for the ‘short’ (IgM) antibodies – thus none had been recently infected.

The Post article also includes this eye-opening information: “Since March (2020) about two-fifths (approximately 200, 40%) of the 500 antibody tests taken by Xera Med (a DelRay Beach private testing lab/medical clinic) have been positive, said CEO Emily Rentz.”  The first two confirmed cases in Florida were recorded March 1st.

The following sentence from this article might be even more significant: “The lab shares its data on positive tests with the state health department, (Rentz) added.”

And from the same article: “The state wouldn’t say whether it is collecting antibody data from hospitals or private laboratories.”

The Post article referenced a May 5th article by the same newspaper:

“In Florida, health department reports show patients who eventually tested positive for the virus experienced symptoms as early as January. The Florida Department of Health hasn’t explained those potential fault lines in the state’s assertion that the first cases didn’t appear in Florida until March.”

The fact 40% of 500 antibody tests administered by the clinic between March and early May 2020 tested positive for Covid antibodies suggests infections were widespread in this community. And according to the CEO of this lab, these antibody results were being shared with Florida State Department of Health officials.

And apparently these weren’t the only positive antibody results that were being reported by testing labs. As reported in the same article:

The University of Miami, in randomly testing Miami-Dade County residents for antibodies, has found that the rate of infection could be 16 times higher than state data suggests, said Dr. Erin Kobetz, a professor and lead researcher on the project …

“Since first publishing her findings, Kobetz has heard from several people who shared experiences similar to the Tropic Isle neighbors… They described being sick in December and later testing positive for antibodies. They asked if what they’d experienced was COVID-19.”

Significantly, if we count possible December 2019 cases, Americans from five geographically-dispersed US states were featured in published articles. An unknown number of Americans who’ve never been featured in a newspaper article undoubtedly fit the same profile. If one adds this unknown number of never-identified people to the list of  known individuals, evidence the novel coronavirus was spreading widely across America in November and December 2019 becomes even more compelling.

Not every infectious disease expert agrees with the CDC’s assessment that widespread transmission did not begin until January 20th, 2020.

“It’s possible that the disease spread as early as November,” Dr. Kobetz said.

As in New Jersey, apparently no official with the Florida Department of Health contacted any of the 11 people referenced in the Post’s article. Nor have public health officials apparently followed up with Emily Renz, CEO of Xera Med, who stated approximately 200 other local residents received positive Covid antibody tests at the clinic between March and the end of April.

Ms. Renz noted that information on all of these positive test results had been forwarded to officials at the state’s health agency. Which prompts this question: How many clinics and testing labs in America also forwarded positive antibody test results to state health agencies, agencies which presumably could and would pass this information along to their colleagues at the CDC or NIH?

What the public doesn’t know but should is how many other Americans – those with lab results not reported in the press – also tested positive for antibodies between March and early May 2020. Presumably, the CDC and state and local health agencies have these data, which have never been released to the public. 

Indeed, I’ve come to believe it’s possible at least some high-ranking officials may have conspired to suppress antibody results which, if published, might have led the public to conclude this virus was spreading widely months before officials said it had been introduced in this country. Such knowledge might have changed the way tens of millions of Americans evaluated their personal Covid risk as well as their support for lockdowns.

Case 3: Shane from Marin County, California

Perhaps the first early case in America (with antibody evidence that would confirm infection) is Shane of Marin County, California. Shane’s possible early case was not featured in a newspaper article, but by Shane himself in the reader comments section that followed a May 7th 2020 New York Times story (the story describes symptoms experienced by Covid patients).

Writes Shane: “I had COVID-19 last fall, far earlier than anyone else I’ve heard of. I suspect I caught it while on an overseas trip to Italy and the Middle East – I’ve taken two antibody tests in the past month, both of which confirmed I was infected.”

As Shane recounts, he was extremely sick with signature Covid symptoms.

“For me the worst symptom by far was the dry, unproductive cough. The cough was so intense, so relentless, it left me with bruised ribs and a horrible searing pain in my chest, which also felt as if someone were sitting on it. The fever at one point reached 104.9 upon which I began hallucinating – seeing my dogs talking to me and forgetting how to open a sliding glass door. Horrible chills which led to my teeth chattering so hard my jaw ached were also another noxious gift of Covid.

“What I most remember about my experience with Covid is pain, pain from coughing, pain in my body and head, pain everywhere around me, like a smothering red blanket. At times I felt I was going to die during that week and even today I must admit I am surprised I didn’t.”

Adding credibility to his claim, Shane’s post cited two labs where he claims to have received his positive antibody tests.

“The local health centre in West Marin is where I took the latest one. The other one I took directly at the manufacturer’s location – ARCpoint Labs in RichmondThat one is only 87% accurate and not FDA approved so that’s why I took the more recent one, which was done through Quest Labs I believe.”

In the comment thread, one poster suggests it’s unlikely Shane developed Covid as there had been no reported confirmed cases from that time. This poster opines that Shane was sick with some other nasty virus and later developed an asymptomatic case of Covid. However, Shane stuck to his theory and presented reasons for his opinion.

“I suppose it’s possible but I tend to think that since what I contracted had the exact same symptoms as COVID-19 – that COVID-19 is what I had. In addition, mid-February through mid-March I was in isolation, caring for my sister who died mid-March from metastatic cervical cancer. When COVID-19 made its first appearance in the U.S. in February we very quickly put in strict isolation protocols as my sister had a compromised immune system due to chemotherapy, further insulating myself from contact and infection as well.”

Shane does not report what month he thinks he had Covid – only that it was “last fall… and far earlier than anyone else I’ve heard.” He could have been sick in November or October (maybe even late September). Shane (if he really had Covid) contracted the virus from an unknown person who would have been infected earlier than him.

Shane shared his belief he might have contracted the virus in Italy or in the Middle East, which, if true, would provide more evidence of early global spread. However, it’s also possible he contracted the virus in California.

Shane’s claim was posted in the moderated New York Times’ comments section, meaning one or more Times employees were aware of Shane’s startling claim. I imagine any Covid article, including the popular reader comments,  published by the New York Times was also read by at least some employees of the CDC, NIH etc.

As only paid subscribers can make comments in the New York Times comment section, the newspaper possesses Shane’s subscription information. That is, someone at the newspaper could have easily ascertained Shane’s full name and contact information, including his street and email address.

For what it’s worth, I contacted the NY Times via its news tip email address and suggested a reporter follow up on Shane’s eye-opening claim. I did not receive a reply. This leads me to believe the New York Times is not interested in pursuing evidence of early spread in America, even in the case of a person who very well could be the first known Covid case in the world.

Conclusion

At least three Americans (either known, or in Shane’s case, easily identifiable if effort was made) possessed antibody evidence of Covid in November 2019. The infection chain that ultimately produced these symptomatic individuals likely traces to October 2019. Of note, two of these individuals received two positive antibody tests, making a false positive explanation far less likely. These cases occurred not in one state, but three states (New Jersey, Florida and California). Americans from at least 12 US states had antibody evidence of infection prior to mid-January 2020.

As far as I know, none of these 123 Americans (17 Americans identified in press reports and 106 in the Red Cross antibody study) had travelled to China. All 123 are either known or could be identified. (For unstated reasons, the CDC did not interview any of the 106 Americans who provided positive blood samples to the Red Cross.) The figure 123 does not include the unknown individuals who infected these Americans, nor does it include the possible cases that never became known to reporters or the public.

This antibody evidence strongly suggests the novel coronavirus was being transmitted person-to-person throughout the United States well before January 1st, 2020, and was probably occurring by October 2019.

If certain officials concealed this truth or were simply too incompetent to figure it out, any trust placed in such authorities is undermined.  The above information also suggests that officials are not interested in conducting serious investigations into early spread of the virus, prompting a skeptic to wonder why this might be the case.

My hope is that journalists with more resources than myself, as well as officials and scientists, will belatedly and seriously investigate the strangely-ignored evidence of early spread.

This story also appeared in The Daily Skeptic.

Author

  • Bill Rice, Jr. is a freelance journalist in Troy, Alabama.

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Brownstone Institute

Deborah Birx Gets Her Close-Up

Published on

From the Brownstone Institute

BY Bill RiceBILL RICE 

According to Birx, she intentionally buried the more draconian elements of the lockdowns in text at the end of long documents, theorizing (correctly apparently) that most reporters or readers would just “skim” the document and would not focus on how extreme and unprecedented these mandates actually were.

Most Americans will remember Dr. Deborah Birx as the “scarf lady” who served on the White House’s Covid Response Team beginning in February 2020.

According to a recently-released (but little-seen) 24-minute mini-documentary, it was Birx – even more so than Anthony Fauci – who was responsible for government “guidelines,” almost all of which proved to be unnecessary and disastrous for the country.

According to the documentary, the guidelines ran counter to President Trump’s initial comments on Covid, but ultimately “toppled the White House (and Trump) without a shot being fired.”

The mini-documentary (“It Wasn’t Fauci: How the Deep State Really Played Trump”) was produced by Good Kid Productions. Not surprisingly, the scathing 24-minute video has received relatively few views on YouTube (only 46,500 since it was published 40 days ago on Feb. 26).

I learned of the documentary from a colleague at Brownstone Institute, who added his opinion that “Birx (is) far more culpable than Fauci in the Covid disaster…Well worth the time to see the damage an utter non-scientist, CIA-connected, bureaucrat can do to make sure things are maximally bad.”

I agree; the significant role played by Birx in the catastrophic national response to Covid has not received nearly enough attention.

Brought in from out of Nowhere…

From the video presentation, viewers learn that Birx was added to the White House’s Coronavirus Task Force as its coordinator in latter February 2020.

Birx worked closely with Task Force chairman Vice President Mike Pence, a man one suspects will not be treated well by future historians.

According to the documentary, “career bureaucrats” like Birx somehow seized control of the executive branch of government and were able to issue orders to mayors and governors which effectively “shut down the country.”

These bureaucrats were often incompetent in their prior jobs as was Birx, who’d previously served as a scientist (ha!) in the Army before leading the government’s effort to “fight AIDS in Africa” (via the PEPFAR Program).

When Birx was installed as coordinator of Covid Response she simply rehashed her own playbook for fighting AIDS in Africa, say the filmmakers.

The three tenets of this response were:

  1. “Treat every case of this virus as a killer.”
  2. “Focus on children,” who, the public was told, were being infected and hospitalized in large numbers and were a main conduit for spreading the virus.
  3. “Get to zero cases as soon as possible.” (The “Zero Covid” goal).

The documentary primarily uses quotes from Scott Atlas, the White House Task Force’s one skeptic, to show that all three tenets were false.

Argued Atlas: Covid was not a killer – or a genuine mortality risk – to “99.95 percent” of the population. Children had virtually zero risk of death or hospitalization from Covid. And there was no way to get to “zero cases.”

Atlas Didn’t Shrug, but was Ignored…

Furthermore, the documentary convincingly illustrates how the views of Atlas were ignored and how, at some point, his ability to speak to the press was curtailed or eliminated.

For example, when Atlas organized a meeting for President Trump with Covid-response skeptics (including the authors of the Great Barrington Declaration) this meeting was schedule to last only five minutes.

The documentary also presents a report from the inspector general of the Department of State that was highly critical of Birx’s management style with the African “AIDS relief” program she headed.

Among other claims, the report said she was “dictatorial” in her dealings with subordinates and often “issued threats” to those who disagreed with her approach.

Shockingly, this highly-critical report was published just a month before she was appointed medical coordinator of the Coronavirus Task Force.

A particularly distressing sound bite from Birx lets viewers hear her opinion on how controversial “guidance” might be implemented with little pushback.

According to Birx, she intentionally buried the more draconian elements of the lockdowns in text at the end of long documents, theorizing (correctly apparently) that most reporters or readers would just “skim” the document and would not focus on how extreme and unprecedented these mandates actually were.

The documentary points out that Birx’s prescriptions and those of President Trump were often in complete conflict.

Birx, according to the documentary, once pointed this out to Vice President Pence, who told her to keep doing what she believed.

Indeed, the Vice President gave Birx full use of Air Force 2 so she could more easily travel across the country, spreading her lockdown message to governors, mayors, and other influencers.

Several Covid skeptic writers, including Jeffrey Tucker of Brownstone Institute, have noted that President Trump himself went from an opponent of draconian lockdowns to an avid supporter of these responses in a period of just one or two days (the pivotal change happened on or around March 10th, 2020, according to Tucker).

Whoever or whatever caused this change in position, it does not seem to be a coincidence that this about-face happened shortly after Birx – a former military officer – was named to an important position on the Task Force.

(Personally, I don’t give Anthony Fauci a pass as I’ve always figured he’s a “dark master” at manipulating members of the science/medical/government complex to achieve his own desired results.)

This documentary highlights the crucial role played by Deborah Birx and, more generally, how unknown bureaucrats can make decisions that turn the world upside-down.

That is, most Americans probably think presidents are in charge, but, often, they’re really not. These real rulers of society, one suspects, would include members of the so-called Deep State, who have no doubt installed sycophants like Fauci and Birx in positions of power.

I definitely recommend this 24-minute video.

A Sample of Reader Comments…

I also enjoyed the Reader Comments that followed this video. The first comment is from my Brownstone colleague who brought this documentary to my attention:

“… As I said, things can change over the period of 20 years but in the case of Birx/Fauci, I do not believe so. I have never seen people entrenched in the bureaucracy change.”

Other comments from the people who have viewed the mini-documentary on YouTube:

“Pence needs to be held accountable.”

“What does Debbie’s bank account look like?”

“(The) final assessment of President Trump at the 23:30 mark is, while painful, accurate. He got rolled.”

“This is very hard to find on YouTube. You can literally search the title and it doesn’t come up.”

“Excellent summary, hope this goes viral. Lots of lessons to learn for future generations.”

“Eye opening. Great reporting.”

Post from One Month Ago…

“37 likes after 3 years of the most controversial and divisive action in recent history. How can this be?”

“Oh never mind. YouTube hid it from the public for years.”

“Probably hasn’t been taken down yet for that reason, relatively low views.”

“Thanks for this! Sounds like everyone below President Trump was on a power trip and I didn’t think it was possible to despise Pence more than I already do.”

“…the backing of CDC, legacy media, WHO and government schools, business folding in fear are ALL responsible. Accountability for every person and agency is paramount!”

“Should be noted that her work on AIDS in Africa was just as useless and damaging.”

“First, any mature, adult woman who speaks with that much vocal fry should be immediately suspect. And the glee with which she recounts her role at undermining POTUS is remarkable and repulsive. This woman should NEVER be allowed to operate the levers of power again.”

Republished from the author’s Substack

Author

  • Bill Rice

    Bill Rice, Jr. is a freelance journalist in Troy, Alabama.

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Brownstone Institute

Justices’ Grave Error in Murthy v. Missouri

Published on

From the Brownstone Institute

BY Aaron KheriatyAARON KHERIATY 

Along with my co-plaintiffs, I was at the Supreme Court last week for oral arguments in our Murthy v. Missouri case, in which we are challenging the federal government’s alleged censorship on social media. The Supreme Court will likely rule in June whether to uphold, modify, or strike down the Fifth Circuit Court of Appeals’ injunction against five federal agencies, in what, the district court judge wrote, “arguably involves the most massive attack against free speech in United States’ history.”

At the hearing, Justice Samuel Alito pointed out that emails between the White House and Facebook “showed constant pestering of Facebook.” He went on to comment, “I cannot imagine federal officials taking this approach to the print media…It’s treating these platforms like subordinates.” He then asked the government’s attorney, “Would you treat the New York Times or the Wall Street Journal this way? Do you think the print media considers themselves ‘partners’ with government? I can’t imagine the federal government doing that to them.”

The government’s attorney had to admit, “The anger is unusual” — referring to White House official Rob Flaherty literally cursing at a Facebook executive and berating him for not taking action quickly enough to comply with the government’s censorship demands.

Justice Brett Kavanaugh followed up, asking, “On the anger point, do you think federal government officials regularly call up journalists and berate them?” It’s worth recalling that Kavanaugh worked as a White House attorney before he was appointed to the court, as did Justices John Roberts and Elena Kagan. No doubt there were times they dialed a journalist or editor to try to convince them to change a story, clarify a factual assertion, or even hold or quash the publication of a piece. Kavanaugh admitted, “It’s not unusual for the government to claim national security or wartime necessity to suppress a story.”

Perhaps colorful language is sometimes used in these conversations, as Kavanaugh himself hinted. Kagan concurred: “Like Justice Kavanaugh, I have had some experience encouraging the press to suppress its own speech…This happens literally thousands of times a day in the federal government.” With a wink to the other former executive branch attorneys on the bench, Roberts quipped, “I have no experience coercing anyone,” which generated a rare chuckle from the bench and audience.

This analogy to government interactions with print media, however, does not hold in the case of the government’s relationship with social mediaThere are several crucial differences that profoundly change the power dynamic of those interactions in ways directly relevant to our case. These differences facilitate, in Alito’s words, the government treating the platforms like subordinates in ways that would be impossible with print media.

Behind the Scenes

First, when a government official contacts a newspaper, he is talking directly to the journalist or editor — the person whose speech he is trying to alter or curtail. The writer or editor has the freedom to say, “I see your point, so I’ll hold my story for one week to allow the CIA time to get their spies out of Afghanistan.” But the speaker also has the freedom to say, “Nice try, but I’m not persuaded I got the facts wrong on this, so I’m running the story.” The publisher here has the power, and there is little the government can do to threaten that power.

By contrast, with requests or demands for social media censorship, the government was never talking with the person whose speech was censored, but with a third party operating entirely behind the scenes. As my co-plaintiff, the eminent epidemiologist Dr. Martin Kulldorff, quipped, “I would have been happy to get a call from a government official and hear about why I should take down a post or change my views on the scientific evidence.”

Power Dynamic

Additionally, there is little the government can do to destroy the business model and cripple the New York Times or Wall Street Journal, and the journalists and editors know this. If the government pushes too hard, it will also be front page news the next day: “Government Trying to Bully The Post to Censor Our Breaking Story,” with the lede, “Naturally, we told them to go pound sand.”

But the power dynamic is entirely different with Facebook, Google, and X (formerly Twitter): The government does have a sword of Damocles to hang over the head of noncompliant social media companies if they refuse to censor — in fact, several swords, including the threat to remove Section 230 liability protections, which Facebook founder Mark Zuckerberg has accurately called an “existential threat” to their business, or threats to break up their monopolies. As the record in our lawsuit shows, the government explicitly made just such threats, even publicly on several occasions, in direct connection to their censorship demands.

Furthermore, unlike the major tech companies, newspapers or magazines do not have massive government contracts that might disappear if they refuse to comply. When the FBI or Department of Homeland Security calls Facebook or X with censorship demands, the corporate executives know that a weaponized agency has the power to launch frivolous but onerous investigations at any time. It thus becomes virtually impossible for social media companies to tell the government to take a hike — indeed, they may have a fiduciary duty to shareholders not to incur serious risks by resisting government pressure.

The text of the First Amendment doesn’t say the government shall not “prevent” or “forbid” free speech; it says the government shall not “abridge” free speech — i.e., shall not do anything to lesson a citizen’s ability to speak or diminish one’s potential reach. A sensible and clear injunction would simply state, “Government shall not request that social media companies remove or suppress legal speech.”

But if the justices want to distinguish between persuasion and coercion in the injunction, they need to appreciate that social media companies operate in a very different relationship with government than traditional print media. These asymmetrical power dynamics create a relationship ripe for unconstitutional government coercion.

Republished from The Federalist

Author

  • Aaron Kheriaty

    Aaron Kheriaty, Senior Brownstone Institute Counselor, is a Scholar at the Ethics and Public Policy Center, DC. He is a former Professor of Psychiatry at the University of California at Irvine School of Medicine, where he was the director of Medical Ethics.

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