Justices’ Grave Error in Murthy v. Missouri

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 media. There 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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Brownstone Institute

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.