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Censorship on Trial at the Supreme Court

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From the Brownstone Institute

BY Maryanne DemasiMARYANNE DEMASI 

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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Brownstone Institute

Anthony Fauci Gets Demolished by White House in New Covid Update

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From the Brownstone Institute

By  Ian Miller 

Anthony Fauci must be furious.

He spent years proudly being the public face of the country’s response to the Covid-19 pandemic. He did, however, flip-flop on almost every major issue, seamlessly managing to shift his guidance based on current political whims and an enormous desire to coerce behavior.

Nowhere was this more obvious than his dictates on masks. If you recall, in February 2020, Fauci infamously stated on 60 Minutes that masks didn’t work. That they didn’t provide the protection people thought they did, there were gaps in the fit, and wearing masks could actually make things worse by encouraging wearers to touch their face.

Just a few months later, he did a 180, then backtracked by making up a post-hoc justification for his initial remarks. Laughably, Fauci said that he recommended against masks to protect supply for healthcare workers, as if hospitals would ever buy cloth masks on Amazon like the general public.

Later in interviews, he guaranteed that cities or states that listened to his advice would fare better than those that didn’t. Masks would limit Covid transmission so effectively, he believed, that it would be immediately obvious which states had mandates and which didn’t. It was obvious, but not in the way he expected.

And now, finally, after years of being proven wrong, the White House has officially and thoroughly rebuked Fauci in every conceivable way.

White House Covid Page Points Out Fauci’s Duplicitous Guidance

A new White House official page points out, in detail, exactly where Fauci and the public health expert class went wrong on Covid.

It starts by laying out the case for the lab-leak origin of the coronavirus, with explanations of how Fauci and his partners misled the public by obscuring information and evidence. How they used the “FOIA lady” to hide emails, used private communications to avoid scrutiny, and downplayed the conduct of EcoHealth Alliance because they helped fund it.

They roast the World Health Organization for caving to China and attempting to broaden its powers in the aftermath of “abject failure.”

“The WHO’s response to the COVID-19 pandemic was an abject failure because it caved to pressure from the Chinese Communist Party and placed China’s political interests ahead of its international duties. Further, the WHO’s newest effort to solve the problems exacerbated by the COVID-19 pandemic — via a “Pandemic Treaty” — may harm the United States,” the site reads.

Social distancing is criticized, correctly pointing out that Fauci testified that there was no scientific data or evidence to support their specific recommendations.

“The ‘6 feet apart’ social distancing recommendation — which shut down schools and small business across the country — was arbitrary and not based on science. During closed door testimony, Dr. Fauci testified that the guidance ‘sort of just appeared.’”

There’s another section demolishing the extended lockdowns that came into effect in blue states like California, Illinois, and New York. Even the initial lockdown, the “15 Days to Slow the Spread,” was a poorly reasoned policy that had no chance of working; extended closures were immensely harmful with no demonstrable benefit.

“Prolonged lockdowns caused immeasurable harm to not only the American economy, but also to the mental and physical health of Americans, with a particularly negative effect on younger citizens. Rather than prioritizing the protection of the most vulnerable populations, federal and state government policies forced millions of Americans to forgo crucial elements of a healthy and financially sound life,” it says.

Then there’s the good stuff: mask mandates. While there’s plenty more detail that could be added, it’s immensely rewarding to see, finally, the truth on an official White House website. Masks don’t work. There’s no evidence supporting mandates, and public health, especially Fauci, flip-flopped without supporting data.

“There was no conclusive evidence that masks effectively protected Americans from COVID-19. Public health officials flipped-flopped on the efficacy of masks without providing Americans scientific data — causing a massive uptick in public distrust.”

This is inarguably true. There were no new studies or data justifying the flip-flop, just wishful thinking and guessing based on results in Asia. It was an inexcusable, world-changing policy that had no basis in evidence, but was treated as equivalent to gospel truth by a willing media and left-wing politicians.

Over time, the CDC and Fauci relied on ridiculous “studies” that were quickly debunked, anecdotes, and ever-shifting goal posts. Wear one cloth mask turned to wear a surgical mask. That turned into “wear two masks,” then wear an N95, then wear two N95s.

All the while ignoring that jurisdictions that tried “high-quality” mask mandates also failed in spectacular fashion.

And that the only high-quality evidence review on masking confirmed no masks worked, even N95s, to prevent Covid transmission, as well as hearing that the CDC knew masks didn’t work anyway.

The website ends with a complete and thorough rebuke of the public health establishment and the Biden administration’s disastrous efforts to censor those who disagreed.

“Public health officials often mislead the American people through conflicting messaging, knee-jerk reactions, and a lack of transparency. Most egregiously, the federal government demonized alternative treatments and disfavored narratives, such as the lab-leak theory, in a shameful effort to coerce and control the American people’s health decisions.

When those efforts failed, the Biden Administration resorted to ‘outright censorship—coercing and colluding with the world’s largest social media companies to censor all COVID-19-related dissent.’”

About time these truths are acknowledged in a public, authoritative manner. Masks don’t work. Lockdowns don’t work. Fauci lied and helped cover up damning evidence.

If only this website had been available years ago.

Though, of course, knowing the media’s political beliefs, they’d have ignored it then, too.

Republished from the author’s Substack

Author

Ian Miller is the author of “Unmasked: The Global Failure of COVID Mask Mandates.” His work has been featured on national television broadcasts, national and international news publications and referenced in multiple best selling books covering the pandemic. He writes a Substack newsletter, also titled “Unmasked.”

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Brownstone Institute

RCMP seem more interested in House of Commons Pages than MP’s suspected of colluding with China

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From the Brownstone Institute

By Bruce Pardy 

Canadians shouldn’t have information about their wayward MPs, but the RCMP can’t have too much biometric information about regular people. It’s always a good time for a little fishing. Let’s run those prints, shall we?

Forget the members of Parliament who may have colluded with foreign governments. The real menace, the RCMP seem to think, are House of Commons pages. MPs suspected of foreign election interference should not be identified, the Mounties have insisted, but House of Commons staff must be fingerprinted. Serious threats to the country are hidden away, while innocent people are subjected to state surveillance. If you want to see how the managerial state (dys)functions, Canada is the place to be.

In June, the National Security and Intelligence Committee of Parliamentarians (NSICOP) tabled its redacted report that suggested at least 11 sitting MPs may have benefitted from foreign election interference. RCMP Commissioner Mike Duheme cautioned against releasing their identities. Canadians remained in the dark until Oct. 28 when Kevin Vuong, a former Liberal MP now sitting as an Independent, hosted a news conference to suggest who some of the parliamentarians may be. Like the RCMP, most of the country’s media didn’t seem interested.

But the RCMP are very interested in certain other things. For years, they have pushed for the federal civil service to be fingerprinted. Not just high security clearance for top-secret stuff, but across government departments. The Treasury Board adopted the standard in 2014 and the House of Commons currently requires fingerprinting for staff hired since 2017. The Senate implemented fingerprinting this year. The RCMP have claimed that the old policy of doing criminal background checks by name is obsolete and too expensive.

But stated rationales are rarely the real ones. Name-based background checks are not obsolete or expensive. Numerous police departments continue to use them. They do so, in part, because name checks do not compromise biometric privacy. Fingerprints are a form of biometric data, as unique as your DNA. Under the federal Identification of Criminals Act, you must be in custody and charged with a serious offence before law enforcement can take your prints. Canadians shouldn’t have information about their wayward MPs, but the RCMP can’t have too much biometric information about regular people. It’s always a good time for a little fishing. Let’s run those prints, shall we?

It’s designed to seem like a small deal. If House of Commons staff must give their fingerprints, that’s just a requirement of the job. Managerial bureaucracies prefer not to coerce directly but to create requirements that are “choices.” Fingerprints aren’t mandatory. You can choose to provide them or choose not to work on the Hill.

Sound familiar? That’s the way Covid vaccine mandates worked too. Vaccines were never mandatory. There were no fines or prison terms. But the alternative was to lose your job, social life, or ability to visit a dying parent. When the state controls everything, it doesn’t always need to dictate. Instead, it provides unpalatable choices and raises the stakes so that people choose correctly.

Government intrudes incrementally. Digital ID, for instance, will be offered as a convenient choice. You can, if you wish, carry your papers in the form of a QR code on your phone. Voluntary, of course. But later there will be extra hoops to jump through to apply for a driver’s licence or health card in the old form.

Eventually, analogue ID will cost more, because, after all, digital ID is more automated and cheaper to run. Some outlets will not recognize plastic identification. Eventually, the government will offer only digital ID. The old way will be discarded as antiquated and too expensive to maintain. The new regime will provide the capacity to keep tabs on people like never before. Privacy will be compromised without debate. The bureaucracy will change the landscape in the guise of practicality, convenience, and cost.

Each new round of procedures and requirements is only slightly more invasive than the last. But turn around and find you have travelled a long way from where you began. Eventually, people will need digital ID, fingerprints, DNA, vaccine records, and social credit scores to be employed. It’s not coercive, just required for the job.

Occasionally the curtain is pulled back. The federal government unleashed the Emergencies Act on the truckers and their supporters in February 2022. Jackboots in riot gear took down peaceful protesters for objecting to government policy. Authorities revealed their contempt for law-abiding but argumentative citizens. For an honest moment, the government was not incremental and insidious, but enraged and direct. When they come after you in the streets with batons, at least you can see what’s happening.

We still don’t know who colluded with China. But we can be confident that House of Commons staffers aren’t wanted for murder. The RCMP has fingerprints to prove it. Controlling the people and shielding the powerful are mandates of the modern managerial state.

Republished from the Epoch Times

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