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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

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  • 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

Freedumb, You Say?

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From the Brownstone Institute

By Gabrielle Bauer 

“Authorities have attacked, detained, prosecuted, and in some cases killed critics, broken up peaceful protests, closed media outlets, and enacted vague laws criminalizing speech that they claim threatens public health”

Didn’t give much thought to freedom until four years ago, at age 63. Freedom was just there, like the water surrounding a goldfish. And then the Covid-19 pandemic blew in, the world locked down, and admonitions to “stay the ‘$^#&’ home” blazed through social media. No freedom was too important to discard in the name of public safety: jobs, family businesses, artistic endeavours, public meetings, social connections that kept despair at bay, all took a backseat to the grim business of saving grandma (who ended up getting Covid anyway). No discussion of moral or practical trade-offs, no pushback from the press, nothing. It felt wrong to me on a cellular level.

Apparently I was the only one in my middle-class liberal circle to harbour misgivings about this astonishing new world. If I tried, ever so timidly, to articulate my concerns on Facebook or Twitter, the online warriors shot back with a string of epithets. “Go lick a pole and catch the virus,” said one. “Crawl back into your cave, troglodyte,” said another. And my all-time favourite: “You’re nothing but a mouth-breathing Trumptard.”

From the get-go, I perceived Covid as more of a philosophical problem than a scientific one. As I wrote on more than one occasion, science can inform our decisions, but not dictate them. What ultimately powers our choices are the values we hold. I saw Covid as a morality play, with freedom and safety cast as the duelling protagonists, and it looked like safety was skipping to an easy victory.

It was a heady time for the health bureaucrats, whose increasingly arcane rules betrayed a naked impulse to control: the Canadian high-school students required to use masks on both their faces and their wind instruments during band practice, the schoolchildren forced (for hygiene reasons) to study on their knees for hours in an Alaska classroom, the “glory-hole” sex advised by the British Columbia Centre for Disease Control. The lack of public pushback against these absurdities heightened my awareness of the fragility of our freedoms.

One of the earliest memes to surface during the pandemic was “muh freedumb.” The locution became a shorthand for a stock character – a tattooed man wearing camo gear and a baseball cap, spewing viral particles while yelling about his rights. A selfish idiot. The memes kept coming: “Warning, cliff ahead: keep driving, freedom fighter.” “Personal freedom is the preoccupation of adult children.” Freedom, for centuries an aspiration of democratic societies, turned into a laughing stock.

Eventually, pro-freedom voices began trickling into the public arena. I wasn’t alone, after all. There were others who understood, in the words of Telegraph writer Janet Daley, that the institutional response to Covid-19 had steamrolled over “the dimension of human experience which gives meaning and value to private life.” Lionel Shriver decried how “across the Western world, freedoms that citizens took for granted seven months ago have been revoked at a stroke.” And Laura Dodsworth brought tears to my eyes when she wrote, in her 2021 book A State of Fear, that she feared authoritarianism more than death.

Once the vaccines rolled out, the war on freedom of conscience went nuclear. If you breathed a word against the products, or even the mandates, you were “literally killing people.” The hostility towards the “unvaxxed” culminated in a Toronto Star front page showcasing public vitriol, splashed with such sentiments as: “I honestly don’t care if they die from Covid. Not even a little bit.”

This, too, felt viscerally wrong. I knew several people who had refused the vaccine, and they all had well-articulated reasons for their stance. If they didn’t fully trust the “safe and effective” bromide recycled by all government and pharmaceutical industry spokespeople, I could hardly blame them. (And I say this as someone who writes for Big Pharma and got five Covid shots.)

One of the most deplorable casualties of Covid culture was freedom of expression, a core principle in the United Nations’ Universal Declaration of Human Rights. Experts speaking publicly about the harms of lockdown faced systematic ostracism from mainstream media, especially left-wing news outlets. By early 2021, Human Rights Watch estimated that at least 83 governments worldwide had used the Covid-19 pandemic to violate the lawful exercise of free speech and peaceful assembly.

“Authorities have attacked, detained, prosecuted, and in some cases killed critics, broken up peaceful protests, closed media outlets, and enacted vague laws criminalizing speech that they claim threatens public health,” the group wrote in a media release. “The victims include journalists, activists, healthcare workers, political opposition groups, and others who have criticized government responses to the coronavirus.”

But what about misinformation? Doesn’t it kill people? Newsflash: misinformation has always existed, even before TikTok. It’s up to each of us to sift the credible folks from the cranks. The best defence against misinformation is better information, and it’s the policy wonks’ job to provide it. Modern science itself depends on this tug-of-war of ideas, which filters out weaker hypotheses and moves stronger ones ahead for further testing.

Besides, misinformation comes not just from cranks, but from “official sources” – especially those tasked with persuading the public, rather than informing it. Remember when Rochelle Walensky, former director of the Centers for Disease Control and Prevention in the US, asserted that “vaccinated people do not carry the virus?” Or when Anthony Fauci maintained that getting vaccinated makes you a “dead end” in the chain of transmission? I rest my case.

The marketplace of ideas is like a souk, with a lot of hollering and arguing and the odd snatched purse – and that’s exactly how it should be. It’s an ingenious and irreplaceable process for getting to the truth. There are few ideas too sacrosanct to question or too ridiculous to consider. That’s why, unlike just about everyone in my left-leaning circle, I take no issue with Elon Musk’s shakedown of the old Twitter, now the Wild West of X.

Under Musk’s algorithms, my feed has become a true philosophical souk, with wildly disparate views smashing into each other, leaving me to sift through the rubble in search of a gold nugget or two. Love him or hate him, Musk offers a much-needed counterweight to the ideological lockstep in much of the mainstream media. And when it comes to free speech, Musk has put his money where his mouth is: when media personality Keith Olbermann recently hopped on X, where he boasts a million followers, to call for Musk’s arrest and detainment, Musk made no move to censor him. Works for me.

While the “old normal” has thankfully returned to our daily lives, save the odd mask in a shopping mall or subway car, the stench of censorship that blew in with the pandemic has yet to dissipate. An obsession with disinformation permeates the zeitgeist, spurring lawmakers in several Western countries to censor the flow of thoughts and ideas that gives a free society its pulse.

We cannot excise personal freedom from a democratic society, even in the interests of the “public good,” without poisoning the roots of democracy itself. Article 3 of UNESCO’s 2005 Universal Declaration of Bioethics and Human Rights states this plainly: “The interests and welfare of the individual should have priority over the sole interest of science or society.” In our post-pandemic reality, the statement seems almost quaint. Nonetheless, it expresses an enduring truth: that a democracy must never discard the idea of freedom – even in a pandemic.

Freedom desperately needs a comeback from its current incarnation as an expendable frill. In my own small way I’m trying to make this happen: never much of an activist before Covid, I’m now part of a small group preparing to launch a Free Speech Union in Canada, modelled after the highly successful one in the UK. The organisation will offer legal advice to individuals facing censorship, cancellation, or job loss because of their words. I look forward to supporting people caught in this anti-freedom web, including those whose words I heartily disagree with.

My newfound respect for free speech is also what propels me to keep talking about Covid. The response to the pandemic exceeded the bounds of public health, and we need to expose the forces that drove it. Here’s Daley again: “The world went crazy. There is no other way to account for what was an almost nihilistic dismantling not just of particular liberties and rights, but of the very idea of liberty.” We can’t let it happen again.

Republished from Perspective Media

Author

Gabrielle Bauer is a Toronto health and medical writer who has won six national awards for her magazine journalism. She has written three books: Tokyo, My Everest, co-winner of the Canada-Japan Book Prize, Waltzing The Tango, finalist in the Edna Staebler creative nonfiction award, and most recently, the pandemic book BLINDSIGHT IS 2020, published by the Brownstone Institute in 2023

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Brownstone Institute

Congressional Committee Condemns (Nearly) Every Feature of the Covid Response

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From the Brownstone Institute

By Jeffrey A Tucker Jeffrey A. Tucker  

The conclusion of the report: nothing worked and everything tried resulted in more damage than the pandemic could ever have achieved on its own. In this sense, and given the low bar of expectations for all such political commissions, every champion of truth, honesty, and freedom should celebrate this report.

Are there words in the English language that fully describe what happened during the Covid years that are not already overused? Calamity comes to mind. Disaster. Cataclysm. Ruin, devastation, catastrophe, unprecedented debacle, fiasco, and utter wreckage – all fine words and phrases but nothing quite captures it.

Given that, there is probably no report on the thing that can properly characterize the whole of it. On the other hand, it’s worth trying.

Meanwhile, the results of Covid commissions of governments around the world have become unbearably predictable. So far they have mostly said their government failed because they didn’t act fast enough, did not enforce lockdowns hard enough, did not communicate and coordinate well enough, and so on.

Everyone in the corporate world knows that when a committee reduces all problems to “communication and coordination” you are being fed a load of bull.

So far, it’s been almost entirely bureaucratic blather, and that helps account for the global loss of confidence in political systems. They cannot even be honest about the most catastrophic policies in our lifetimes or several.

The amount of corruption, waste, and destruction from this period of our lives, lasting from 2020 until 2023 but with remnants of bad policies all around us, is so unspeakable that not one report has yet been fully honest about what happened, why it happened, who really won and lost, and what this period implies for how vast swaths of the public see the world.

Among other astonishing revelations to come from this period was a full presentation of just how many institutions have been corrupted. It was not just governments and certainly not just the elected leaders and career bureaucrats. The problems are very deep and reach more deeply to intelligence agencies, military-based bioweapons systems, and preparedness agencies that guard their activities under the cloak of what is called classified.

This is a major reason why so many questions are being left unasked and unanswered. Then we have the ancillary failures in a whole series of additional sectors. The media went along with the nonsense as if they are wholly owned and controlled by government and industry. Industry mostly went along too, at least the highest reaches of it, even as small business was crushed.

The tech companies cooperated in a massive censorship operation. The retail end of the pharmaceutical companies enforced the government’s edicts, denying people basic medicines, as did the whole of the medical systems, which heavily enforced mandates on an experimental and failed product mistakenly called a vaccine. Academics were largely silent and public intellectuals fell in line. Most mainline religions cooperated in locking worshippers out. Banks were in on it too. And advertisers.

In fact, it’s hard to think of any institution in society that leaves this period untarnished. It’s probably not possible for a government report on the subject to be fully honest. Maybe it is too soon, plus the hooks that created the whole problem are still embedded too deeply.

All that said, we’ve got a solid start with the highest-level government report produced to date: After Action Review of the Covid-19 Pandemic: The Lessons Learned and a Path Forward, by the Select Subcommittee on the Coronavirus Pandemic as assembled by the US House of Representatives. The report was written by the majority and it shows.

Coming in at 550 pages with 2,000-plus footnotes (we have made a physical version available here), the preparation involved hearing from hundreds of witnesses, reading thousands of documents, listening to thousands of reports and interviews, and working at a furious pace for two years. Based on the outline and breadcrumbs of the Norfolk Group, while adding in additional material based on critiques of media and economic policy, it is a comprehensive blast against the public-health features of the pandemic response.

The conclusion of the report: nothing worked and everything tried resulted in more damage than the pandemic could ever have achieved on its own. In this sense, and given the low bar of expectations for all such political commissions, every champion of truth, honesty, and freedom should celebrate this report. It is an excellent breaking of the ice around the topic. Note that this report has received very little press attention, which only further underscores the problem.

Coming in for heavy criticism: gain-of-function research, the deference to the WHO, the lab-leak coverup, the funding of pharma cutouts, business and school closures, mask mandates, the lack of serious attention to disease monitoring, vaccine mandates, the sloppy approval process, the vaccine injury system, the banning of off-the-shelf therapeutics, social distancing, the rampant fraud in business loans, the effects of monetary policy, and more.

The report contains nuggets that we cannot help but praise:

Ignored in the report: the rental moratorium, the frenzy of Plexiglas and air filtration, the push for sanitizing all things, the reopening racket designed to prolong lockdowns, domestic capacity restrictions, the division of the workforce between essential and nonessential, the role of CISA and the intelligence agencies, the CDC’s push for mail-in ballots that might have been decisive in the national election, and the astonishing gibberish over the infection fatality and case fatality rates.

There is so much more to chronicle and criticize that the report could have been 10 or 100 times as long.

To be sure, the report has plenty of problems aside from these exclusions. Operation Warp Speed comes in for praise for saving “millions” of lives but the citation is to a modeling exercise that assumes what it is trying to prove. Look at the footnote: It’s bad science.

The real trouble with this section is not even its incorrect claim that the vaccine saved lives. The core issue is that the whole point of the lockdowns and all that followed was to create conditions for the release of the countermeasure. The plan from the beginning was: lockdown until vaccination. Praising the goal while criticizing the ineffective means diverts the point.

This is precisely what was explained to me in the early days in a phone call from a member of George W. Bush’s biosecurity team, a man who now runs a vaccine company. He said we would stay locked down until the world’s population got a shot in the arm. This phone call happened in April 2020.

Quite simply, I thought he had lost his mind and hung up. I did not believe that 1) the plan was always to stay in lockdowns until vaccination, and that 2) anyone seriously believed that governments could vaccinate their way out of a wave of respiratory infections insofar as the pathogen had a zoonotic reservoir.

The very idea struck me as so preposterous that I was incredulous that an educated and responsible adult could ever advance it. And yet that was precisely the plan all along. Sometime in the last week of February 2020, a global cabal decided to pull the trigger on a worldwide campaign of shock and awe – tapping every asset in civil society for assistance – to bring about worldwide forced medicalization with a new technology.

This was never really a public health response. That was only the cover story. This was a coup against science and against democracy, for purposes of industrial and political reset, not just in one nation but all nations at once. I get it: that is an ominous statement and hard to wrap one’s brain around the whole of it. In completely ignoring this point, the Select Subcommittee has missed the forest for the trees.

Let’s attempt a different metaphor. Let’s say your car is hijacked in Manhattan and you are thrown in the backseat. The goal is to drive all the way to Los Angeles for a drug deal. You could object to the means and goal but instead you spend the entire trip complaining about potholes, reckless driving, warning of the need for an oil change, and complaining about the bad music playing on the car radio.

At the end of the trip, you put out a report to this effect. Do you think that would be strange, to wholly ignore the theft of your car and the destination and purpose of the hijacking and instead focus on all the ways in which the grand larceny could have been smoother and happier for everyone involved?

In that spirit, the Subcommittee’s separate recommendations list is weak, leaving governments wholly in charge of anything labeled a pandemic while only suggesting a more cautionary approach that takes into consideration all costs and benefits. For example, it says on travel restrictions: “It is far easier to undo the restrictions that may have been unneeded than it is to take a ‘wait and see’ approach once the unknown virus of concern has entered our borders and thoroughly spread.”

It seems like the core lesson – governments cannot be masters of the microbial kingdom and allowing them to pretend otherwise for purposes of an industrial and political reset cues up a moral hazard that is an ongoing threat to freedom and rights – is not yet learned, or even so much as admitted. We are still being invited to believe that the same people and institutions who created calamity last time should be trusted again next time.

And keep in mind: this is the best report yet issued!

My friends, we have a very long way to go to absorb the fullness of the reality of what was done to individuals, families, communities, societies, and the whole world. Nor is it truly possible to move on without a full accounting of this disaster. Has it begun? Yes, but there is a very long way to go.

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.

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