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Court Ruling on Murthy Misses Point Entirely

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16 minute read

From the Brownstone Institute

By Thomas Buckley

The United States Supreme Court ruled, in a 6 to 3 decision, that the plaintiffs in the most important free speech case in decades did not have standing to ask for preliminary injunctive relief.

That is wrong.

In her majority opinion, Justice Amy Coney Barrett bent over sideways to avoid judging the case on its merits – the allegation is that various and sundry government agencies coerced private social media companies to remove posts and tweets and such they did not like – and focused instead on whether or not the plaintiffs had the right, or standing, to ask for and be granted such relief.

The plaintiffs, essentially, had their content throttled or removed from social media platforms at the behest of the government because they did not follow the government line on the pandemic response and election security, daring to question things like social distancing – even Dr. Anthony Fauci has admitted they just made that up – and how secure – or unsecure – a “vote-by-mail” election could possibly be.

The request before the court was to allow an injunction against a number of government agencies that barred improper communication with the social media platforms. The question of whether those agencies did in fact do that – essentially violating the First Amendment rights of the plaintiffs – does not appear at issue. As Justice Samuel Alito (joined in opposition to the ruling by Justices Clarence Thomas and Neil Gorsuch) said in his blistering dissent, that unquestionably happened.

The case, known as Murthy V. Missouri, involves two states and a number of private plaintiffs, all claiming that they were improperly censored – and thus damaged – by federal agencies and/or the dubious “cut out” front groups they created. Alito focused on one plaintiff – Jill Hines, who ran a Louisiana health-related (read pandemic response criticism) that was consistently degraded by Facebook after calls and pronouncements from the White House – in his dissent, noting that she unquestionably had standing (even Barrett admitted that plaintiff was closest, as it were), especially in light of the fact the government itself admitted the plaintiff had been damaged.

In today’s ruling, “The Court, however, shirks that duty and thus permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think,” wrote Alito. “That is regrettable. What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional (in a separate case), but it was no less coercive. And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so. Officials who read today’s decision…will get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.”

Barrett wrote that, while she was not opining on the merits of the case, the plaintiffs could not show standing to receive a preliminary injunction. Such an injunction would have immediately barred government abuse going forward, but Barrett held, basically, that just because it did happen doesn’t mean it will happen again and therefore the plaintiffs are not entitled to preliminary (or prospective) relief.

As part of her reasoning, Barrett said that social media platforms did act on their own, at least on occasion, as part of their standard “content moderation” efforts and there was little or no “traceability” back to specific government individuals showing an immediate and direct correlation between a government compliant and a private company action.

Wrong.

First, in the Hines matter, even Barrett noted there was an element of traceability (that was enough for Alito to say she unquestionably had standing to seek relief and, therefore, the case should have been decided on its merits).

Second, companies like Facebook, which in the past have paid huge fines to the government, are in a very precarious position vis-a-vis federal regulation. From “Section 230” protections – a government code that limits their exposure to civil liability when deciding to drop content – to ever-growing threats of further government intervention and potential anti-trust actions, social media companies are internally incentivized to comply with government requests.

In other words, it is not at all a coincidence that a very large percentage of social media execs are “former” government employees and elected officials.

“In sum, the officials wielded potent authority. Their communications with Facebook were virtual demands,” Alito wrote. “And Facebook’s quavering responses to those demands show that it felt a strong need to yield. For these reasons, I would hold that Hines is likely to prevail on her claim that the White House coerced Facebook into censoring her speech.”

In her ruling, Barrett made other significant errors. First, she referred to the “Election Integrity Partnership” (EIP) as a “private entity,” and therefore able to make requests of social media companies.

In fact, the EIP (a group of academic “misinformation specialists”) was morphed into existence by the Department of Homeland Security, specifically its Cybersecurity and Infrastructure Security Agency, typically known as CISA. The EIP was funded by the government, many of its workers were former (though for many, ‘former’ may be a stretch) federal security agency employees, and the EIP specifically and consistently did the bidding of CISA when asked.

For Barrett to call the EIP a “private entity” shows a complete (intentional?) misunderstanding of the legal landscape and the reality of censorship-industrial complex.

The EIP and other government-sponsored cutout groups that make up the censorship-industrial complex are as independent from the government and the deep state as a foot is independent from a leg.

Barrett also claimed that similar government activities seemed to have lessened in the recent past, making the need for the going-forward injunction unnecessary.

Such a statement is impossible to prove as being true or false – especially after today – but making the assumption that it is even vaguely true, Barrett again misses the mark. If the government is censoring less now than it did two years ago it is because of the massive amount of public attention that has been drawn to the despicable practice by the press and, to be blunt, this very lawsuit.

CISA, etc. did not wake up one morning 18 months ago and say ‘Hey, we better cool it on this” because they suddenly realized they were most likely violating the Constitution; they did so because of the public – and Congressional – pressure.

And now with at least the legal pressure lessened (and an election coming up), to believe that the activities will not increase is naïve to the point of childish – that’s why this future, going forward, prospective injunction was so important.

That didn’t stop the Biden administration from crowing and, presumably, figuring out to ramp up the program for November.

Critics of the decision were loud and voluminous. Appearing on Fox News, legal commentator Jonathan Turley said that “standing issues” are often “used to block meritorious claims” and that the government’s “censorship by surrogate makes a mockery of the First Amendment.”

“The Supreme Court’s decision,” said White House press secretary Karine Jean-Pierre, “helps ensure the Biden administration can continue our important work with technology companies to protect the safety and security of the American people.”

Matt Taibbi, one of the reporters behind the outing of the “Twitter files,” noted that KJP’s statement is astonishingly egregious, but also very telling. She essentially admits government censorship is occurring and claims it is good:

That “important work,” of course, includes White House officials sending emails to companies like Facebook, with notes saying things like ‘Wanted to flag the below tweet and am wondering if we can get moving on having it removed ASAP.’ The Supreme Court sidestepped ruling on the constitutionality of this kind of behavior in the Murthy v. Missouri case with one blunt sentence: “Neither the individual nor the state plaintiffs have established Article III standing to seek an injunction against any defendant.”

“The great War on Terror cop-out, standing — which killed cases like Clapper v. Amnesty International and ACLU v. NSA — reared its head again. In the last two decades, we’ve gotten used to the problem of legal challenges to new government programs being shot down precisely because their secret nature makes collecting evidence or showing standing or injury difficult, and Murthy proved no different.”

Dr. Jay Bhattacharya, an internationally recognized Stanford medical professor, is one of the private plaintiffs in the suit. Bhattacharya is one of the co-authors of the Great Barrington Declaration, which called for a more targeted and rational response to the pandemic response. When it comes to standing, he points directly to an email from then-National Institutes of Health Chief (Tony Fauci’s sort-of boss) Francis Collins, calling on his fellow government employees to engage in a “devastating takedown” of Bhattacharya and the Declaration itself.

Barrett wrote that “Enjoining the Government defendants, therefore, is unlikely to affect the platforms’ content-moderation decisions,” an opinion Bhattacharya was having none of.

“Unlikely to continue to be damaged?” asked Bhattacharya. “How do we know that? And now because of this ruling we have no legal protection from it happening. The court ruled that you can censor until you get caught and even then there will be no penalty.”

Because of the focus on standing, Bhattacharya likened today’s ruling to giving the go-ahead to “broadly censor ideas” as long as you make sure not to traceably censor a specific individual.

A disappointed Bhattacharya has hopes for the future – the case was, again, not decided on its merits and is simply remanded without the injunction back to federal district court in Louisiana – but thinks electeds need to pass laws to stop the censorship.

“At this point, Congress has to act and this needs to be an election issue,” Bhattacharya said.

John Vecchione, New Civil Liberties Alliance Senior Litigation Counsel and the lawyer for four of the five private individuals (including Hines and Bhattacharya) said today’s ruling was “not in accordance with the facts” of the situation.

“There is a level of unreality about this opinion,” Said Vecchione, adding that it reads like a “roadmap for government censors.”

While some in the media have tried to identify this case as having “right-wing” support, Vecchione noted it was originally filed while Donald Trump was president and therefore goes far beyond partisan politics to the heart of the rights of American citizens.

The suit, as noted, goes back to district court and Vecchione says they will continue to gather facts and depositions and even more specific instances of “traceability” – he says they already have enough, but Barrett did not agree – and keep working it through the courts. He said he expects to be back at the Supreme Court sometime in – hopefully – the near future.

“Meanwhile, any government agency, any administration can censor any message they don’t like,” Vecchione said.

And no matter a person’s politics, that is just plain wrong.

Or as Justice Alito wrote:

“For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech. Because the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent.”

Republished from the author’s Substack

Author

Thomas Buckley is the former mayor of Lake Elsinore, Cal. a Senior Fellow at the California Policy Center, and a former newspaper reporter.  He is currently the operator of a small communications and planning consultancy and can be reached directly at [email protected]. You can read more of his work at his Substack page.

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Employee wins lawsuit filed by gov’t agency after losing job for refusing COVID shot

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From LifeSiteNews

By Emily Mangiaracina

The federal government successfully sued on her behalf, citing a Title VII violation.

A former assistant manager who was fired after applying for a religious accommodation to refuse the COVID shot has been awarded a six-figure payout after a federal government agency filed a lawsuit on the employee’s behalf.

Federal Judge M. Casey Rodgers on Thursday ordered the Pensacola, Florida store Hank’s Fine Furniture (HFI) to pay a former manager, identified in the lawsuit as “K.M.O.,” $110,000 for refusing to accommodate her request for exemption from the COVID shot due to her “sincerely held Christian beliefs.”

“HFI is permanently enjoined from discriminating against any employee on the basis of religion in violation of Title VII,” Rodgers wrote, the Pensacola News Journal reported Monday. He further declared that HFI “will reasonably accommodate employee and prospective employee religious beliefs during all hiring, discipline and promotion activities,” and “any activity affecting any other terms and conditions of employment.”

Significantly, the store also “cannot require proof that an employee’s or applicant’s religious objection to an employer requirement be an official tenet or endorsed teaching of said religious belief,” according to Pensacola News Journal.

Hank’s Furniture must also adopt a written policy, disseminated to all employees, declaring that HFI “will not require any employee to violate sincerely held religious beliefs, including those pertaining to vaccinations, as a condition of his/her employment.”

The U.S. Equal Employment Opportunity Commission (EEOC) sued on behalf of K.M.O. (EEOC v. Hank’s Furniture, Inc., Case No. 3:23-cv-24533-MCR-HTC) in the U.S. District Court for the Northern District of Florida after it was unable to reach a pre-litigation settlement “through its administrative conciliation process.”

According to Pensacola News Journal, about two weeks after HFI implemented a policy mandating that its employees receive a COVID shot, K.M.O. told the company she would not get the shot due to her “sincerely held religious beliefs,” and then requested a religious exemption.

According to the lawsuit, HFI ignored her request and asked if she would comply with their COVID shot policy, and K.M.O. then told HFI she planned to submit a written religious accommodation request, asking “whether HFI had a particular form she should use.”

HFI reportedly did not respond to her request. When K.M.O. complained that HFI’s unwillingness to grant her a religious exemption was “unjust,” her new supervisor reportedly told her that “HFI did not care why she would not take” the COVID shot and that HFI “would never grant an accommodation.”

When K.M.O. emailed HMI on September 6, 2021, asking for the status of her religious exemption request, HFI informed her that her religious exemption request was “severely lacking,” and then denied it.

K.M.O. then “asked for help to submit an acceptable religious exemption request,” but HFI refused to discuss any accommodation, according to the lawsuit. Then on October 31, she was fired by HFI because she did not comply with their COVID “vaccination” policy.

Birmingham District Director Bradley Anderson remarked regarding the case for an EEOC press release, “Employees should not have to renounce their religious beliefs in order to remain employed. Let this case serve as a reminder that employers should afford accommodation for religious beliefs unless doing so would cause an undue hardship.”

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Undue Censorship Still Skews COVID Treatments

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From the Frontier Centre for Public Policy

By Lee Harding

The censorship and institutional capture evident in the pandemic should be an ongoing concern for policy-makers, scientists, and the medical field. Someone who encountered this first-hand was clinical trials researcher Sabine Hazan, who testified to the National Citizens Inquiry on COVID-19.

Hazan, the CEO and principal investigator at Venture Clinical Trials is also the founder and CEO of Progena Biome, a genetic sequencing lab. Starting in 2020, she subjected stool samples of COVID-19 patients’ to next-generation sequencing (NGS) of the entire genome of the virus.

It wasn’t long before the tests, which were $3,000 each, showed the virus mutating into four different spike proteins. Patients had anywhere from one to all of them.

“‘How is the vaccine going to work if the spike protein itself is mutating into multiple combinations?’” she asked herself.

“Vaccinating against viruses is not a really a good idea because unfortunately, viruses mutate more than bacteria.”

Hazan was curious about three cases where the virus had completely disappeared by day five. Two of these patients said they had been taking hydroxychloroquine and azithromycin.

On April 2, 2020, Hazan submitted a protocol to treat COVID-19 consisting of hydroxychloroquine, azithromycin, vitamins C, D, and zinc. The Food and Drug Administration (FDA) approved a request to do clinical trials within 24 hours, yet Facebook, Twitter, and Instagram blocked her advertisements for patients.

The few patients Hazan could recruit faced another hurdle as medical authorities warned pharmacists not to prescribe hydroxychloroquine and azithromycin together because of cardiac problems. Her monitoring of patients never revealed such problems.

“These drugs have been given to millions of people with arthritis, and all of a sudden, they’re bad?” she asked.

In the first 16 of 17 patients, the virus disappeared from stool samples between 5 to 8 days after being on the regimen. Hazan applied for a patent for her protocol in July 2020 and received it in December 2020. An unnamed party or parties offered her $10 million, then $40 million for her patent, but refused the money to continue her research.

Hazan found newborns have a lot of bifidobacteria and the elderly have little to none. Her research suggests that boosting a person’s microbiomes can address c difficile, anxiety, Lyme Disease, Crohn’s, psoriasis, Alzheimer’s, and cancer, while its deficiencies may be related to autism.

She had concerns from the vaccines from the start, but authorities kept doctors in California like her from warning patients about possible side effects.

“What I realized doing clinical trials is I couldn’t always trust pharmaceutical companies,” she said.

“When people are coming at me with a new medication that has been tested on animals for one week, I start freaking out.”

Some of her studies waited 6 to 8 months to get published, while 52 have not yet found a journal willing to print them.

“I’m trying to publish the data on the messenger RNA [of COVID vaccines] affecting the microbiome, which won a Research Award at the American College of Gastro[enterology], and nobody’s interested in publishing that.”

This study of more than 150 vaccine-injured patients found the entire phylum of bifidobacteria had been “wiped” out.

Frontiers in Microbiology published her most popular paper, Microbiome-Based Hypothesis on Ivermectin’s Mechanism in COVID-19: Ivermectin Feeds Bifidobacteria to Boost Immunity in July of 2022. The paper received 47,000 views before a complaint led to its retraction in May of 2023.

Twitter deemed her hypothesis as “misinformation” long before the retraction and blocked her account. Some of Hazan’s own patients who worked for Twitter helped get her account reinstated but could not keep her from a ‘misinformation’ label on her posts.

“I was doing the clinical trials. I was treating the patients, I was analyzing the stools. I was working with the FDA. Who’s giving misinformation? I’m publishing. You’re telling me I’m misinforming people?” she recalled thinking.

Hazan expressed concern that a “movement” to retract papers has yanked more than 14,000 of them and artificial intelligence will ignore them.

“What’s interesting about these papers is they all go against the narrative that is meant to sell you something. So that’s dangerous…if you’re trying to push a drug, or biologic, and now you’re removing everything else,” she said.

Such one-sided medical dogma is wrong, she insisted.

“That’s not science. That’s propaganda. That’s what we saw this pandemic,” said Hazan.

“Now I’m blacklisted from a lot of pharmaceutical companies…It actually killed my business of doing clinical trials.”

The fact that mRNA vaccines are still being pushed concerns the Moroccan-born doctor.

“You talk to scientists who do animal studies on the mRNA, they will tell you that the rats are eating their arms. So that’s all I need to hear,” she said.

“The technology may be promising, maybe, but it’s not there yet. It’s still very much experimental.”

Let’s hope more scientists, doctors, and journal publishers will find the integrity and courage of Hazan. Citizens have reason for concern that regulators have pushed risky mRNA vaccines while undermining the legitimacy of other promising options. When will honest science prevail?

Lee Harding is a Research Fellow at the Frontier Centre for Public Policy.

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