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Brownstone Institute

Kheriaty vs. University of California

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From the Brownstone Institute

BY Aaron KheriatyAARON KHERIATY

Shortly after I published the Wall Street Journal piece arguing that university vaccine mandates were unethical, the University of California, my employer, promulgated its vaccine mandate. I decided then it was time to put a stake in the ground: I filed a lawsuit in federal court challenging the constitutionality of the university’s vaccine mandate on behalf of COVID-recovered individuals. It was already clear from many robust studies that natural immunity following infection was superior to vaccine-mediated immunity in terms of efficacy and duration of immunity.

At the time I was an unlikely candidate to challenge the prevailing vaccination policies. I was deeply embedded in the academic medical establishment, where I had spent my entire career. In my capacity as a psychiatric consultant on the medical wards and in the emergency department, I had suited up in PPE (personal protective equipment) to see hundreds of hospitalized COVID patients, witnessing the worst that this illness can do. Nobody needed to explain to me how bad this virus could be for some individuals, especially the elderly with co-occurring medical conditions who were at significant risk of bad outcomes when infected.

I contracted the virus in July 2020, and despite my efforts to self-isolate, passed it to my wife and five children. Living and breathing COVID for a year, I eagerly awaited a safe and effective vaccine for those that were still not immune to this virus. I happily served on the Orange County COVID-19 Vaccine Task Force, and I advocated in the Los Angeles Times that the elderly and sick be prioritized for vaccination, and that the poor, disabled, and underserved be given ready access to vaccines.

I had worked every day for over a year to develop and advance the university’s and state’s pandemic mitigation measures. But as the prevailing COVID policies unfolded, I became increasingly concerned, and eventually disillusioned. Our one-size-fits-all coercive mandates failed to take account of individualized risks and benefits, particularly age-stratified risks, which are central to the practice of good medicine. We ignored foundational principles of public health, like transparency and the health of the entire population. With little resistance we abandoned foundational ethical principles.

Among the most glaring failures of our response to COVID was the refusal to acknowledge the natural immunity of COVID-recovered patients in our mitigation strategies, herd-immunity estimates, and vaccine-rollout plans. The CDC estimated that by May 2021, more than 120 million Americans (36 percent) had been infected with COVID. Following the Delta-variant wave later that year, many epidemiologists estimated the number was close to half of all Americans. By the end of the Omicron wave in early 2022, that number was north of 70 percent. The good news — almost never mentioned — was that those with previous infection had more durable and longer-lasting immunity than the vaccinated. Yet the focus remained exclusively on vaccines.

As I argued in a coauthored article, medical exemptions for most vaccine mandates were too narrowly tailored, constraining physicians’ discretionary judgment and seriously compromising individualized patient care. Most mandates only allowed medical exemptions for conditions included on the CDC’s list of contraindications to the vaccines — a list that was never meant to be comprehensive. CDC recommendations should never have been taken as sound medical advice applicable to every patient.

Further exacerbating this problem, on August 17, 2021, all licensed physicians in California received a notification from the state medical board with the heading “Inappropriate Exemptions May Subject Physicians to Discipline.” Physicians were informed that any doctor granting an inappropriate mask exemption or other COVID-related exemptions “may be subjecting their license to disciplinary action.” In what was perhaps a deliberate omission, the “standard of care” criteria for vaccine exemptions was never defined by the medical board. In my eighteen years as a licensed physician, I had never previously received any such notice, nor had my colleagues.

The effect was chilling: since physicians naturally interpreted “other exemptions” to include vaccines, it became de facto impossible to find a doctor in California willing to write a medical exemption, even if the patient had a legitimate contraindication to the COVID vaccines. One of my patients was told by his rheumatologist he should not get the COVID vaccine, since he was at low risk from COVID and in this physician’s judgment his autoimmune condition elevated his risks of vaccine adverse effects.

This patient, who was subjected to a vaccine mandate at work, immediately asked this same physician for a medical exemption. The doctor replied, “I’m sorry, I cannot write you an exemption because I’m afraid I might lose my license.” I heard many stories of similar egregious violations of medical ethics under these repressive mandates and the enforcement regime that bolstered them.

As the vaccines rolled out in 2021, I spoke to many students, faculty, residents, staff, and patients who were aware of these basic immunological facts and were asking legitimate questions about vaccine mandates. Many correctly saw no medical or public health justification for subjecting themselves to the risks of the novel vaccines when they already had superior natural immunity. Others had moral concerns but did not qualify for a religious exemption, because religion was not central to their conscience-based objections.

They felt intimidated, disempowered, and vulnerable in the face of immense pressure to go along. Many physicians and nurses were afraid to speak up in the climate of coercion. Public health officials ignored inconvenient scientific findings, suppressed reasonable questions, and bullied into silence any skeptical physicians or scientists. Institutions promulgating mandates stigmatized and punished those who refused to comply. I had never seen anything like this in medicine.

Why did I file a lawsuit in federal court against my own employer? I had nothing to gain personally by this and a lot to lose professionally. I decided I could not stand by and watch the ethical disaster unfold around me without attempting to do something. In my position as Director of Medical Ethics at UCI, I had a duty to represent those whose voices were silenced and to insist upon the right of informed consent and informed refusal.

In the end, my decision to challenge these mandates came down to this question: How could I continue to call myself a medical ethicist if I failed to do what I was convinced was morally right under pressure? Projecting ahead to the required medical ethics course I taught to first and second-year medical students at the beginning of each year, I could not imagine lecturing on informed consent, moral courage, and our duty to protect patients from harm if I had failed to oppose these unjust and unscientific mandates. I simply would not have woken up each day with a clear conscience.

The university did not take kindly to my legal challenge, as you might imagine. Administrators allowed no grass to grow under their feet before responding to this dissident within the ranks. I had petitioned the court for a preliminary injunction to put the vaccine mandate on hold while the case was litigated in court. The judge declined this request, and the following day the university placed me on “investigatory leave” for alleged noncompliance with the vaccine mandate. Instead of waiting for the federal court to decide my case, the university immediately banned me from working on campus or working from home.

I was given no opportunity to contact my patients, students, residents, or colleagues and let them know I would suddenly disappear. An email from one of the deans, sent after I had left the office for the day, informed me that I could not return to campus the following day.

As I drove away from campus for the last time that day, I glanced at the sign on the corner near the hospital. The sign, which had been up for months, read in large block letters, HEROES WORK HERE.

Republished from the author’s Substack

Author

  • Aaron Kheriaty

    Aaron Kheriaty, Senior Brownstone Scholar and 2023 Brownstone Fellow, is a psychiatrist working with the Unity Project. 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.

Brownstone Institute

The White House Makes Good on Its Antitrust Threats

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From the Brownstone Institute

BY Jeffrey A. TuckerJEFFREY A. TUCKER

On May 5, 2021, White House press secretary Jen Psaki issued a mob-like warning to social-media companies and information distributors generally. They need to get with the program and start censoring critics of Covid policy. They need to amplify government propaganda. After all, it would be a shame if something would happen to these companies.

These were her exact words:

The president’s view is that the major platforms have a responsibility related to the health and safety of all Americans to stop amplifying untrustworthy content, disinformation and misinformation, especially related to Covid-19 vaccinations and elections. And we’ve seen that over the past several months. Broadly speaking, I’m not placing any blame on any individual or group. We’ve seen it from a number of sources. He also supports better privacy protections and a robust antitrust programSo, his view is that there’s more that needs to be done to ensure that this type of misinformation, disinformation, damaging, sometimes life threatening information is not going out to the American public.

On the face of it, the antitrust action against Apple is about their secure communications network. The Justice Department wants the company to share their services with other networks. As with so many other antitrust actions in history, this is really about the government’s taking sides in competitive disputes between companies, in this case Samsung and other smartphone providers. They resent the way Apple products all work together. They want that changed.

The very notion that the government is trying to protect consumers in this case is preposterous. Apple is a success not because they are exploitative but because they make products that users like, and they like them so much that they buy ever more. It’s not uncommon that a person gets an iPhone and then a Macbook, an iPad, and then AirPods. All play well together.

The Justice Department calls this anticompetitive even though competing is exactly the source of Apple’s market strength. That has always been true. Yes, there is every reason to be annoyed at the company’s hammer-and-tongs enforcement of its intellectual property. But their IP is not the driving force of the company’s success. Its products and services are.

Beyond that, there is a darker agenda here. It’s about bringing new media into the government propaganda fold, exactly as Psaki threatened. Apple is a main distributor of podcasts in the country and world, just behind Spotify (which is foreign controlled). There are 120 million podcast listeners in the US, far more than pay attention to regime media in total.

If the ambition is to control the public mind, something must be done to get those under control. It’s not enough just to nationalize Facebook and Google. If the purpose is to end free speech as we know it, they have to go after podcasting too, using every tool that is available.

Antitrust is one tool they have. The other is the implicit threat to take away Section 230 that grants legal liability to social networks that immunize them against what would otherwise be a torrent of litigation. These are the two main guns that government can hold to the head of these private communications companies. Apple is the target in order to make the company more compliant.

All of which gets us to the issue of the First Amendment. There are many ways to violate laws on free speech. It’s not just about sending a direct note with a built-in threat. You can use third parties. You can invoke implicit threats. You can depend on the awareness that, after all, you are the government so it is hardly a level playing field. You can embed employees and pay their salaries (as was the case with Twitter). Or, in the case of Psaki above, you can deploy the mob tactic of reminding companies that bad things may or may not happen if they persist in non-compliance.

Over the last 4 to 6 years, governments have used all these methods to violate free speech rights. We are sitting on tens of thousands of pages of proof of this. What seemed like spotty takedowns of true information has been revealed as a vast machinery now called the Censorship Industrial Complex involving dozens of agencies, nearly one hundred universities, and many foundations and nonprofit organizations directly or indirectly funded by government.

You would have to be willfully blind not to see the long-run ambition. The goal is a mass reversion to the past, a world like we had in the 1970s with three networks and limited information sources about anything going on in government. Back then, people did not know what they did not know. That’s how effective the system was. It came about not entirely because of active censorship but because of technological limitations.

The information age is called that because it blew up the old system, offering hope of a new world of universal distribution of ever more information about everything, and promising to empower billions of users themselves to become distributors. That’s how the company YouTube got its name: everyone could be a TV producer.

That dream was hatched in the 1980s, gained great progress in the 1990s and 2000s, and began fundamentally to upend government structures in the 2010s. Following Brexit and the election of Donald Trump in 2016 – two major events that were not supposed to happen – a deep establishment said that’s enough. They scapegoated the new systems of information for disrupting the plans of decades and reversing the planned course of history.

The ambition to control every nook and cranny of the Internet sounds far-flung but what choice do they have? This is why this machinery of censorship has been constructed and why there is such a push to have artificial intelligence take over the job of content curation. In this case, machines alone do the job without human intervention, making litigation nearly impossible.

The Supreme Court has the chance to do something to stop this but it’s not clear that many Justices even understand the scale of the problem or the Constitutional strictures against it. Some seem to think that this is only about the right of government officials to pick up the phone and complain to reporters about their coverage. That is absolutely not the issue: content curation affects hundreds of millions of people, not just those posting but those reading too.

Still, if there is some concern about the supposed rights of government actors, there is a clear solution offered by David Friedman: post all information and exhortations about topics and content in a public forum. If the Biden or Trump administration has a preference for how social media should behave, it is free to file a ticket like everyone else and the recipient can and should make it and the response public.

This is not an unreasonable suggestion, and it should certainly figure into any judgment made by the Supreme Court. The federal government has always put out press releases. That’s a normal part of functioning. Bombarding private companies with secret takedown notices and otherwise deploying a huge plethora of intimidation tactics should not even be permitted.

Is there muscle behind the growing push for censorship? Certainly there is. This reality is underscored by the Justice Department’s antitrust actions against Apple. The mask of such official actions is now removed.

Just as the FDA and CDC became marketing and enforcement arms of Pfizer and Moderna, so too the Justice Department is now revealed as a censor and industrial promoter of Samsung. This is how captured agencies with hegemonic ambitions operate, not in the public interest but in the private interest of some industries over others and always with the goal of reducing the freedom of the people.

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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Brownstone Institute

Journalistic Malpractice at The New York Times

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From the Brownstone Institute

The federal bureaucracy has hijacked our information centers to protect their own interests. They’ve stifled dissent to perpetuate their power, and the mainstream press has bowed to the Leviathan. Supreme Court Justices, perhaps the last line of defense against the tyrants’ aspiration to codify totalitarianism into law, appear primed to abandon the First Amendment.

An obsequious press corps now serves as the mouthpiece for the country’s vast censorship apparatus. Last Sunday, The New York Times ran a front page story “How Trump’s Allies Are Winning the War Over Disinformation.”

The Gray Lady covered the battle for the First Amendment in familiar doublethink. As we’ve covered throughout the Missouri v. Biden (now Murthy v. Missouri) proceedings, the censors deny the censorship exists while insisting we should be thankful that it does.

Government lawyers have argued that plaintiffs manufactured the case, and the allegations of censorship are nothing more than “an assortment of out-of-context quotes and select portions of documents that distort the record to build a narrative that the bare facts simply do not support.” At the same time, they insist the censorship is necessary “to prevent grave harm to the American people and our democratic processes.”

Harvard Law Professor Larry Tribe followed their lead, arguing that the private-public censorship apparatus is a “thoroughly debunked conspiracy theory” but that eliminating it “will make us less secure as a nation and will endanger us all every day.”

Now, The New York Times and other news outlets have joined in supporting the censors. The piece cites Nina Jankowicz, the aspiring tyrant known for her Mary Poppins-themed calls for censorship, who claimed there was “no shred of evidence” behind allegations that the Biden administration called to stifle dissent.

The article describes the censorship apparatus as a farcical right-wing fever dream in which President Trump “casts himself as victim and avenger of a vast plot to muzzle his movement.” At the same time, the authors cite the American Intelligence Community’s leading advocates for restricting the flow of information.

Jankowicz headed the Department of Homeland Security’s board on disinformation until the Biden administration suspended the Domestic Ministry of Truth in response to reports that Jankowicz was a prolific spreader of misinformation, including the Steele Dossier and the Hunter Biden laptop.

Jankowicz complained, without irony, to the Times that the resistance to online censorship created a “chilling effect.” She explained, “Nobody wants to be caught up in it.”

The Times also quoted Katie Starbird, who said that “the people that benefit from the spread of disinformation have effectively silenced many of the people that would try to call them out.” The Gray Lady did not note the irony that Starbird claimed to be “silenced” as the paper of record quoted her on the front page of the Sunday edition, nor did they explain her role at CISA, the Department of Homeland Security agency at the center of the censorship industry.

While serving on CISA’s “Misinformation & Disinformation” subcommittee, Starbird lamented that many Americans seem to “accept malinformation as ‘speech’ and within democratic norms.” Of course, those “norms” have been protected by the First Amendment for over 200 years. But CISA – led by zealots like Dr. Starbird – appointed themselves the arbiters of truth and worked with the most powerful information companies in the world to purge dissent.

The Times, Starbird, and Jankowicz represent the foundational lie underpinning the entire censorship complex: that the government and its bureaucrats hold a monopoly on truth. Justice Ketanji Brown Jackson apparently shared this view in oral arguments for Murthy v. Missouri, as she advocated for the right to abridge free speech provided the government offers a “compelling state interest.”

The First Amendment does not discriminate between true and false ideas; it offers a blanket protection of speech regardless of veracity. But notwithstanding legal protections, the Government has been the most prolific spreader of “misinformation” in the last four years. From natural immunity, to lockdowns, to vaccine efficacy, to mask mandates, to travel restrictions, to fatality rates, the “trust the science” crowd has silenced dissent that has often been more accurate than their government decrees.

In this process, left-wing institutions have abandoned their liberal values in the pursuit of power. As Brownstone outlined in “A Close Look at the Amici Briefs in Murthy v. Missouri,” supposedly liberal groups like Stanford University and Democratic Attorneys General urged the Court to promote censorship while the ACLU remained derelict in silence.

Journalists – once heralded as the Fourth Estate – have joined forces with the regime to disparage its challengers. In Slate, Mark Joseph Stern referred to Murthy v. Missouri as “inane” and “brain-meltingly dumb.” He made no effort to report the hundreds of pages in discovery that revealed the coordinated censorship campaigns directed from the White House, the Intelligence Community, and Big Tech, nor did he grapple with the laundry list of follies that flourished under government-sponsored censorship, including the Iraq War, Covid lockdowns, or Hunter Biden’s laptop.

Instead, he declares definitively that the Biden administration – the same one that proudly ignores the Court’s orders on student loans and demands the censorship of its political enemies – acted within its powers in response to “a once-in-a-century pandemic.”

These conclusory statements, utterly detached from the truth, are nothing new for Stern, whose work reveals him to be little more than a spokesman for the Democratic Party. In the confirmation hearings for Brett Kavanaugh, he called for increased investigations into Julie Swetnick’s easily-debunked allegation that Kavanaugh was a ring leader for a group of high school gang rapists. He described Christine Blasey Ford, a serial liar who has no evidence she ever met Kavanaugh, as a “folk hero to the left for the rest of time.” He chastised justices for not wearing masks as late as 2022 and derided judicial review of the nonsensical airline mask mandate as evidence of a “power-drunk juristocracy” and “badly broken” system.

Like so much of the authoritarian left, there is no nuance or variety to the power-seeking gambits. From mail-in voting to vaccine mandates to lockdowns to Elon Musk to affirmative action, the Slate author moves in lockstep with the mindless herd.

Stern is in no way remarkable, but he represents the transformation of the American left, which has ushered in a new era of authoritarianism draped in progressive language. Like Justice Jackson, the wolf comes in sheep’s clothing, dressed in politically correct standards of affirmative action and diversity politics. But the rainbow veneer cannot overcome the insidious threat to our republic.

The federal bureaucracy has hijacked our information centers to protect their own interests. They’ve stifled dissent to perpetuate their power, and the mainstream press has bowed to the Leviathan. Supreme Court Justices, perhaps the last line of defense against the tyrants’ aspiration to codify totalitarianism into law, appear primed to abandon the First Amendment.

A ruling for the government in Murthy v. Missouri could permanently transform the nation, the relationship between Government and private businesses, and Americans’ right to information. Even more alarmingly, it would suggest that due process no longer reigns supreme over political favoritism.

In Robert Bolt’s A Man for All Seasons, Thomas More asks his son-in-law, William Roper, if he would give the Devil the protection of the law. Roper responds that he’d “cut down every law in England” to get to the Devil.

“Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat?” More asks. “This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down…do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

Justice Jackson, the Biden Administration, Katie Starbird, and their allies in the media may believe they have a divine mission to censor alleged misinformation, that the Devil’s reincarnation has taken multiple forms in the bodies of RFK Jr., Alex Berenson, Jay Bhattacharya, and others; under our Constitution, however, the self-professed nobility of their missions does not excuse violations of the First Amendment.

Let us hope the Court realizes the graveness of the threat.

Author

  • Brownstone Institute

    Brownstone Institute is a nonprofit organization conceived of in May 2021 in support of a society that minimizes the role of violence in public life.

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