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Brownstone Institute

The White House’s ‘Misinformation’ Pressure Campaign Was Unconstitutional

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From the Brownstone Institute

BY Aaron KheriatyAARON KHERIATY

I am one of five private plaintiffs in the landmark free speech case Missouri v. Biden. Earlier this month, the Fifth Circuit Court found that the government “engaged in a years-long pressure campaign designed to ensure that the censorship [on social media] aligned with the government’s preferred viewpoints” and that “the platforms, in capitulation to state-sponsored pressure, changed their moderation policies.” This resulted in the censoring of constitutionally protected speech of hundreds of thousands of Americans, tens of millions of times. Based on this finding, the Fifth Circuit in part upheld an injunction on certain public officials put in place by a district court.

Even when the government appealed the injunction to the Fifth Circuit, its lawyers hardly disputed  a single factual finding  from the court’s ruling. A unanimous three-judge panel upheld the core findings that “several officials—namely the White House, the Surgeon General, the CDC, and the FBI—likely coerced or significantly encouraged social-media platforms to moderate content, rendering those decisions state actions. In doing so, the officials likely violated the First Amendment.” The government again appealed the injunction to the Supreme Court, where we expect a ruling this week.

The government’s claim that the injunction limits public officials’ own speech is absurd misdirection. The government can say whatever it wants publicly; it just cannot stop other Americans from saying something else. Free speech matters not to ensure that every pariah can say whatever odious thing he or she chooses. Rather, free speech prevents the government from identifying every critic as a pariah whose speech must be shut down.

We are all harmed when our rulers silence criticism. Our government’s self-inflicted deafness prevented officials and their constituents from hearing viewpoints that should have had a meaningful impact on our policy decisions. Instead, government censorship resulted time and again in the silencing of scientifically informed criticisms of, for example, harmful COVID policies. This allowed misguided and divisive policies to persist far too long.

The scope of the current government censorship regime is historically unprecedented. “The present case arguably involves the most massive attack against free speech in United States’ history,” the district court judge explained in his ruling. He went on, “The evidence produced thus far depicts an almost dystopian scenario… The United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth’.” The Fifth Circuit panel concurred: “The Supreme Court has rarely been faced with a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life.”

The government’s only attempted defense is that it was merely offering help to the platforms without jawboning them—”just your friendly neighborhood government agency.” But the law is clear that even “significant encouragement” to censor protected speech—not just overt threats or coercion—is unconstitutional. We discovered that social media companies frequently tried to push back against government demands, before finally caving to relentless pressure and threats. The evidence we presented from 20,000 pages of communications between government and social media demonstrated both significant encouragement and coercion—as when Rob Flaherty, White House director of digital strategy, berated executives at Facebook and Google, dropping F-bombs, launching tirades, and browbeating the companies into submission—until they removed even a parody account satirizing President Joe Biden.

But the more insidious and powerful censorship happens when government pressures companies to change their terms of service and modify their algorithms to control what information goes viral and what information disappears down the memory hole. With sophisticated deboosting, shadowbanning, search results prioritization, and so forth, citizens do not even realize they are being silenced, and viewers remain unaware that their feeds are carefully curated by the government. Novelist Walter Kirn compared this to mixing a record: turn the volume up on this idea (more cowbell) and turn the volume down on that idea (less snare drum). The goal is complete top-down information control online.

We were dismayed to discover the number of government agencies now engaged in censorship (at least a dozen) and the range of issues they targeted: the State Department censored criticism of our withdrawal from Afghanistan and the Ukraine War, the Treasury Department censored criticism of our monetary policy, the FBI (surprise!) ran point on several censorship ops, and even the Census Bureau got in on the game. Other targeted topics ranged from abortion and gender to election integrity and COVID policy.

Much of the state censorship grunt work is outsourced to a tightly integrated network of quasi-private (i.e., government funded) NGOs, universities, and government cutouts employing thousands of people working round the clock to flag posts for takedown. But constitutional jurisprudence is clear: the government cannot outsource to private entities actions that would be illegal for the government itself to do. If a government agent hires a hit man, he is not off the hook simply because he did not personally pull the trigger.

So-called “misinformation research” at places like the Stanford Internet Observatory is a slippery euphemism for censorship—not only because Facebook executives admitted to censoring “often true” but inconvenient information under government pressure, but because these entities function as laundering operations for government censorship.

Recent attempts to rebrand the work of the censorship-industrial complex with more anodyne euphemisms—”information integrity” or “civic participation online”—don’t change the fact that this is not disinterested academic research, but cooperation in state-sponsored suppression of constitutionally protected speech, always in favor of the government’s preferred narratives.

CISA, the government’s censorship switchboard and clearinghouse agency housed within the Department of Homeland Securitydescribed its work as protecting our “cognitive infrastructure”—i.e., the thoughts inside your head—from bad ideas, such as the ones advanced in this article. (Not kidding: YouTube recently censored a video of our lawyers giving a talk on our censorship case.) These ideas aren’t throttled by government censors because they are untrue, but because they are unwelcome. There’s a more accurate term for the government’s takeover of our “cognitive infrastructure:” mind control. I don’t know a single American of any political persuasion who wants to be subjected to that.

Republished from Newsweek

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

Conspiracy Theory Debunker Finds Real Conspiracies

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From the Brownstone Institute

BY Doran HowittDORAN HOWITT  

The first genuine conspiracy he describes involved the US Food and Drug Administration (FDA) manipulating data in the Vaccine Adverse Events Reporting System (VAERS). The second involved a newspaper editor-in-chief refusing to report about vaccine side effects observed by a hospital

The 2023 book Misbelief by Dan Ariely belongs to a genre I would label “debunking Covid conspiracy theories.” The book is meant to explore the thought process of people who subscribe to conspiracy theories, especially about Covid and the Covid vaccines.

Thus I was surprised to encounter in the book two stories in which the author uncovered real conspiracies to hide information about Covid from the public.

Ariely, a professor of psychology at Duke University, played a bit part in promoting Covid lockdowns around the world. By his own description, he worked

…on projects related to Covid-19 with the Israeli government and a bit with the British, Dutch, and Brazilian governments as well…I was mostly working to try to get the police to use rewards to incentivize good mask-wearing behavior and observance of social distancing instead of using fines… (p. 4)

The first genuine conspiracy he describes involved the US Food and Drug Administration (FDA) manipulating data in the Vaccine Adverse Events Reporting System (VAERS). The second involved a newspaper editor-in-chief refusing to report about vaccine side effects observed by a hospital. The author reports these situations matter-of-factly, and even gives the conspirators the benefit of the doubt, saying maybe they did the right thing!

Let’s look at the VAERS conspiracy (recounted on pp. 274-276). Ariely says he got this information directly from a person who works “in the information technology department of the FDA.” The agency, according to the story, determined that:

…foreign powers, mostly Russian and Iranian, had found a way to spread disinformation using VAERS. So when the FDA identified cases that had clearly come from such sources, it removed them from the system…

Not only did it delete this data, but it did so silently. Ariely only found out by accident: Parents of vaccine-injured children maintained their own copy of the VAERS data, downloaded from the FDA site. They noticed that cases appearing in their downloaded data later disappeared from the government copy of the database, and they told Ariely about this.

Supposedly the FDA tried to keep these actions secret because it “did not want to announce to the foreign powers that it was onto them,” the FDA employee told him. But to anyone reasonably well-versed in information technology, keeping such acts secret is an obvious mistake. The bad guys will figure out what is going on; the folks we are trying to protect are left in the dark about possible mischief affecting data they rely on. And that’s the most charitable assessment of their actions. It could be worse: the FDA might have removed valid information inadvertently (putting aside possible nefarious intentions at this point). How might that come about?

Since we don’t have details as to how the FDA found this bad data, we need to speculate. Here is the easiest scenario to imagine. A straightforward way to detect computer sessions originating in Russia or Iran is by IP (internet protocol) address. Did the FDA personnel identify the supposedly bogus entries by this method?

But there’s a flaw in that approach. Many computer users obfuscate their IP address for privacy reasons. Some popular browsers such as Tor and Brave do that automatically: each browser page gets detoured through servers in different locations. Those servers are located worldwide, including in Russia. Thus if a US-based individual using the Tor browser added an entry to VAERS, and the session was routed through Russia, the FDA might well have identified this incorrectly as misinformation.

Compare how the world of open-source software deals with malware. These software publishers routinely make information about vulnerabilities public, so that user organizations can both protect themselves and evaluate what damage might have been done. A publisher may wait a few days or weeks while they fix a bug and get it distributed, but then they disseminate the details.

A variety of US laws and regulations even require corporations to promptly reveal data breaches that happen to them. For example, the Securities and Exchange Commission mandates that public companies report “cybersecurity incidents” within four days of determining that the incident has a “material” effect on a company’s business.

VAERS is supposed to be a public resource. If FDA has a policy to remove entries, it should be transparent about its criteria, and make the data available for audit. Or it could just as easily have flagged the entries as “suspicious origin” and left them in the database. Then others could review their judgment and either confirm or dispute the classifications.

Let’s look at the second conspiracy Ariely recounts (pp. 277-280):

I was speaking with a doctor from a large health care organization…I couldn’t resist asking her what she thought about all the online chatter about unreported vaccine side effects. To my surprise, she agreed there was a problem. She said that she had observed a lot of side effects in her clinic that had not been reported and had been collecting such data from her patients…

Ariely at that point decided this was newsworthy. He met with the editor-in-chief of “a large newspaper,” told the editor about the situation, and suggested the editor get the doctor’s data and report about it. The reaction:

The editor told me he suspected that I was correct about the underreported side effects. However, he had no intention of publishing anything about them…because he suspected that the misbelievers would use the published information in an unethical way and distort it…I was disappointed that he did not publish the story, but I could see his point.

Ariely spends a few sentences philosophizing about what is the true responsibility of a newspaper – is it just to publish true information, or is it “to do this cost-benefit analysis for the society…?” But apparently he let the matter lie, acquiescing in real censorship of real information.

The debunker has debunked his own debunking project.

Author

  • Doran Howitt

    Doran Howitt is a semi-retired marketing executive and former financial journalist. He blogs as “Occasional Economist” on LinkedIn.

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Brownstone Institute

The WHO and Phony International Law

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From the Brownstone Institute

BY Bruce PardyBRUCE PARDY 

A new pandemic treaty is in the works. Countries are negotiating its terms, along with amendments to international health regulations. If ready in time, the World Health Assembly will approve them in May. The deal may give the WHO power to declare global health emergencies. Countries will promise to follow WHO directives. Lockdowns, vaccine mandates, travel restrictions, and more will be in the works. Critics say that the agreements will override national sovereignty because their provisions will be binding. But international law is the art of the Big Pretend.

You drive down Main Street. Cars are parked everywhere. The signs say “No Parking” but they also say, “The City does not enforce parking restrictions.” In effect there’s no rule against parking. Laws are commands imposed with the force of the state. Rules without sanctions are mere suggestions. Some people may honor the request, but others won’t. Those who disagree with the rule can safely ignore it. In domestic law, “enforceable” and “binding” are synonyms.

But not in international law, where promises are called “binding” even if they are unenforceable. In the international sphere, countries are the highest authority. Nothing stands above them with the power to enforce their promises. No such courts exist. The International Court of Justice depends on the consent of the countries involved. No international police enforce its orders. The UN is a sprawling bureaucracy, but in the end, it is merely a place for countries to gather. The WHO is a branch of the UN whose mandate countries negotiate amongst themselves.

In the proposed pandemic treaty, parties are to settle disputes through negotiation. They may agree to be subject to the International Court of Justice or to arbitration. But they cannot be required to.

Yet international law jurists insist that unenforceable treaty promises can be binding. “The binding character of a norm does not depend on whether there is any court or tribunal with jurisdiction to apply it,” Daniel Bodansky, a professor of international law at Arizona State University, wrote in a 2016 analysis of the Paris climate agreement. “Enforcement is not a necessary condition for an instrument or norm to be legally binding.” Without this Big Pretend, international law would collapse like a house of cards on a windy beach.

All countries are sovereign. They are free to retaliate against each other for perceived wrongs, including breaches of treaty promises. They can seek to have other countries censured or expelled from the international regime. They can impose trade sanctions. They can expel ambassadors. But retaliation is not “enforcement.” Moreover, international relations are a delicate business. Aggrieved countries are more likely to express their disappointment in carefully crafted diplomatic language than to burn bridges.

The threat from WHO proposals come not from outside but from within. We live in a managerial age, run by a technocratic elite. Over time, they have acquired for themselves the discretion to direct society for the common good, as they declare it to be.

As journalist David Samuels puts it, “Americans now find themselves living in an oligarchy administered day-to-day by institutional bureaucracies that move in lock-step with each other, enforcing a set of ideologically-driven top-down imperatives that seemingly change from week-to-week and cover nearly every subject under the sun.” These bureaucracies regulate, license, expropriate, subsidize, track, censor, prescribe, plan, incentivize, and inspect. Pandemics and public health are the most recent justifications for yet more control.

Domestic governments, not international bodies, will impose WHO recommendations on their citizens. They will pass laws and policies that incorporate those directives. Even an exasperated WHO Director-General Tedros Adhanom Ghebreyesus said so in a briefing this week. “There are those who claim that the pandemic agreement and [amended regulations] will cede sovereignty…and give the WHO Secretariat the power to impose lockdowns or vaccine mandates on countries…These claims are completely false…the agreement is negotiated by countries for countries and will be implemented in countries in accordance with your own national laws.”

Ghebreyesus is correct. Local and national authorities will not give up their powers. To what extent international commitments will be “binding” on a country depends not on international law but on that country’s own domestic laws and courts. Article VI of the US Constitution, for example, provides that the Constitution, federal laws, and treaties together “shall be the supreme Law of the Land.” That does not mean that treaties supersede the Constitution or federal laws. Domestic legislation and policy will be required for the proposed pandemic treaty and WHO directives to be enforced on American soil. Such legislation is an exercise of sovereignty, not a repudiation of it.

The proposals are not benign. Domestic authorities seek cover for their own autocratic measures. Their promises will be called “binding” even though they are not. Local officials will justify restrictions by citing international obligations. Binding WHO recommendations leave them no choice, they will say. The WHO will coordinate their imperatives as the face of global public health.

The WHO is not taking over. Instead, it will be the handmaiden for a coordinated global biomedical state. Managers hate straight lines. Diffuse, discretionary powers avoid accountability and the rule of law. The global health regime will be a tangled web. It is meant to be.

Author

  • Bruce Pardy

    Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University.

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