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Brownstone Institute

Tremendous Progress in Missouri v. Biden

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18 minute read

From the Brownstone Institute

BY AARON KHERIATY

As I explained previously, the government appealed the district court’s preliminary injunction in Missouri v. Biden, which would prohibit the government from pressuring social media companies to censor Americans online. Two days ago, a three-judge panel in the 5th Circuit court of appeals heard oral arguments from both sides.

Alex Gutentag over at Public yesterday provided a great summary of the judge’s responses during the hearing:

Yesterday the Fifth Circuit court heard oral arguments in the Missouri v. Biden case, and the judges did not hold back. One judge suggested the government “strongarms” social media companies and that their meetings had included “veiled and not-so-veiled threats.”

Another judge described the exchange between the Biden administration and tech companies as the government saying, “Jump!” and the companies responding, “How high?”

“That’s a really nice social media company you got there. It’d be a shame if something happened to it,” the judge said, describing the government’s coercive tactics.

Attorney John Sauer, representing Louisiana, masterfully argued that the government had repeatedly violated the First Amendment. He pointed to specific evidence of coercion in the Facebook Files.

“You have a really interesting snapshot into what Facebook C-suite is saying,” Sauer explained. “They’re emailing Mark Zuckerberg and Sheryl Sandberg and saying things like… ‘Why were we taking out speech about the origins of covid and the lab leak theory?’” The response, Sauer said, was, “Well, we shouldn’t have done it, but we’re under pressure from the administration.”

He also cited an email from Nick Clegg, Facebook President of Global Affairs, that pointed to “bigger fish to fry with the Administration — data flows, etc.”

On Monday, Public reported that these “data flows” referred to leverage the Biden administration had over the company; Facebook needed the White House to negotiate a deal with the European Union. Only through this deal could Facebook maintain access to user data that is crucial for its $1.2 billion annual European business.

But Sauer also made it clear that coercion was not the only basis on which the court could rule against the Biden administration. Joint activity between the White House and social media platforms would also be unconstitutional.

Sauer compared what the government had done to book burning. “Imagine a scenario where senior White House staffers contact book publishers… and tell them, ‘We want to have a book burning program, and we want to help you implement this program… We want to identify for you the books that we want burned, and by the way, the books that we want burned are the books that criticize the administration and its policies.”

Daniel Tenny, the attorney for the Department of Justice, was left nitpicking and misrepresenting the record. In one instance, he denied that Anthony Fauci and Francis Collins had hatched a plan to orchestrate a “takedown” of the Great Barrington Declaration. Why? Because, Tenny said, according to their emails, they actually planned a takedown of “the premises of the Great Barrington Declaration.”

Tenny also stated that social media companies had not removed any true content. From the case’s discovery as well as the Facebook Files we know that is far from true. Facebook, against internal research and advicedid remove “often-true content” that might discourage people from getting vaccinated. Facebook’s own emails clearly suggest that the company only did this due to pressure from figures within the Biden Administration.

Tenny also claimed that when Rob Flaherty, the White House director of Digital Strategy, dropped the F-bomb in an exchange with Facebook it was not about content moderation. In fact, it was precisely about content moderation and occurred during a conversation about how Instagram was throttling Biden’s account. Ironically, the account couldn’t gain followers because Meta’s algorithm had determined that it was spreading vaccine misinformation.

Later, Sauer demolished an earthquake hypothetical that Tenny had introduced to justify state-sponsored censorship. “You can say this earthquake-related speech that’s disinformation is false, it’s wrong,” Sauer said. “The government can say it’s bad, but the government can’t say, ‘Social media platforms, you need to take it down.’ Just like a government can’t stand at the podium and say, ‘Barnes and Noble, you need to burn the bad books, burn the Communist books, whatever it is.’ They can’t say take down speech on the basis of content.”

Based on this hearing, the plaintiffs in Missouri v. Biden may have a strong chance of winning. Biden’s DOJ simply had no valid arguments to present. The evidence is clear: the administration brazenly engaged in an unlawful censorship campaign and instrumentalized private companies to do its bidding. This total disregard for fundamental civil liberties will be a stain on the Democratic Party for years to come.


Matt Taibbi’s reporting on this at Racket News yesterday was likewise excellent. I especially appreciated his colorful account of our brilliant lawyer, John Sauer. A few excerpts:

Early in the afternoon, a three-judge panel met to decide whether or not to revoke a stay of Judge Terry Doughty’s sweeping July 4th order barring a battery of government agencies from contacting social media companies about content moderation. Biden administration counsel Daniel Bentele Hahs Tenny was under fire from the jump.

It was hard not to feel for Tenny. Sitting across from him was a packed table of anxious plaintiffs’ attorneys, including Missouri’s garrulous, tornado-like former Solicitor General John Sauer — the driving force behind the Missouri v. Biden legislation — as well as the current officeholder, a lean, plain-spoken lawyer with Jimmy Stewart vibes named Josh Devine. Tenny, an ashen, slouching figure, was alone. In a case of major historical import, likely headed to the Supreme Court, the federal government hadn’t even sent another lawyer to keep him company. Staring down at his table, he looked like Napoleon Dynamite at lunch.

Called first, Tenny read a speech. He made it through the first thirty seconds well enough, arguing that Doughty’s July 4th order would leave the government “powerless” to discourage social media companies from disseminating “untrue” statements in the event of a natural disaster. Then, almost right away, he stepped in it.

“To take another example,” Tenny went on. “If… a government official were to conclude that it was likely, although not certain, that posts on social media were part of a criminal conspiracy, for example regarding human trafficking… the government official would be powerless to bring those posts to the social media company’s attention.”

Judges Edith Brown Clement, Jennifer Walker Elrod, and Don Willett listened sleepily at first, but all three snapped awake at the words “criminal conspiracy.” Doughty’s July 4th order specifically exempted communications about “criminal activity or criminal conspiracies,” posts that “threaten the public safety,” and communications about things that are “not protected free speech.” Tenny’s remarks more or less immediately drove into this wall of exceptions.

“So you do not believe that either of those are covered by the exception or exclusion specifically contained in the injunction?” asked Elrod.

Things then went bad to worse for the government:

Before long judges were rattling off greatest hits of both the Missouri v. Biden evidence and Facebook Files material, the worst possible scenario. Elrod within minutes was referencing posts by officials like the White House’s Rob Flaherty expressing frustration that content like Tucker Carlson videos or Alex Berenson articles hadn’t been removed.

“What appears to be in the record are these irate messages from time to time from high ranking government officials that say, you didn’t do this yet,” she said. “It’s like ‘Jump!’ and ‘How High?’”

Tenny tried to reorient Elrod to the question of whether or not this constituted overt coercion. If you were coercing, he said, “You wouldn’t say, ‘I’m really mad.’ You would just say, ‘Do this or else,’ and the or else would be clear.”

Elrod, not buying it, launched into an extraordinary counter-argument, comparing the federal government to the mob:

If you’ll excuse me, it’s like if somebody is in these movies that we see with the mob or something. They don’t say and spell out things, but they have these ongoing relationships, and they never actually say, “Go do this or else you are going to have this consequence.” But everybody just knows…

I’m certainly not equating the federal government with anybody in illegal organized crime. But… there are certain relationships where people know things without always saying the “or else.”

Willett put the mob analogy in even plainer language, saying the government’s behavior was a “fairly unsubtle kind of strong-arming,” as in, “That’s a really nice social media platform you got there. It’d be a shame if something happened to it.”

Then our lawyer John Sauer’s took his turn delivering a barrage of evidence and pointed arguments like a caped crusader making short work of helpless thugs:

In the court gallery a few clerks winced at one another at certain points of Tenny’s address, the way people do at boxing matches when someone walks into a face shot. The effect got worse when Tenny walked off and a furious Sauer addressed the judges. While Tenny rambled and spoke in generalities, the loquacious, bespectacled Sauer — who appears descended from some ancient God of rage — tore into the government’s arguments with ferocity and specificity. Judges tried at various points to challenge him, but he kept hurling cites back so fast the queries got lost.

“I would direct the court’s attention to pages 70 to 75 and 80 to 86 of the District court’s opinion,” he’d say, “where he makes specific findings resulting in the conclusion that CISA and the Election Integrity Partnership were, quote, ‘completely intertwined…’”

Taibbi then placed the significance of this case into context, explaining why the case will almost certainly end up at the Supreme Court:

Missouri v. Biden is fast becoming the vehicle through which a diverse series of recent disclosures about government censorship, including the Twitter Files reports, is likely to be litigated at a national level. What was pooh-poohed as conspiracy theory even a year ago is now a cat-hair away from being addressed and potentially proscribed by the country’s highest court. For the issue to get there at all would in itself represent an incredible journey, but signs continue to accumulate that a rare major judicial reprimand of the intelligence and enforcement communities could actually happen, and soon, too.

It would be a mistake to read too much into hearings like yesterday’s. One never knows how judges will rule, even when they appear to show emotion and inclination in court. Sometimes, they’re playing Devil’s advocate. The appellate panel, charged with deciding whether or not to reinstate Doughty’s sweeping order, could easily surprise those who attended and rule against the plaintiffs. Either way, an answer is expected soon. Attorneys present gave estimates ranging from a few weeks to two months for the panel to rule on yesterday’s issue.

A crucial fact of this case, however, is that Doughty’s July 4th order has created a motivation for both sides to push forward to the Supreme Court as soon as possible. Doughty’s ruling, which described the current Internet censorship regime as “arguably… the most massive attack against free speech in United States history,” essentially said that the damage from current government-influenced content moderation schemes may be so extreme that they must be completely enjoined until courts can determine how bad they are. That ruling was a major victory for the plaintiffs, and if the July 14th stay by the Fifth Circuit Court of Appeals remains in place, the plaintiffs will almost certainly appeal right away to a higher court in hopes of restoring their big win.

If the plaintiffs prevail, on the other hand, Doughty’s order will go back in force and the government will essentially be barred from meddling in the speech landscape. The administration has already argued on paper that this can’t be tolerated for any length of time, as any inability to pursue these “initiatives to prevent grave harm to the American people and our democratic processes,” causes the state “irreparable harm.” A more cynical interpretation might be that the “irreparable harm” is the prospect of the administration going without nuclear opinion-managing tools heading into an election year. Either way, a loss on the stay question will similarly motivate the administration to push for immediate Supreme Court consideration.

That’s all for now, folks. I will update you as soon as we get a ruling from the 5th Circuit. I remain optimistic that an eventual win at the Supreme Court will be the first major step toward completely dismantling the government’s censorship leviathan and restoring First Amendment free speech rights for all Americans.

Thank you for your continued support.

Reprinted 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

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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