From the Brownstone Institute

BY WILLIAM SPRUANCE

“It is also axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” ~ Norwood v. Harrison (1973).

Fifty years ago, the Supreme Court held that the U.S. Government cannot coerce private parties to violate citizens’ constitutionally protected liberties. Under the guise of Covid responses, government officials defied this principle to strip Americans of their rights.

Behind Covid’s public spectacles – the memorable headlines of forced church closings, house arrest edicts, playground prohibitions, and bans on “unnecessary walking” – there was a coordinated effort to overthrow constitutional liberties.

Bureaucrats, federal officers, and elected officials colluded with Big Tech firms to accomplish unconstitutional aims. In doing so, they augmented government power and enriched Silicon Valley companies.

A federal-corporate collusion supplanted the American system of separation of powers and individual rights. This coup d’état usurped the Constitution and created a new ruling order of suppression and surveillance.

Suppression, Censorship, and the First Amendment

“Government has no power to restrict expression because of its message, its ideas, its subject matter or its content,” the Supreme Court decided in Ashcroft v. ACLU (2002). Yet, the Biden White House and the federal government seized that power under the shadow of Covid. They coerced, colluded, and encouraged social media companies to suppress speech that deviated from their preferred messaging.

The White House’s conduct in July 2021 exemplified this behavior. Publicly, officials launched a pressure campaign; privately, they conducted a direct censorship operation.

On July 15, 2021, White House Press Secretary Jen Psaki discussed social media “disinformation” related to Covid-19 at her press briefing. “Facebook needs to move more quicky to remove harmful, violative posts,” she told reporters.

Her boss, President Joe Biden, spoke with the press the following day. Discussing social media companies, he remarked, “They’re killing people.”

Biden later clarified his remarks, explaining that he was advocating for censorship, not making personal attacks. “My hope is that Facebook, instead of taking it personally that somehow I’m saying ‘Facebook is killing people,’ that they would do something about the misinformation,” he explained.

That week, White House Communications Director Kate Bedingfield appeared on MSNBC and said that social media “should be held accountable” and reiterated President Biden’s support for private actors to restrict the speech of journalists, advocates, and citizens.

Privately, government officials called for direct censorship of American citizens and journalists.

Twitter worked with the government to stifle criticism of the Biden administration related to Covid. For example, White House officials met with Twitter content moderators in April 2021 to coordinate censorship initiatives. White House officials specifically pressed Twitter on “why Alex Berenson [a journalist] hasn’t been kicked off from the platform.”

White House senior adviser Andy Slavitt continued to encourage Twitter to remove Berenson from the platform, and his efforts succeeded when Berenson received a “permanent ban” in August 2021, just weeks after the White House’s public pressure campaign.

White House officials encouraged Big Tech groups to censor Robert F. Kennedy Jr. and Tucker Carlson for questioning vaccine efficacy. White House Director of Digital Strategy Rob Flaherty demanded to know why Facebook had not removed a video of Carlson reporting the announcement that Johnson & Johnson’s vaccine was linked to blood clots.

In January 2023, Reason revealed internal Facebook emails concerning the federal government’s campaign to censor users that deviated from Covid orthodoxy.

Robby Soave explains:

Facebook routinely asked the government to vet specific claims, including whether the virus was “man-made” rather than zoonotic in origin. (The CDC responded that a man-made origin was “technically possible” but “extremely unlikely.”) In other emails, Facebook asked: “For each of the following claims, which we’ve recently identified on the platform, can you please tell us if: the claim is false; and, if believed, could this claim contribute to vaccine refusals?”

These initiatives stifled dissent by infringing on American citizens’ speech; in doing so, they stripped millions of Americans of their First Amendment right to receive information.

In Martin v. City of Struthers (1941), Justice Hugo Black wrote that the First Amendment “embraces the right to distribute literature, and necessarily protects the right to receive it.” Nearly thirty years later, Justice Thurgood Marshall wrote, “it is now well established that the Constitution protects the right to receive information and ideas” in Stanley v. Georgia.

In defiance of this precedent, bureaucrats specifically sought to interfere with citizens’ right to hear criticism of government Covid policy. In his demands to Facebook regarding Carlson’s coverage of the J&J vaccine, Flaherty wrote, “There’s 40,000 shares on the video. Who is seeing it now? How many?”

Flaherty’s censorship pressure continued, “How was this not violative… What exactly is the rule for removal vs. demoting?”

Republican state attorneys general have sued the Biden administration for allegedly violating the First Amendment in its censorship promotion. Their case – Schmitt v. Biden – has uncovered communications between the Biden White House and social media companies.

The emails discovered in the case reveal an ongoing collusion to stifle dissent. Over fifty government bureaucrats, twelve federal agencies, and representatives from companies including Google, Twitter, and Facebook worked together to coordinate censorship efforts.

For example, Facebook employees met with officials at the Department of Health and Human Services the week after President Biden accused the company of “killing people.” A Facebook executive followed up with the HHS officials after the meeting:

“I wanted to make sure you saw the steps we took just this past week to adjust policies on what we are removing with respect to misinformation, as well as steps taken to further address the ‘disinfo dozen’: we removed 17 additional Pages, Groups and Instagram accounts tied to the disinfo dozen (so a total of 39 Profiles, Pages, Groups and IG accounts deleted thus far, resulting in every member of the disinfo dozen having had at least one such entity removed).”

In Bantam Books v. Sullivan (1963), the Court ruled that Rhode Island violated the First Amendment when a state commission advised book distributors against publishing certain content. In a concurring opinion, Justice Douglas wrote, “the censor and First Amendment rights are incompatible.”

Despite this constitutional incompatibility, the government deliberately and repeatedly encouraged and coerced private companies into censoring Americans’ speech.

Meanwhile, the fourth estate actively participated and profited from the censorship regime.

Amidst its efforts to censor dissent, the federal government siphoned tax dollars to media networks – including CNN, Fox News, and The Washington Post – to promote its official narrative. The US Department of Health and Human Services paid media outlets $1 billion to “strengthen vaccine confidence” in 2021 as part of a “comprehensive media campaign.”

At the same time, legacy media outlets like The Washington Post, The BBC, Reuters, and ABC partnered with Google, YouTube, Meta, and Twitter in the “Trusted News Initiative” to coordinate censorship initiatives. In “The Twitter Files,” journalist Matt Taibbi revealed that these tech firms held “regular meetings” – often with government officials – to discuss efforts to suppress speech critical of government narratives.

In summary, the government cannot restrict speech based on content, cannot decide what information a citizen can obtain, cannot advise private companies against publishing speech, and cannot use private entities to encourage unconstitutional aims. Yet our government launched a coordinated campaign, publicly and privately, to augment its powers and suppress citizens’ speech.

Surveillance. General Warrants, and the Fourth Amendment

In addition to suppressing dissent, the federal government’s Covid response usurped the protections of the Fourth Amendment in its partnership with Big Tech data brokers.

The Fourth Amendment guarantees citizens the right to be free from unreasonable government searches and seizures. Designed in response to the British practice of “general warrants,” the Framers sought to end a police system that provided the government nearly unrestrained access to searching colonists, their homes, and their belongings.

Since its ratification in 1791, the Supreme Court has maintained that technological advancements do not diminish the right of citizens to be secure from unreasonable searches and seizures.

For example, in Kyllo v. United States (2001), the Court ruled that the use of thermal imagery to search a home violated the Fourth Amendment. Chief Justice Roberts later explained that Government – absent a warrant – “could not capitalize” on new technology to strip citizens’ Fourth Amendment rights.

In 2012, a unanimous Court ruled that warrantless GPS tracking violated the defendant’s Fourth Amendment rights in United States v. Jones.

Six years later, the Court again ruled that the Government violated a defendant’s Fourth Amendment rights when it tracked a suspect by acquiring his cell phone location data from his wireless carrier.

In that case – Carpenter v. United States – Chief Justice Roberts wrote that the Fourth Amendment’s “basic purpose” is to “safeguard the privacy and security of individuals against arbitrary invasions by government officials.”

During Covid, however, the United States government violated these legal holdings. Despite repeated rulings that the Government cannot use new technologies to infringe Fourth Amendment rights and clear precedent regarding the use of GPS and cell phone location data, the CDC used taxpayer funds to purchase Americans’ cell phone data from data broker SafeGraph.

In May 2022, Vice revealed that the CDC used cell phone data to track the location of tens of millions of Americans during Covid.

At first, the agency used this data to track compliance with lockdown orders, vaccine promotions, attendance at churches, and other Covid-related initiatives. Additionally, the agency explained that the “mobility data” will be available for further “agency-wide use” and “numerous CDC priorities.”

SafeGraph sold this information to federal bureaucrats, who then used the data to spy on millions of Americans’ behavior, including where they visited and whether they complied with house arrest orders. This created a digital “general warrant” unshackled from Constitutional restraints.

In other words, big tech firms profited from surreptitious schemes in which the U.S. Government used taxpayer dollars to violate the Fourth Amendment rights of the citizens that fund their operations. Unelected officials at the CDC then tracked Americans’ movements, religious observances, and medical activity.

A similar process occurred at the state level.

In Massachusetts, the state Department of Public Health worked with Google to secretly install Covid-tracing software on citizens’ smartphones. The public-private partnership created “MassNotify,” an app that tracks and traces people’s locations. The program appeared on citizens’ phones without their consent.

Robert Wright, a Massachusetts resident, and Johnny Kula, a New Hampshire resident who commutes to Massachusetts to work every day, have brought a legal action against the state. “Conspiring with a private company to hijack residents’ smartphones without the owners’ knowledge or consent is not a tool that the Massachusetts Department of Public Health may lawfully employ in its efforts to combat COVID-19,” they say in their complaint.

Public officials also used citizens’ GPS data to support their election campaigns in 2020. Voter analytics firm PredictWise boasted that it used “nearly 2 billion GPS pings” from Americans’ cell phones to assign citizens a “COVID-19 decree violation” score and a “COVID-19 concern” score.

PredictWise explained that the Arizona Democratic Party used these “scores” and collections of personal data to influence voters to support US Senator Mark Kelly. The firm’s clients include the Democratic parties of Florida, Ohio, and South Carolina.

Politicians and government agencies repeatedly and deliberately augmented their power by tracking their citizens and thus depriving them of their Fourth Amendment rights. They then analyzed that information, assigned citizens compliance “scores,” and used the spyware to manipulate voters to maintain their positions of authority.

In effect, government forces used Covid as a pretext to return to the system of general warrants that the Framers designed the Fourth Amendment to abolish. Government officials gained access to citizens’ movements, locations, and travel patterns, and they used the citizens’ tax dollars to do it.

The collusion of government and corporate power siphoned millions of dollars from taxpayers while abolishing the Fourth Amendment safeguards that protect citizens against arbitrary invasions by government officials.

In 1975, Senator Frank Church led a government investigation into intelligence agencies’ domestic spy programs that targeted groups including anti-war protestors and civil rights leaders. Senator Church, speaking of the agencies’ covert capability nearly 50 years ago, warned, “That capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide.”

Not only did the government turn its capability on the American people, but it recruited the most powerful information companies in the history of the world to advance its agenda, leaving American citizens poorer, stripped of their rights, and left with no place to hide.

How did it happen here?

Most of these Constitutional violations will never have their day in court. In addition to stripping Americans of their rights, the ruling class has insulated Covid’s hegemonic forces from legal liability.

No matter the result of the ongoing cases, including Schmidt v. Biden and Wright v. Mass. Department of Public Health – the questions loom: How did we lose our Bill of Rights so quickly? How did it happen here?

Justice Antonin Scalia noted that the Bill of Rights cannot serve as a safeguard against tyranny on its own. “If you think a bill of rights is what sets us apart, you’re crazy,” he said. “Every banana republic in the world has a bill of rights.”

The key to safeguarding liberty, according to Scalia, is the separation of powers.

Commenting on the Constitution of the Soviet Union’s extensive guarantees of freedoms of speech, assembly, political affiliation, religion, and conscience, Scalia wrote:

“They were not worth the paper they were printed on, as are the human rights guarantees of a large number of still-extant countries governed by Presidents-for-life. They are what the Framers of our Constitution called ‘parchment guarantees,’ because the real constitutions of those countries—the provisions that establish the institutions of government—do not prevent the centralization of power in one man or one party, thus enabling the guarantees to be ignored. Structure is everything.”

Our Constitution created a structure of government with multiple levels of separation of powers. But, to the detriment of Americans’ liberties, the federal government and Big Tech supplanted that structure with a federal-corporate partnership devoid of constitutional restraints.

Georgetown Law Professor Randy Barnett describes the Constitution as “the law that governs those who govern us.” But those who govern us deliberately disregarded constraints on their own authority and led a coup against their citizens in partnership with Big Tech.

Covid served a pretext for a convergence of power that left our Bill of Rights as little more than a “parchment guarantee.”