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Ketanji Brown Jackson Defenestrates the First Amendment

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From the Brownstone Institute

At her confirmation hearings, Justice Ketanji Brown Jackson claimed she lacked the expertise to define “woman.” Just two years later, she did not hesitate to redefine the First Amendment and free speech as she advocated for the regime to bulldoze our Constitutional liberties provided they offer sufficiently sanctimonious justifications.

At Monday’s oral arguments in Murthy v. Missouri, Jackson said her “biggest concern” was that the injunction, which prohibits the Biden Administration from colluding with Big Tech to censor Americans, may result in “the First Amendment hamstringing the Government.”

This, apparently, was of greater concern to Jackson than the revelations that the Intelligence Community held ongoing meetings with social media companies to coordinate censorship demands, that the White House explicitly demanded the censorship of journalists, and that the Department of Homeland Security was instrumental in manipulating citizens ahead of the 2020 presidential election.

But according to Jackson’s outlook, those facts may have actually been encouraging. She scolded counsel, “Some might say the Government actually has a duty to take steps to protect the citizens of this country.”

Jackson’s formulation inverts the structure of constitutional liberties. The Constitution does not limit the powers of citizens; it restrains our elected officials from tyrannical overreach. It is the law that “governs those who govern us,” as law professor Randy Barnett explains.

Impediments to state powers are not flaws in the system; they are the essence of the design. But Jackson offers no deference to these constitutional restraints. Instead, she explained, “I am really worried about…the First Amendment operating in an environment of threatening circumstances.”

Of course, the First Amendment was designed for environments of threatening circumstances. American history offers no shortage of threats that could be justified to abridge our liberties – from Cholera and Yellow Fever to polio and Spanish flu; from the Red Coats and the XYZ Affair to the Red Army and the War on Terror; from conquering the west to defeating the Nazis.

The Framers understood the ineradicable threat that power poses to liberty, which is why they were unequivocal that the Government cannot “abridge” constitutionally protected speech, no matter the moral surety of the censors.

At times, the country has failed to live up to this promise, but those instances are rarely heralded. Jackson’s deference to emergencies or “threatening circumstances” is precisely the logic that the Court used to intern the Japanese and jail Eugene Debs. More recently, censors invoked that familiar paternalism to justify censorship of the origin of Covid and the veracity of Hunter Biden’s laptop.

But the Constitution demands a different path, as explained by Louisiana Solicitor General Benjamin Aguinaga in response to Jackson. The choice between liberty and safety is a false binary. “The Government can’t just run rampant pressuring the platforms to censor private speech,” Aguinaga explained.

The Biden Administration can promote its interests, deliver its own speeches, and purchase its preferred PSAs. It cannot, however, use vapid slogans of paternalism to usurp the First Amendment.

Justice Alito appeared to see through the justifications for censorship in his questioning of Brian Fletcher, Biden’s Deputy Solicitor General. He asked:

“When I see that the White House and federal officials repeatedly say that Facebook and the federal government should be ‘partners,’ [or] ‘we are on the same team.’ [GOVERNMENT] Officials are demanding answers, ‘I want an answer. I want it right away.’ When they’re unhappy, they curse them out…The only reason why this is taking place is that the federal government has got Section 230 and antitrust in its pocket…And so it’s treating Facebook and these other platforms like their subordinate.Would you do that to the New York Times, The Wall Street Journal, the Associated Press, or any other big newspaper or wire service?”

Meanwhile, Jackson could not grasp the most basic tenets of the First Amendment or free speech. Instead, she fear-mongered with absurd questions of whether the State has a compelling interest in stopping teens from “jumping out of windows.”

In the process, Jackson revealed her intent to defenestrate the First Amendment alongside her fictitious adolescent victims. Her “biggest concern” is that the First Amendment may hinder the regime’s pursuit of power, just as it was designed to do.

Tyranny has long draped itself in cloaks of benevolent phrasing. The judiciary is meant to safeguard our liberties from aspiring tyrants, even if they espouse the socially fashionable shibboleths of the day. Jackson does not just abdicate that responsibility; she appears to abhor it. We must hope her peers on the Court retain their oath to the Constitution.

It was especially striking for many people listening to these arguments to become aware of the astonishing lack of sophistication on the part of some of these Justices, Jackson in particular, and others had their moments.

The sidewalks outside the court were filled with actual experts, people who have followed this case closely since its inception, victims of the censorship industrial complex, and people who have read every brief and scoured through the evidence.

These actual experts and dedicated citizens who know the facts inside and out stood on the sidewalks outside the case while the plaintiffs’ attorney scrambled within the time limits to introduce the topic, possibly for the first time, to these men and women who hold the future of freedom in their hands.

Unbeknownst to themselves, the Justices themselves are victims of the censorship industrial complex. They could themselves have been plaintiffs in this very case, since they too are consumers of information using technology. And yet, given their status and position, they had to pretend to be above it all, knowing what others do not know, though clearly they did not.

It was frustrating scene, to say the least.

Sadly, the oral arguments became bogged down in minutiae over plaintiff standing, the particular wording of this or that email, various farflung hypotheticals, and hand wringing over what will become of the influence of our overlords should the injunction take place. Lost in this thicket of confusion was the bigger trajectory: the clear ambition on the part of the administrative state to become the master curator of the Internet in order to disable the whole promise of a democratized communication technology and introduce full control of the public mind.

A clear-headed court would strike down the entire ambition. That will not happen, apparently. That said, perhaps it is a very good sign that at least, and after so many years of this deep-state meddling in information flows, the issue has finally gotten the attention of the highest court.

May this day become a catalyst for what is needed most of all: the formation of a hard-core of informed citizens who absolutely refuse to go along with the censorship no matter what.

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  • 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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Brownstone Institute

A Coup Without Firing a Shot

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From the Brownstone Institute

BY Jeffrey A. TuckerJEFFREY A. TUCKER  

We all have a different starting place and journey but each of us has the following in common. We’ve realized that official sources, the ones we’ve trusted in the past, are not going to make any sense of the above for us. We have to seek out alternatives and put the story together ourselves. And this we must do because the only other choice is to accept that all of the above consists of a random series of disconnected and pointless events, which is surely not true.

The last few years can be tracked at two levels: the physical reality around us and the realm of the intellectual, mental, and psychological.

The first level has presented a chaotic narrative of the previously unthinkable. A killer virus that turned out to be what many people said it was in February 2020: a bad flu with a known demographic risk best treated with known therapeutics. But that template and the ensuing campaign of fear and emergency rule gave rise to astonishing changes in our lives.

Social functioning was wholly upended as schools, businesses, churches, and travel were ended by force. The entire population of the world was told to mask up, despite vast evidence that doing so achieved nothing in terms of stopping a respiratory virus.

That was followed by a breathtaking propaganda campaign for a shot that failed to live up to its promise. The cure for the disease itself caused tremendous damage to health including death, a subject about which everyone cared intensely before the shot and then strangely forgot about after.

Protests against the goings-on were met with media smears, shutdowns, and even the cancellation of bank accounts. However, and simultaneously, other forms of protest were encouraged, insofar as they were motivated by a more proper political agenda against structural injustices in the old system of law and order. That was a strange confluence of events, to say the least.

In the midst of this, which was wild enough, came new forms of surveillance, censorship, corporate consolidation, an explosion of government spending and power, rampant and global inflation, and hot wars from long-running border conflicts in two crucial regions.

The old Declarations of rules on the Internet put free speech as a first principle. Today, the hosting website of the most famous one, signed by Amnesty International and the ACLU, is gone, almost as if it never existed. In 2022, it came to be replaced by a White House Declaration on the Future of the Internet, that extols stakeholder control as the central principle.

All the while, once-trusted sources of information – media, academia, think tanks – have steadfastly refused to report and respond in truthful ways, leading to a further loss of public trust not just in government and politics but also in everything else, including corporate tech and all the higher order sectors of the culture.

Also part of this has been a political crisis in many nations, including the use of sketchy election strategies justified by epidemiologic emergency: the only safe way to vote (said the CDC) is absentee via the mails. Here we find one of many overlapping parallels to a scenario hardly ever imagined: infectious disease deployed as a cover for political manipulation.

Crucially and ominously, all of these mind-blowing developments took place in roughly similar ways the world over, and with the same language and model. Everywhere people were told “We are all in this together,” and that social distancing, masking, and vaxxing was the correct way out. Media was also censored everywhere, while anti-lockdown protestors (or even those who simply wanted to worship together in peace) were treated not as dissidents to be tolerated but irresponsible spreaders of disease.

Can we really pretend that all of this is normal, much less justified? The exhortation we receive daily is that we can and must.

Really? At what point did you realize that you had to start thinking for yourself?

We all have a different starting place and journey but each of us has the following in common. We’ve realized that official sources, the ones we’ve trusted in the past, are not going to make any sense of the above for us. We have to seek out alternatives and put the story together ourselves. And this we must do because the only other choice is to accept that all of the above consists of a random series of disconnected and pointless events, which is surely not true.

That leads to the second layer of comprehension; the intellectual, mental, and psychological. Here is where we find the real drama and incalculable difficulties.

At the dawn of lockdowns, what appeared to be a primitive public health error seemed to be taking place. It seemed like some scientists at the top, who gained an implausible amount of influence over government policy, had forgotten about natural immunity and were under the impression that it was good for health to stay home, be personally isolated, avoid exercise, and eat only takeout food. Surely such preposterous advice would be revealed soon as the nonsense it was.

How in the world could they be so stupid? How did they gain so much influence, not just nationally but all over the world? Did the whole of humanity suddenly forget about all known science in every field from virology to economics to psychology?

As time went on, more and more anomalies appeared that made that judgment seem naïve. As it turns out, what was actually taking place had something to do with a move on the part of security and intelligence services. It was they who were given rule-making authority on March 13, 2020, and that’s why so much of what we needed to know was and is considered classified.

There were early initial reports that the virus itself might have been leaked from a US-backed lab in Wuhan, which introduces the entire subject of the US bioweapons program. This is a very deep rabbit hole itself, thoroughly exposed in Robert F. Kennedy, Jr.’s The Wuhan Cover-Up. There was a reason that topic was censored: it was all true. And as it turns out, the vaccine itself was able to bypass the normal approval process by slipping through under the cover of emergency. In effect, it came pre-approved by the military.

As the evidence continues to roll in, more and more rabbit holes appear, thousands of them. Each has a name: Pharma, CCP, WHO, Big Tech, Big Media, CBDCs, WEF, Deep State, Great Reset, Censorship, FTX, CISA, EVs, Climate Change, DEI, BlackRock, and many more besides. Each of these subject areas has threads or thousands of them, each connecting to more and to each other. At this point, it is simply not possible for a single person to follow it all.

To those of us who have been steeped in following the revelations day by day, and trying to keep up with putting them together into a coherent model of what happened to us, and what is still going on, the ominous reality is that the traditional understanding of rights, liberties, law, business, media, and science were dramatically overthrown in the course of just a few months and years.

Nothing operates today as it did in 2019. It’s not just that functioning broke. It was broken and then replaced. And the surreptitious coup d’état with no shots fired is still ongoing, even if that is not the headline.

Of this fact, many of us today are certain. But how common is this knowledge? Is it a vague intuition held by many members of the public or is it known in more detail? There are no reliable polls. We are left to guess. If any of us in 2019 believed we had our finger on the pulse of the national mood or public opinion generally, we certainly do not anymore.

Nor do we have access to the inner workings of government at the highest levels, much less the conversations going on among the winners of our age, the well-connected ruling elites who seemed to have gamed the entire system for their own benefit.

It’s so much easier to regard the whole thing as a giant confusion or accident on grounds that only cranks and crazies believe in conspiracy theories. The trouble with that outlook is that it posits something even more implausible; that something this gigantic, far-reaching, and dramatic could have happened with no real intentionality or purpose or that it all fell together as a huge accident.

Brownstone Institute has published more than 2,000 articles and 10 books exploring all over the above topics. Other venues and friends are out there helping us with this research and discovery, issue by issue. Even so, a great deal of responsibility falls on this one institution, the main work of which is providing support for dissident and displaced voices, which is implausible since it was only founded three years ago. We are deeply grateful for our supporters and would welcome you to join them.

As for the intellectuals we once revered for their curiosity and wisdom, most seem to have gone into hiding, either unable to adapt to the new realities or just unwilling to risk their careers by exploring hard topics. It’s understandable but still tragic. Most are happy to pretend like nothing happened or celebrate the change as nothing but progress. As for journalists, the New York Times publishes daily commentaries dismissing the Constitution as a dated anachronism that has to go and no one thinks much about it.

There is a lot to sort out. So much has changed so quickly. No sooner than the dust seems to be settling from one upheaval, there is another and then another. Keeping up with it all causes a level of psychological brain scramble on a scale we’ve never previously experienced.

It’s easier to wait for the historians to tell the next generation what happened. But maybe, just maybe, by stepping up and telling the story as we see it in real time, we can make a difference in stopping this madness and restoring some sane and normal freedom back to the world.

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  • 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

Did Lockdowns Set a Global Revolt in Motion?

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From the Brownstone Institute

BY Jeffrey A. TuckerJEFFREY A. TUCKER 

It does seem like the backlash has empowered populist movements all over the world. We see them in the farmers’ revolt in Europe, the street protests in Brazil against a sketchy election, the widespread discontent in Canada over government policies, and even in migration trends out of US blue states toward red ones.

My first article on the coming backlash – admittedly wildly optimistic – went to print April 24, 2020. After 6 weeks of lockdown, I confidently predicted a political revolt, a movement against masks, a population-wide revulsion against the elites, a demand to reject “social distancing” and streaming-only life, plus widespread disgust at everything and everyone involved.

I was off by four years. I wrongly assumed back then that society was still functioning and that our elites would be responsive to the obvious flop of the whole lockdown scheme. I assumed that people were smarter than they proved to be. I also did not anticipate just how devastating the effects of lockdown would be: in terms of learning loss, economic chaos, cultural shock, and the population-wide demoralization and loss of trust.

The forces that set in motion those grim days were far more deep than I knew at the time. They involved a willing complicity from tech, media, pharma, and the administrative state at all levels of society.

There is every evidence that it was planned to be exactly what it became; not just a foolish deployment of public health powers but a “great reset” of our lives. The newfound powers of the ruling class were not given up so easily, and it took far longer for people to shake off the trauma than I had anticipated.

Is that backlash finally here? If so, it’s about time.

New literature is emerging to document it all.

The new book White Rural Rage: The Threat to American Democracy is a viciously partisan, histrionic, and gravely inaccurate account that gets nearly everything wrong but one: vast swaths of the public are fed up, not with democracy but its opposite of ruling class hegemony. The revolt is not racial and not geographically determined. It’s not even about left and right, categories that are mostly a distraction. it’s class-based in large part but more precisely about the rulers vs. the ruled.

With more precision, new voices are emerging among people who detect a “vibe change” in the population. One is Elizabeth Nickson’s article “Strongholds Falling; Populists Seize the Culture.” She argues, quoting Bret Weinstein, that “The lessons of [C]ovid are profound. The most important lesson of Covid is that without knowing the game, we outfoxed them and their narrative collapsed…The revolution is happening all over the socials, especially in videos. And the disgust is palpable.”

A second article is “Vibe Shift” by Santiago Pliego:

The Vibe Shift I’m talking about is the speaking of previously unspeakable truths, the noticing of previously suppressed facts. I’m talking about the give you feel when the walls of Propaganda and Bureaucracy start to move as you push; the very visible dust kicked up in the air as Experts and Fact Checkers scramble to hold on to decaying institutions; the cautious but electric rush of energy when dictatorial edifices designed to stifle innovation, enterprise, and thought are exposed or toppled. Fundamentally, the Vibe Shift is a return to—a championing of—Reality, a rejection of the bureaucratic, the cowardly, the guilt-driven; a return to greatness, courage, and joyous ambition.

We truly want to believe this is true. And this much is certainly correct: the battle lines are incredibly clear these days. The media that uncritically echo the deep-state line are known: SlateWiredRolling StoneMother Jones, New RepublicNew Yorker, and so on, to say nothing of the New York Times. What used to be politically partisan venues with certain predictable biases are now more readily described as ruling-class mouthpieces, forever instructing you precisely how to think while demonizing disagreement.

After all, all of these venues, in addition to the obvious case of the science journals, are still defending the lockdowns and everything that followed. Rather than express regret for their bad models and immoral means of control, they have continued to insist that they did the right thing, regardless of the civilization-wide carnage everywhere in evidence, while ignoring the relationship between the policies they championed and the terrible results.

Instead of allowing their mistakes to change their own outlook, they have adapted their own worldview to allow for snap lockdowns anytime they deem them necessary. In holding this view, they have forged a view of politics that it is embarrassingly acquiescent to the powerful.

The liberalism that once questioned authority and demanded free speech seems extinct. This transmogrified and captured liberalism now demands compliance with authority and calls for further restrictions on free speech. Now anyone who makes a basic demand for normal freedom – to speak or choose one’s own medical treatment or to decline to wear a mask – can reliably anticipate being denounced as “right-wing” even when it makes absolutely no sense.

The smears, cancellations, and denunciations are out of control, and so unbearably predictable.

It’s enough to make one’s head spin. As for the pandemic protocols themselves, there have been no apologies but only more insistence that they were imposed with the best of intentions and mostly correct. The World Health Organization wants more power, and so does the Centers for Disease Control and Prevention. Even though the evidence of the failure of pharma pours in daily, major media venues pretend that all is well, and thereby out themselves as mouthpieces for the ruling regime.

The issue is that major and unbearably obvious failures have never been admitted. Institutions and individuals who only double down on preposterous lies that everyone knows are lies only end up discrediting themselves.

That’s a pretty good summary of where we are today, with vast swaths of elite culture facing an unprecedented loss of trust. Elites have chosen the lie over truth and cover-up over transparency.

This is becoming operationalized in declining traffic for legacy media, which is shedding costly staff as fast as possible. The social media venues that cooperated closely with government during the lockdowns are losing cultural sway while uncensored ones like Elon Musk’s X are gaining attention. Disney is reeling from its partisanship, while states are passing new laws against WHO policies and interventions.

Sometimes this whole revolt can be quite entertaining. When the CDC or WHO posts an update on X, when they allow comments, it is followed by thousands of reader comments of denunciation and poking fun, with flurries of comments to the effect of “I will not comply.”

DEI is being systematically defunded by major corporations while financial institutions are turning on it. Indeed, the culture in general has come to regard DEI as a sure indication of incompetence. Meanwhile, the outer reaches of the “great reset” such as the hope that EVs would replace internal combustion have come to naught as the EV market has collapsed, along with consumer demand for fake meat to say nothing of bug eating.

As for politics, yes, it does seem like the backlash has empowered populist movements all over the world. We see them in the farmers’ revolt in Europe, the street protests in Brazil against a sketchy election, the widespread discontent in Canada over government policies, and even in migration trends out of US blue states toward red ones. Already, the administrative state in D.C. is working to secure itself against a possible unfriendly president in the form of Trump or RFK, Jr.

So, yes, there are many signs of revolt. These are all very encouraging.

What does all this mean in practice? How does this end? How precisely does a revolt take shape in an industrialized democracy? What is the mostly likely pathway for long-term social change? These are legitimate questions.

For hundreds of years, our best political philosophers have opined that no system can function in a sustainable way in which a huge majority is coercively governed by a tiny elite with a class interest in serving themselves at public expense.

That seems correct. In the days of the Occupy Wall Street movement of 15 years ago, the street protesters spoke of the 1 percent vs. the 99 percent. They were speaking of those with the money inside the traders’ buildings as opposed to the people on the streets and everywhere else.

Even if that movement misidentified the full nature of the problem, the intuition into which it tapped spoke to a truth. Such a disproportionate distribution of power and wealth is dangerously unsustainable. Revolution of some sort threatens. The mystery right now is what form this takes. It’s unknown because we’ve never been here before.

There is no real historical record of a highly developed society ostensibly living under a civilized code of law that experiences an upheaval of the type that would be required to unseat the rulers of all the commanding heights. We’ve seen political reform movements that take place from the top down but not really anything that approximates a genuine bottom-up revolution of the sort that is shaping up right now.

We know, or think we know, how it all transpires in a tinpot dictatorship or a socialist society of the old Soviet bloc. The government loses all legitimacy, the military flips loyalties, there is a popular revolt that boils over, and the leaders of the government flee. Or they simply lose their jobs and take up new positions in civilian life. These revolutions can be violent or peaceful but the end result is the same. One regime replaces another.

It’s hard to know how this translates to a society that is heavily modernized and seen as non-totalitarian and even existing under the rule of law, more or less. How does revolution occur in this case? How does the regime come around to adapting itself to a public revolt against governance as we know it in the US, UK, and Europe?

Yes, there is the vote, if we can trust that. But even here, there are the candidates, which are that for a reason. They specialize in politics, which does not necessarily mean doing the right thing or reflecting the aspirations of the voters behind them. They are responsive to their donors first, as we have long discovered. Public opinion can matter but there is no mechanism that guarantees a smoothly responsive pathway from popular attitudes to political outcomes.

There is also the pathway of industrial change, a migration of resources out of legacy venues to new ones. Indeed, in the marketplace of ideas, the amplifiers of regime propaganda are failing but we also observe the response: widened censorship. What’s happening in Brazil with the full criminalization of free speech can easily happen in the US.

In social media, were it not for Elon’s takeover of Twitter, it’s hard to know where we would be. We have no large platform in which to influence the culture more broadly. And yet the attacks on that platform and other enterprises owned by Musk are growing. This is emblematic of a much more robust upheaval taking place, one that suggests change is on the way.

But how long does such a paradigm shift take? Thomas Kuhn’s The Structure of Scientific Revolutions  is a bracing account of how one orthodoxy migrates to another not by the ebb and flow of proof and evidence but through dramatic paradigm shifts. An abundance of anomalies can wholly discredit a current praxis but that doesn’t make it go away. Ego and institutional inertia perpetuate the problem until its most prominent exponents retire and die and a new elite replaces them with different ideas.

In this model, we can expect that a failed innovation in science, politics, or technology could last as long as 70 years before finally being displaced, which is roughly how long the Soviet experiment lasted. That’s a depressing thought. If this is true, we still have another 60 plus years of rule by the management professionals who enacted lockdowns, closures, shot mandates, population propaganda, and censorship.

And yet, people say that history is moving faster now than in the past. If a future of freedom is ours just lying in wait, we need that future here sooner rather than later, before it is too late to do anything about it.

The slogan became popular about ten years ago: the revolution will be decentralized with the creation of robust parallel institutions. There is no other path. The intellectual parlor game is over. This is a real-life struggle for freedom itself. It’s resist and rebuild or doom.

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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