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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

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  • 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.

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Brownstone Institute

Witnessing the Media’s Covid Coverage from the Inside

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From the Brownstone Institute

BY Gabrielle BauerGABRIELLE BAUER 

If right-leaning outlets wanted my words and left-leaning ones did not, my Occam’s razor landed on ideology as the explanatory factor. So-called progressive media had a story to uphold and rejected any plot twist that threatened the cohesion of its narrative.

In the movie An Education, the main character gets sidetracked from her studies by a smooth-talking art dealer who turns out to be a criminal—and married. Our protagonist learns more from that experience than from all the medieval literature books she cracked open before. I have similar feelings about my own education. While I’ve been earning my living as a writer for the past 29 years, it’s only during the Covid era that I learned what the writing business is really about.

I wear two hats in my professional life: medical writer, creating materials for doctors and the healthcare industry, and feature-article journalist for consumer magazines. It wasn’t until Covid that I began pitching essays and op-eds for publication.

I started with a piece called “A Tale of Two Pandemic Cities,” which grew out of my short trip to Amsterdam and Stockholm in the summer of 2020, when the European Union opened its doors to “well-behaved” countries like Canada. The Covid hysteria in my country had made me desperate to visit more balanced parts of the world, and my trip didn’t disappoint. The article found a home at a Canadian outlet called Healthy Debate, though the editor asked me to temper my enthusiasm for the Swedish strategy with an acknowledgement of its risks. Happy to find a legit publisher for my first Covid piece, I capitulated, sort of. (You can judge for yourself.)

Thus began a feverish outpouring of essays, each one motivated by the same bewildered questions: What the hell is happening to the world, and why? Has everyone else gone mad, or is it me? I had written a few controversial articles throughout my career, but never before had I held a “dissenting view” about an issue that affected the whole world—or felt such an urgent need to express it.

The Great Divide

I quickly learned that certain news outlets were less open to my pieces than others. Salon, fuggedaboutit. Spiked Online, bull’s eye on the first try. Washington Post, not a chance. Wall Street Journal, a couple of “close, but no cigar” efforts and then finally a yes. It boiled down to this: the further left a publication leaned, the less likely it would publish my pieces (or even respond to my inquiries). I’m sure a statistician could write an equation to capture the trend.

So why the radio silence from left-wing publications? I doubted I was tripping their “Covid disinformation” radars, as my pieces had less to do with scientific facts than with social philosophy: the balance between safety and freedom, the perils of top-down collectivism, the abuse of the precautionary principle, that sort of thing. If right-leaning outlets wanted my words and left-leaning ones did not, my Occam’s razor landed on ideology as the explanatory factor. So-called progressive media had a story to uphold and rejected any plot twist that threatened the cohesion of its narrative. (Not that right-wing media behaved much differently. Such is the age of advocacy journalism.)

Most nerve-wracking of all were the publishers who accepted my articles but, like that first Healthy Debate editor, insisted I make substantive changes. Should I concede or push back? I did a bit of both. The most important thing, I told myself, was to make people reflect on the topsy-turvy policies that had freeze-framed the world. If I had to soften a few sentences to get the word out, so be it. I have the utmost respect for writers who refuse to yield on such matters, but 29 years of paying the bills from my writing have tipped my internal compass toward pragmatism.

I did stand my ground with an article on the mask wars. My thesis was that the endless and pointless disputes on social media—masks work, no they don’t, yes they do, no they don’t—had less to do with science than with worldview: irrespective of the data, social collectivists would find a way to defend masks, while my freedom-first compatriots would never countenance a perma-masked world.

One editor agreed to publish the piece if I mentioned that some studies favor masking, but I argued that quoting studies would undercut my central argument: that the forces powering the mask wars have little to do with how well they block viruses. He wouldn’t budge, so we parted ways and I found a more congenial home for the piece at the Ottawa Citizen.

Hidden Treasures

The process of pitching counternarrative essays, while arduous at times, led me to a smorgasbord of lesser-known, high-quality publications I never would have discovered otherwise. Topping the list was the glorious UnHerd, a UK news and opinion website with such daring thinkers as Mary Harrington and Kathleen Stock on its roster of contributors. The US-based Tablet magazine offered consistently fresh takes on Covid and never took the easy road in its analyses. In its pages I found one of the most powerful Covid essays I have ever read. The author, Ann Bauer (no relation), teased out the common threads between the “settled science” about the virus and the litany of quack theories about autism, which fed into her son’s death by suicide.

Then there was Quillette, whose contempt for the sacred cows of wokeism gave me a special thrill. True confession: I blew my chances with Quillette and it’s my own damned fault. Like many working writers, I sometimes pitch a piece to more than one outlet at the same time, a practice known as simultaneous submissions. This goes against protocol—we’re supposed to wait until an editor declines our pitch before approaching the next one—but the reality is that many editors never respond. With the deck thus stacked against us, we writers sometimes push the envelope, figuring the odds of getting multiple acceptances (and thus pissing off editors) are low enough to take the risk.

On this particular occasion, I submitted an article called “Lessons from my Half-Vaxxed Daughter” to three publications. Medpage Today responded right away, and I accepted their offer to publish it. (This was while Marty Makary, the dissident-lite physician who called out people’s distorted perception of Covid risk in mainstream media, led the editorial team.) A few hours later, Quillette’s Canadian editor sent me a slightly reworked version of my piece and told me when he planned to run it. I had no choice but to proffer a red-faced apology and admit I had already placed the article elsewhere. He never responded to my email or to a follow-up mea culpa a few weeks later—and has ignored everything I’ve submitted since then. I guess I’ll have to wait until he retires.

Podcast Polarities

Earlier this year, Brownstone Institute published my book Blindsight Is 2020which critiques the pandemic response through the lens of 46 dissident thinkers. By all standards a moderate book, it stays clear of any “conspiratorial” speculations about the origins of the pandemic or the political response to it. Instead, it focuses on the philosophical and ethical issues that kept me awake at night during the peak Covid years—the same themes I explore in my essays, but in greater depth. I wrote the book not just for “my team,” but for those who vehemently opposed my views—perhaps especially for them. I didn’t expect to change their minds as much as to help them understand why some of us objected so strenuously to the policies they cheered on.

After the book came out, a few podcasters invited me to their shows. I appeared on a Libertarian Institute podcast in which the host puffed on his hand-rolled cigarettes while we talked. I spoke to an amiable ex-con podcaster who made it his mission to share Ayn Rand’s ideas with the world. I bonded with Rupa Subramanya—a brilliant Canadian conservative journalist and podcaster featured in my book—over the Freedom Convoy we had both supported.

All told I’ve appeared on 22 podcasts to date, each of them hosted by a right-leaning or libertarian host. Crickets from the left. Not one to accept defeat, I’ve begun reaching out to left-leaning podcasters on my own. Perhaps one day I’ll hear back from them.

Covid media, like so much else in modern life, has become hopelessly fractured: the tall, left-facing trees dominate the landscape, telling the story of a deadly virus that we “did the best we could” to manage. Below the tree canopy lies the tangle of weeds that sway in the wind, whispering songs of freedom and warning against the totalitarian impulses that all too readily emerge during crises. While I’ll continue to throw my essays at those unyielding trees, the messy underbrush is where I’ve found my journalistic home.

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  • Gabrielle Bauer

    Gabrielle Bauer is a Toronto health and medical writer who has won six national awards for her magazine journalism. She has written three books: Tokyo, My Everest, co-winner of the Canada-Japan Book Prize, Waltzing The Tango, finalist in the Edna Staebler creative nonfiction award, and most recently, the pandemic book BLINDSIGHT IS 2020, published by the Brownstone Institute in 2023

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Brownstone Institute

Why So Many Countries Followed China’s Lockdown Example

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From the Brownstone Institute

BY Ron Brown RON BROWN

The answer to why countries followed China’s lockdowns is simple. They were told to do so by the World Health Organization (WHO). Why did the WHO tell them to do that? You might want to ask Dr. Bruce Aylward

A novel coronavirus that was 10 times deadlier than the flu had gripped the world in 2019. Without a compass to navigate the Covid-19 pandemic, all lessons learned from previous viral pandemics were thrown out the window. The World Health Organization was adamant, “This is not the flu.” Tony Fauci terrified the US House of Representatives with forecasts of disaster. Global populations were defenseless without a vaccine for the novel coronavirus that no one had ever seen before. The only viable defense at the time was to shut down the world.

China took the lead in lockdowns. Media exported from China showed people dropping dead in the streets. Caskets were piling up. Doors to buildings were sealed to lock in tenants. Throughout the panic, all reasonable alternative assessments of risks from the viral outbreak were ignored, censored, or rejected.

Nevertheless, I wondered whether a video of a person falling down in the street was really representative of the entire population. Were caskets piling up largely due to families fearing to claim them because of contamination with the virus? I noticed that the front doors to my local mall in Ontario, Canada had also been sealed, just like in China apartment buildings, but this was only to control access through a single entrance to the building, not to seal in customers.

My first clue that the emergency response to the outbreak of the coronavirus didn’t seem to make sense was when I heard Fauci tell television audiences that if our response seems to be overreacting, then we are probably doing the right thing. What? Since when is overreacting ever the right thing to do? Do generals win wars by overreacting?

I looked at the numbers that Fauci had presented to the US House of Representatives concerning case and infection fatalities of the coronavirus. They were backwards! His 10-times deadlier prediction was simply a made-up number! This was in March 2020. By May 2020 it was obvious that people were NOT dying at the inflated rate Fauci had predicted.

I published a paper on Fauci’s coronavirus mortality overestimations: Public Health Lessons Learned From Biases in Coronavirus Mortality Overestimation. But when I mentioned all this to my friends, they responded that the lower than predicted deaths just proved the lockdowns were working. Fauci was off the hook. Back to China.

WHO/China Joint Mission on Covid-19

The answer to why countries followed China’s lockdowns is simple. They were told to do so by the World Health Organization (WHO). Why did the WHO tell them to do that? You might want to ask Dr. Bruce Aylward, the Director of the WHO/China Joint Mission on Covid-19 investigating the coronavirus outbreak.

Aylward noticed a precipitous drop in novel coronavirus pneumonia (NCP) in China during February 2020. This was before China adopted WHO’s name of coronavirus disease 2019 (Covid-19). Upon seeing China’s surveillance data, Aylward announced the spectacular findings to the world and told the world to do what China has done and lock down. But he appeared to make a fundamental epidemiological error by wrongly assuming that the association of China’s lockdowns with lower deaths proved the lockdowns were working (just like my friends had told me).

Soon after in March 2020, China published its latest case definitions for NCP (Covid-19). In a nutshell, the definitions showed that no one could be declared to have died of the disease unless they had viral pneumonia (a severe acute respiratory illness), and only if no other virus normally associated with viral pneumonia was present, except SARS-CoV-2.

Coinfections with the coronavirus were not acceptable criteria, and what should have been a broad surveillance case definition with high sensitivity to monitor the spread of the virus within the population narrowed down considerably into an overly specific diagnostic case definition. That pretty much sealed the deal to declare Covid-19 deaths in only single digits for many months during the pandemic throughout China. This super-low outcome impressed Dr. Bruce Aylward enough in February 2020 to implore the world to lock down. Did we ever!

In the meantime, other countries used case and death definitions that went to the opposite extreme of China’s narrow diagnostic definitions, disseminating overinflated surveillance numbers without adjusting the numbers to remove bias. Even Fauci eventually admitted that reported cases and deaths counted WITH the coronavirus are much higher than cases and deaths counted FROM the coronavirus. Ironically, the WHO had previously published material on the correct use and interpretation of surveillance and diagnostic definitions in infectious disease outbreaks. Aylward didn’t appear to get the memo.

There is more to the story. Was this even really a novel coronavirus, or just a novel genetic sequence of the coronavirus showing greater detail than previously available? China supposedly received updated genetic sequencing technology in late 2019. They had abandoned surveillance of SARS in 2003 for lack of technology.

Now they were back in business again by the end of 2019. The team of virologists that reported the genetic sequence of the virus in Wuhan noted that it would be necessary to investigate the epidemiological evidence to guide infection control responses. Who has time for that? Shut it down!

If the novel coronavirus isn’t really so novel, this would explain why the lockdowns didn’t work. We had already known that lockdowns don’t work in other viral pandemics. Even China eventually gave up its Zero Covid Policy after it was obvious that lockdowns weren’t working. My friends owe me some explanations to justify their lockdown views. Maybe Fauci isn’t off the hook after all.

For more information on biases in Covid-19 case and death definitions, see my peer-reviewed article with cited references: Biases in COVID-19 Case and Death Definitions: Potential Causes and Consequences.

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