Brownstone Institute
Ketanji Brown Jackson Defenestrates the First Amendment
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.
Author
From the Brownstone Institute
The House report on HHS Covid propaganda is devastating. The Biden administration spent almost $1 billion to push falsehoods about Covid vaccines, boosters, and masks on the American people. If a pharma company had run the campaign, it would have been fined out of existence.
HHS engaged a PR firm, the Fors Marsh Group (FMG), for the propaganda campaign. The main goal was to increase Covid vax uptake. The strategy: 1. Exaggerate Covid mortality risk 2. Downplay the fact that there was no good evidence that the Covid vax stops transmission.
The propaganda campaign extended beyond vax uptake and included exaggerating mask efficacy and pushing for social distancing and school closures.
Ultimately, since the messaging did not match reality, the campaign collapsed public trust in public health.
The PR firm (FMG) drew most of its faulty science from the CDC’s “guidance,” which ignored the FDA’s findings on the vaccine’s limitations, as well as scientific findings from other countries that contradicted CDC groupthink.
The report details the CDC’s mask flip-flopping through the years. It’s especially infuriating to recall the CDC’s weird, anti-scientific, anti-human focus on masking toddlers with cloth masks into 2022.
President Biden’s Covid advisor Ashish K. Jha waited until Dec. 2022 (right after leaving government service) to tell the country that “[t]here is no study in the world that shows that masks work that well.” What took him so long?
In 2021, former CDC director, Rochelle Walensky rewrote CDC guidance on social distancing at the behest of the national teachers’ union, guaranteeing that schools would remain closed to in-person learning for many months.
During this period, the PR firm FMG put out ads telling parents that schools would close unless kids masked up, stayed away from friends, and got Covid-vaccinated.
In March 2021, even as the CDC told the American people that the vaxxed did not need to mask, the PR firm ran ads saying that masks were still needed, even for the vaxxed. “It’s not time to ease up” we were told, in the absence of evidence any of that did any good.
In 2021, to support the Biden/Harris administration’s push for vax mandates, the PR firm pushed the false idea that the vax stopped Covid transmission. When people started getting “breakthrough” infections, public trust in public health collapsed.
Later, when the FDA approved the vax for 12 to 15-year-old kids, the PR firm told parents that schools could open in fall 2021 only if they got their kids vaccinated. These ads never mentioned side effects like myocarditis due to the vax.
HHS has scrubbed the propaganda ads from this era from its web pages. It’s easy to see why. They are embarrassing. They tell kids, in effect, that they should treat other kids like biohazards unless they are vaccinated.
When the Delta variant arrived, the PR firm doubled down on fear-mongering, masking, and social distancing.
In September 2021, CDC director Walensky overruled the agency’s external experts to recommend the booster to all adults rather than just the elderly. The director’s action was “highly unusual” and went beyond the FDA’s approval of the booster for only the elderly.
The PR campaign and the CDC persistently overestimated the mortality risk of Covid infection in kids to scare parents into vaccinating their children with the Covid vax.
In Aug. 2021, the military imposed its Covid vax mandate, leading to 8,300 servicemen being discharged. Since 2023, the DOD has been trying to get the discharged servicemen to reenlist. What harm has been done to American national security by the vax mandate?
The Biden/Harris administration imposed the OSHA, CMS, and military vax mandates, even though the CDC knew that the Delta variant evaded vaccine immunity. The PR campaign studiously avoided informing Americans about waning vaccine efficacy in the face of variants.
The propaganda campaign hired celebrities and influencers to “persuade” children to get the Covid vax.
I think if a celebrity is paid to advertise a faulty product, that celebrity should be partially liable if the product harms some people.
In the absence of evidence, the propaganda campaign ran ads telling parents that the vaccine would prevent their kids from getting Long Covid.
With the collapse in public trust in the CDC, parents have begun to question all CDC advice. Predictably, the HHS propaganda campaign has led to a decline in the uptake of routine childhood vaccines.
The report makes several recommendations, including formally defining the CDC’s core mission to focus on disease prevention, forcing HHS propaganda to abide by the FDA’s product labeling rules, and revamping the process of evaluating vaccine safety.
Probably the most important recommendation: HHS should never again adopt a policy of silencing dissenting scientists in an attempt to create an illusion of consensus in favor of CDC groupthink.
You can find a copy of the full House report here. The HHS must take its findings seriously if there is any hope for public health to regain public.
Author
From the Brownstone Institute
You might think these are quite rare but not a bit of it; 13,200 of these were recorded in the last 12 months, and that’s around 36 a day, and they go on your record and sometimes mean you end up with no job. They also have new laws planned to control misinformation and disinformation, something not just confined to the UK. Similar laws are planned for Ireland, Australia, Canada, and the EU.
I’m envious. The US has something the UK doesn’t have, namely a First Amendment. Yes I know there are those who wish the US didn’t have it either, including, I understand, John Kerry and that woman who still thinks she beat Trump the first time around. Kerry kind of wishes that the First Amendment wasn’t quite so obstructive to his plans. But from where I stand, you should be thankful for it.
Not only does the UK not have a First Amendment, it doesn’t have a constitution either, and that makes for worrying times right now. Free speech has little currency with Gen Z and the way it looks, even less with the new UK Labour government. Even Elon Musk, who takes a surprising interest in our little country, has recently declared the UK a police state.
It’s not surprising. Take for instance the case of Alison Pearson, who had the police knocking on her door this Remembrance Sunday. They had come to warn her they were investigating a tweet she had posted a whole year ago which someone had complained about. They were investigating whether it constituted a Non-Crime Hate Incident or NCHI. Yes, you heard me right, a ‘non-crime’ hate incident and no, this is not something out of Orwell, it’s straight out of the College of Policing’s playbook.
If you haven’t heard of them, you can thank your First Amendment. In the UK you can get a police record for something you posted on X that someone else didn’t like and you haven’t even committed a crime. NCHIs are a way they have of getting around the law in the same way John Kerry would like to get around the First Amendment, except it’s real where I live.
Alison Pearson is a reporter for the Daily Telegraph, but that doesn’t mean she can write what she likes. When she asked the police what the tweet was which was objected to, she was told they couldn’t tell her that. When she asked who the complainant was, they said they couldn’t tell her that either. They added, that she shouldn’t call them a complainant, they were officially the victim. That’s what due process is like when you don’t have a First Amendment or a constitution. Victims of NCHI in the UK are decided without a trial or a defense. They asked, very politely, if Pearson would like to come voluntarily to the police station for a friendly interview. If she didn’t want to come voluntarily, they would put her on a wanted list and she would eventually be arrested. Nice choice.
It’s true that there has been a public ruckus over this particular case, but the police are unapologetic and have doubled down. Stung into action by unwanted publicity, they are now saying they have raised the matter from an NCHI to an actual crime investigation. Which means they think she can be arrested and put in prison for expressing her opinion on X. And of course they are right. In the UK that’s where we are right now. Pearson tried to point out the irony of two police officers turning up on her door to complain about her free speech on Remembrance Day of all days, when we recall the thousands who died to keep this a free country, but irony is lost on those who have no memory of what totalitarianism means.
The way things are looking I would say things can only get worse. The new Labour government has made it clear that it wants to beef up the reporting of NCHIs and make them an effective tool for clamping down on hurtful speech. You might think these are quite rare but not a bit of it; 13,200 of these were recorded in the last 12 months, and that’s around 36 a day, and they go on your record and sometimes mean you end up with no job. They also have new laws planned to control misinformation and disinformation, something not just confined to the UK. Similar laws are planned for Ireland, Australia, Canada, and the EU. Germany in particular is keen to remove all misinformation from the internet, I understand.
Whenever I see the word ‘misinformation’ these days I automatically translate it in my head to what it really means, which is ‘dissent.’ Western countries, former champions of free speech, the bedrock of liberty and individual choice, en masse it seems, now want to outlaw dissent. What is coordinating this attack on free expression, I don’t know, but it’s real and it’s upon us. We are slowly being intellectually suffocated into not expressing any opinion that others might find objectionable or that might contradict what the government said. If you had told me that would happen in my lifetime, I would have called you a liar.
I live in the UK, the home of the Bill of Rights and the Magna Carta, and the mother of parliamentary democracy. I was proud that we produced men like John Milton, John Stuart Mill, and Thomas Paine, that we understood the importance of the Areopagitica, the Rights of Man, and incorporated On Liberty into our social thinking. But those days seem long gone when police knock on your door to arrest you for an X post.
So I’m glad someone somewhere has a First Amendment even if we don’t. It may be your last defense in that republic of yours, if you can keep it.
Author
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