Brownstone Institute
SCOTUS Versus Free Speech
From the Brownstone Institute
In a 6 to 3 ruling on the Murthy v. Missouri case, the Supreme Court ruled against me and my fellow co-plaintiffs, in effect rendering the US First Amendment a dead letter in the social media age. At stake in the case was the status of a preliminary injunction issued by lower federal courts ordering the Biden Administration to stop coercing social media companies to censor and shadowban people and ideas that the government does not like.
On July 4th of last year, federal Judge Terry Doughty issued the preliminary injunction under consideration in our case, ruling that – given the evidentiary record already considered – we are likely to win on the merits of the case we brought before the court. He described the Biden Administration’s censorship campaign as “Orwellian,” violating the First Amendment root and branch.
The facts of the case are simple to understand, voluminously documented, and shocking, and they explain why the lower courts – including a unanimous three-judge panel of the Federal 5th Circuit Court of Appeals – issued the preliminary injunction to stop the Biden Administration from censoring in the first place. The injunction that reached the Supreme Court was narrowly constructed, specifically exempting national security-related communications between the government and social media companies, as well as communications regarding criminal activity on social media platforms such as child porn. The government was still permitted to tell social media companies about such speech.
The evidence revealed in the discovery of our case showed that employees of a dozen federal government agencies and the Biden White House directly pressured social media companies to censor viewpoints contrary to the official narratives they had pushed on the American people. Emails from the White House to Facebook show government officials threatening to use regulatory power to harm social media companies that did not comply with censorship demands.
Depositions of high–ranking career staff and political employees and unearthed emails between the government and social media companies like Facebook and Twitter/X revealed the government’s tactics to suppress speech. The Surgeon General’s office, the FBI, the CDC, the State Department, the Department of Homeland Security, and the White House were all closely involved.
Government agencies funded universities and NGOs to support enterprises with Orwellian names like “Virality Project” and “Center for Countering Digital Hate” to create a target list for the Administration’s censorship efforts. With government backing, these entities – linked sometimes to prominent universities like Stanford and the University of Washington – work with corporate teams in social media companies’ “trust and safety” divisions to censor offending speech.
The problem is that the government and these entities are bad at identifying misinformation, and they have a predilection for censoring people and ideas that are critical of government policy, whether those criticisms are true or false.
For instance, according to court documents found during discovery, the Biden administration insisted on censoring and deboosting content that accurately pointed out the rapidly waning efficacy of the Covid vaccine against infections, which they used to justify executive orders imposing vaccine mandates.
The Biden White House pressured Facebook to censor vaccine discussions, such as groups of vaccine-injured patients, that did not violate Facebook’s community standards. In response to harsh communications from Biden Covid advisor Andy Slavitt in 2021, Facebook limited the reach of these groups and censored them.
Ironically, even the White House itself was caught by its censorship demands. At the Biden administration’s behest, Facebook implemented algorithms to suppress posts their computers deemed “anti-vax.” In April 2021, when the CDC issued a “pause” on the distribution of the Johnson & Johnson Covid vaccine because it had identified an elevated level of strokes in women, the Facebook algorithms tagged the White House account as an anti-vax account. The Administration angrily ordered Facebook to stop censoring its speech.
The censorship campaign harmed the health of Americans by preventing accurate speech by me and others from reaching the attention of the American people. Children were kept out of schools for years, churches, mosques, and synagogues were closed, businesses shuttered, and unvaccinated people lost their jobs and faced social discrimination because of misinformation put forward by the government. Had the government permitted a fair debate on the science of Covid, they would have lost on the merits. The continuing crisis of high excess mortality and many other harms caused by blinkered Covid policies might have been avoided.
The Supreme Court’s reasoning in denying the preliminary injunction against the Biden Administration is that the plaintiffs in the case, which included the states of Missouri and Louisiana, me, and several other targets of government censorship, have not established “standing” to sue the government on First Amendment grounds. The ruling, in effect, requires a chain of emails from a particular government bureaucrat to a social media company demanding that a social media company censor speech.
Since this censorship activity takes place in the dark recesses of government bureaucracies, outside of the capacity of regular citizens to observe, it sets a standard that is impossible to meet absent extraordinary circumstances. In my and my colleague Martin Kulldorff’s case, at least, the Supreme Court ignored evidence we uncovered of a high government official, Francis Collins (the former head of the National Institute on Health), directing Tony Fauci to conduct a “devastating takedown” of our ideas on how to better manage the pandemic (in brief, implementing focused protection of vulnerable elderly people and not closing schools or imposing harmful lockdowns).
The ruling also ignores the nature of the government censorship activities, which focuses more on censoring ideas and narrative themes than on censoring particular people. The government, directly and through its university and NGO proxies, coerces social media companies to implement automated algorithms to suppress and shadowban ideas that the government does not like, whether true or not. By requiring such a standard for “standing” in First Amendment cases, the Supreme Court has effectively greenlit sophisticated government censorship operations that moot the First Amendment.
The case now goes back down to the lower courts for more discovery and probing of the government censorship operation. While I anticipate we will win there, the case may come back up to the Supreme Court in due course. More importantly, though, our loss in the Supreme Court points to the need for Congress and voters to act to protect American free speech rights now that it is clear that the Supreme Court will not do so.
Congress should pass a law prohibiting the executive branch and associated federal bureaucracies from censoring Americans via direct and indirect pressure on social media, and it should cut funding to university and NGO operations that the government uses to launder its social censorship schemes. Voters should demand of every candidate for office, including the presidency, where they stand on the modern censorship operation and vote accordingly.
In a sense, by exposing and publicizing the government’s censorship operation, which cannot survive in the sunlight, we have already won despite the disappointing result in the Supreme Court.
Republished from the author’s Substack
Author
From the Brownstone Institute
There is a lack of public comment and debate about Kamala Harris’s call for price controls on groceries and rents, the most stunning and frightening policy proposal made in my lifetime.
Immediately, of course, people will reply that she is not for price controls as such. It is only a limit on “gouging” (which she variously calls “gauging”) on grocery prices. As for rents, it’s only for larger-scale corporations with many units.
This is nonsense. If there really are national price-gouging police running around, every single seller of groceries, from small convenience stores to farmers’ markets to chain stores, will be vulnerable. No one wants the investigation so they will comply with de facto controls. No one knows for sure what gouging is.
Don Boudreaux is correct: “A government that threatens to punish merchants for selling at nominal prices higher than deemed appropriate by government clearly intends to control prices. It’s no surprise, therefore, that economists routinely analyze prohibitions against so-called ‘price gouging’ using exactly the same tools they use to analyze other forms of price controls.”
As for rental units, the only result will be fewer amenities, new charges, new fees for what used to be free, less service, and a dramatically reduced incentive to build new units. That will only lead to a pretext for more subsidies, more public housing, and more government provision generally. We have experience with that and it is not good.
The next step is nationalizing housing and rationing of groceries because there will be ever fewer available.
The more the betting odds favor Kamala, the stronger the incentive to raise prices as high as possible now in anticipation of price controls come next year. That will provide even more seeming evidence for the need for more controls and a genuine crackdown.
Price controls lead to shortages of anything they touch, especially in inflationary times. With the Federal Reserve seemingly on the verge of cutting rates for no good reason – rates are very low in real terms by any historical standard – we might see wave two of inflation later next year.
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Here are real interest rates historically considered as they stand. Do you see a case here for lowering them?
Next time, however, merchants will not be in a position to respond rationally. Instead, they will confront federal price investigators and prosecutors.
Kamala is wrong that this will be the “first-ever” ban on price gouging. We had that in World War II, along with rationing tickets on meat, animal fats, foil, sugar, flour, foil, coffee, and more. It was a time of extreme austerity, and people put up with it because they believed it was saving resources for the war effort. It was enforced the same as we saw with covid lockdowns: a huge network enlisting state and local institutions, media, and private zealots ready to rat out the rebels.
Franklin Roosevelt issued Executive Order 8875 on August 28, 1941. It claimed broad powers to manage all production and consumption in the US. On January 30, 1942, the Emergency Price Control Act granted the Office of Price Administration (OPA) the authority to set price limits and ration food and other commodities. Products were added as shortages intensified.
And yes, all of this was heavily enforced.
In case you are doing the math, that’s a $200,000 fine today for noncompliance. In other words, this was very serious and highly coercive.
Technology limited enforcement, however, and black markets sprung up everywhere. The so-called Meatleggers were the most famous and most demonized by government propaganda.
What happens when the government restricts meat consumption?
During World War II, food rationing led to significant changes in consumption habits in the United States.
Adults and children over 12 were limited to 2 lbs of meat per week, which was monitored through rationing… pic.twitter.com/goCU1FGMnD
— Meat Head (@markeatsmeat) February 20, 2024
In a nation with more agriculture in demographic proximity, people relied on local farmers and various methods of bartering goods and services.
Years went by and somehow people got through it but production for civilian purposes came to a near standstill. The GDP for the period looked like growth but the reality was a continuation and intensification of the Great Depression that began more than a decade earlier.
There are fewer people alive now that recall these days but I’ve known some. They adopted habits of extreme conservation. I once had a neighbor who simply could not bear to throw away tin-foil pie pans because she had lived through rationing. After she died, her kids discovered her vast collection and it shocked them. She was not crazy, just traumatized.
How would such a thing transpire today? Look at the program SNAP, the new name for food stamps. For those who qualify, the money goes into a special account managed by the federal government. The recipient is sent an EBT (Electronic Benefits Transfer) card, which is used like a credit card in stores. It costs taxpayers some $114 billion a year, and works out as a huge subsidy to Big Agriculture, which is why the program is administered by the Department of Agriculture.
Transitioning that program to the general population would not be difficult. It would be a simple matter of expansion of eligibility. As shortages grow, so too could the program until the entire population would be on it and it would be mandatory. It could also be converted into a mobile app instead of a piece of plastic as a fraud-prevention measure. With everyone carrying cell phones, this would be an easy step.
And where could people spend the money? Only at participating institutions. Would non-participation institutions be entitled to sell food, for example, at local farmers’ co-ops? Maybe at first but that’s before the media demonization campaigns come along to decry the rich who are eating more than their fair share and the sellers who are exploiting the national emergency.
You can sell how this all unfolds, and none of it is implausible. Only a few years ago, governments around the country canceled gatherings for religious holidays, limited the numbers of people who could gather in homes, and banned public weddings and funerals. If they can do that, they can do anything, including the rationing of all food.
The program that Harris has proposed is not like other matters that she has flip-flopped on. She is serious and repeats it. She spoke about it even during the debate with Trump but there was no followup or critique of the scheme offered. Nor does such a crazy plan require some legislation and a vote by Congress. It could come in the form of an executive order. Yes, it would be tested by the Supreme Court but, if recent history holds, the program would be long in effect before the Court weighed in. Nor is it clear how it would rule.
The Supreme Court in 1942 heard the case of Albert Yakus, a Boston-based meat seller who was criminally prosecuted for violating the wholesale beef price ceiling. In Yakus vs. United States, the Supreme Court ruled for the government and against the meat-selling criminal. That’s the existing precedent.
Nor does all this have to unfold immediately following the inauguration. It can happen as matters become ever worse following anti-gouging edicts and when inflation worsens. After all, a presidency that believes in central planning and forced economic austerity would last a full four years, and the coercion could grow month after month until we have comprehensively enforced deprivation by the end, and no one remembers what it was like to buy groceries at market prices with their own money.
I wish I could say that this is an outlandish and fear-mongering warning. It is not. It is a very realistic scenario based on repeated statements and promises plus the recent history of government management of the population. There is likely another wave of inflation coming. This time it will meet with a promise to use every coercive power of government to prevent increases in prices on groceries and rents.
What if voters actually understood this? What then?
Keep in mind the main legacy of the Covid years: governments learned the fullness of what they could do under the right circumstances. That’s the worst possible lesson but that is what has stuck. The implications for the future are grim.
Author
From the Brownstone Institute
Accountability for those responsible for the disasters of global governments’ handling of the Covid-19 pandemic is nearly impossible. For several reasons.
Namely, that accountability would have to come from those currently in government. Many, if not most, of whom supported the mask mandates, vaccine passports, and other absurdities inflicted on the global public. It would also require those responsible to actually acknowledge their mistakes, then take responsibility for them. How often do we see politicians or influential public figures admit that they were wrong?
Especially when the consequences were, and are, so severe.
It’s refreshing when we see the rare blissful examples of people in charge, those who will influence decisions, admitting that mistakes were made. That absurd policies with no basis in science were forced on the public. And apologize for their role in it.
Former Australian Premier Admits Vaccine Mandates Were Wrong
Dominic Perrottet is the former premier in New South Wales, Australia’s most populous state and home to Sydney. Australia, infamously, was one of the most prolific spreaders of Covid misinformation during the pandemic, while also being home to some of the world’s most restrictive policies and mandates.
While Daniel Andrews from the state of Victoria often receives most of the criticism, and rightfully so, for his extremism during the pandemic, New South Wales was nearly as restrictive.
The state under Gladys Berejiklian banned gatherings of 500 people or more in March, with the order enforced by state police with punishment including prison time, fines, or both. They closed their borders, even to other Australians, from July 8th, 2020 to November 2020, then again from January 2021 to the middle of February 2021. Even after the borders opened, visitors returning to the state from Victoria were forced to quarantine.
NSW made QR code check-ins mandatory in 2021 for “contact tracing,” a laughable, futile attempt to track a highly infectious respiratory virus. Retail stores, taxis, offices, and many other locations required individuals to scan a QR code upon entry.
In March 2020 they also made it illegal for more than two people to gather at a time, as well as banning people from leaving their own homes without a “reasonable excuse.” That’s not an exaggeration; the law quite literally states “that a person must not, without reasonable excuse, leave the person’s place of residence.”
Masks were mandated, including at outdoor events, well past 2021 and into 2022. In fact, as late as August 2021 NSW enforced curfews from 9 pm to 5 am and made masks mandatory anytime someone left their home. In late September, some restrictions were relaxed, allowing residents to create a 3-person “friend bubble” where leisure activities were permitted.
By October, the state reached an 80% full vaccination rate, allowing for the vaccinated to regain a small measure of freedom.
As with the rest of Australia, none of it worked. Lockdowns, mandates, an 80% vaccination rate, restrictions on the unvaccinated — none of it mattered.
Even more hilariously, New South Wales’ vaccine passport system came into effect directly before the state saw its highest rate of Covid spread during the pandemic.
And Perrottet, who presided over the period of vaccine mandates, passports, and unrestrained Covid spread from 2021 into 2023, has now admitted that he and the state were wrong.
“If the impact of vaccines on transmission was limited at best, as is now mostly accepted, the law should have left more room for respect of freedom,” Perrottet said in a recent speech, according to ABC Australia.
“Vaccines saved lives, but ultimately, mandates were wrong. People’s personal choices shouldn’t have cost them their jobs.”
“When I became premier, we removed [vaccine mandates] or the ones we actually could, but this should have happened faster,” he told the legislative assembly this week.
“If a pandemic comes again, we need to get a better balance encouraging people to take action whilst at the same time protecting people’s fundamental liberty.”
This isn’t nearly enough, but it’s still startling to see someone from one of the world’s most authoritarian Covid countries admit that their policies were ineffective and harmful, as well as being an infringement on fundamental liberties.
For perspective, has Joe Biden or Kamala Harris admitted that their illegal vaccine mandate was a mistake? That it was a mistake to bar unvaccinated visitors like Novak Djokovic from entering the country based on misinformation from Dr. Fauci?
Has the CDC acknowledged that their recommendations were arguably wrong, that their claims of vaccine efficacy against infection or transmission were a world-altering, historic failure? What about the media and their role in promoting that misinformation? Have they apologized?
Of course not. Politicians and their media partners don’t acknowledge mistakes; they don’t take responsibility for their actions. Especially when their actions have disastrous consequences. The only way these policies ever permanently end is if more people in positions of power such as Perrottet admit they were wrong.
Fauci, Biden, and Harris never have, and never will. This raises the disturbing thought that they’d easily reimpose those same restrictions again if given the opportunity.
It’s reassuring to see at least one prominent politician admit they were wrong. But there should be more.
Republished from the author’s Substack
Author
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