Brownstone Institute
Censorship on Trial at the Supreme Court
From the Brownstone Institute
BY
Billed as one of the most consequential lawsuits of the last century, Murthy v. Missouri (formerly Missouri v Biden) is a legal battle that stands at the intersection of free speech protections and social media companies.
The plaintiffs, which include psychiatrist Aaron Kheriaty, and epidemiologists Martin Kulldorff and Jay Bhattacharya, cosignatories of the Great Barrington Declaration, allege the US government coerced social media companies to censor disfavoured viewpoints that were constitutionally protected by the First Amendment.
The US government denies coercing social media companies, arguing it was “friendly encouragement” in an effort to protect Americans from “misinformation” in a public health emergency.
The Constitution is clear – it forbids the US government from abridging free speech. But a private company such as a social media platform bears no such burden and is not ordinarily constrained by the First Amendment.
This case asks whether certain government officials impermissibly coerced social media companies to violate the First Amendment rights of social media users. The case now sits before the Supreme Court of the United States (SCOTUS).
The Case So Far
The case has seen several twists and turns since it was originally filed in 2022.
Discovery allowed plaintiffs to document nearly 20,000 pages showing platforms like Twitter (now X), Facebook, YouTube, and Google stifled free speech by removing or downgrading stories about Hunter Biden’s laptop, the 2020 presidential election, and various Covid-19 policies.
The plaintiffs described it as an “unprecedented, sprawling federal censorship enterprise.”
On July 4, 2023, US District Court Terry Doughty granted a motion to restrict federal government officials from communicating with social media companies over content it believed to be misinformation.
Specifically, they were prohibited from meeting or contacting by phone, email, or text message or “engaging in any communication of any kind with social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech.”
Doughty indicated there was “substantial evidence” that the US government violated the First Amendment by engaging in a widespread censorship campaign and that “if the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history.”
The Biden Administration appealed the decision in the Fifth Circuit Court of Appeals, arguing that the officials exercised a form of permissible government speech because they only pointed out content that violated the platforms’ policies to reduce the harms of online misinformation.
On September 8, 2023, the Fifth Circuit largely affirmed Judge Doughty’s order stating that US government officials were engaging “in a broad pressure campaign designed to coerce social-media companies into suppressing speakers, viewpoints, and content disfavored by the government.”
It was determined that the harms of such censorship radiated far beyond the plaintiffs in the case, essentially impacting every social-media user.
Circuit Judge Don Willett said the White House applied pressure to social media companies, using “fairly unsubtle strong-arming” and making “not-so-veiled threats” in the form of “mafiosi-style” tactics along the lines of “This is a really nice social media platform you’ve got there, would be a shame if something happened to it.”
The underlying threat, implied by Willett, is that the US government might increase its regulation over the platforms and enforce legal reforms to Section 230 which currently protects platforms from civil liability in US courts for content that appears on their platforms. Section 230 states:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
On October 3, 2023, a 74-page ruling ordered US Surgeon General Vivek Murthy, White House Press Secretary Karine Jean-Pierre and dozens of officials from The White House, FBI, and Centers for Disease Control and Prevention (CDC) to:
…take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech.
However, President Biden is no longer a named defendant because the Fifth Circuit did not uphold the order against him, hence the change in the name to Murthy v Missouri.
On October 20, 2023, the Supreme Court of the United States (SCOTUS) granted Murthy’s application for stay (pause) of the injunction, until the court could review the case and issue a judgement.
In the Supreme Court
On March 18, 2024, Murthy v Missouri arrived at SCOTUS where Justices heard oral arguments by Brian Fletcher, Deputy Solicitor General for the US government and Benjamin Aguiñaga, Louisiana’s solicitor general for the plaintiffs.
Friendly, not Coercive?
Fletcher continued to argue that the government’s communications did not rise to the level of threats or coercion, but was simply encouraging social media platforms to exercise their misinformation policies (which would not be unconstitutional).
“If it stays on the persuasion side of the line — and all we’re talking about is government speech — then there’s no state action and there’s also no First Amendment problem,” said Fletcher. “I think it’s clear this is exhortation, not threat.”
Justice Samuel Alito however, seemed more convinced that the tirade of emails and crude language used by the White House officials to social media companies, mounted to coercion through their “constant pestering” of the platforms.
“It is treating Facebook and these other platforms like they’re subordinates,” said Alito. “Would you do that to the New York Times or the Wall Street Journal or the Associated Press or any other big newspaper or wire service?”
Justices Brett Kavanaugh and Elena Kagan referenced their own experience as government agents who had tried to persuade journalists to write stories differently, seeming dismissive about the argument that they were violating the Constitution in those circumstances.
“Like Justice Kavanaugh, I have had some experience encouraging press to suppress their own speech,” admitted Kagan. “This happens literally thousands of times a day in the federal government.”
Traceability
Some Justices questioned whether the plaintiffs could show they were directly “injured” by the censorship and if it was directly traceable to the government. In fact, Aguiñaga was asked to provide specific examples of where the plaintiffs were censored directly because of government coercion.
Justice Kagan said that platforms already moderate content, “irrespective of what the government wants, so how do you decide that it’s government action as opposed to platform action?”
Aguiñaga named Jill Hines, co-director of Health Freedom Louisiana, who was specifically mentioned in the government’s communications to be targeted for censorship.
Kheriaty, another plaintiff on the lawsuit, later commented that proving they were censored directly as a result of government action, rather than decisions by the platforms or their algorithms, would not be simple.
“Even with extensive discovery – which is hard to get in any event – finding the entire trail from a government directive to the take down of a specific YouTube video or Tweet would be virtually impossible,” wrote Kheriaty in a recent post.
Hamstringing the Government
Arguably, the most controversial moment was when the newest Justice of the court, Ketanji Brown Jackson questioned Aguiñaga over the impact of broadly restricting the government’s communications with social media platforms.
“My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods,” said Jackson. But critics immediately pointed out that the only purpose of the First Amendment is to hamstring the government. It states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
In the courtroom, Jackson posed a hypothetical scenario of a “challenge” circulating on social media where teenagers were encouraged to “jump out of windows at increasing elevations.”
“Some might say that the government actually has a duty to take steps to protect the citizens of this country,” said Jackson wondering if, in the context of a once-in-a-century pandemic, it might change the principle of the First Amendment.
“You seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information,” added Jackson.
Aguiñaga responded by saying that the US government had many options to amplify its messages without coercing private companies to censor content, including using its “bully pulpit” to make public statements.
Aguiñaga also said that people on social media were often unaware of the extent of the governments meddling to remove content. “The bulk of it is behind closed doors. That is what is so pernicious about it,” he said.
Whether SCOTUS votes to order a halt to the government’s widespread censorship enterprise remains to be seen. A ruling is expected in June 2024.
Republished from the author’s Substack
Brownstone Institute
A Potpourri of the World’s Unexposed Scandals
From the Brownstone Institute
By
How many genuine, shocking – and unexposed – scandals actually occurred in the last four years? To partially answer this question, I composed another of my List Columns.
The Most Epic of Scandals Might Be…
The world’s most epic scandal might be the massive number of citizens who’ve died prematurely in the last four years. This scandal could also be expressed as the vast number of people whose deaths were falsely attributed to Covid.
My main areas of focus – “early spread” – informed my thinking when I reached this stunning conclusion: Almost every former living person said to have died “from Covid” probably did not die from Covid.
The scandal is that (unreported) “democide” occurred, meaning that government policies and deadly healthcare “guidance” more plausibly explain the millions of excess deaths that have occurred since late March 2020.
My research into early spread suggests that the real Infection Fatality Rate (IFR) of Covid should have already been known by the lockdowns of mid-March 2020.
If, as I believe, many millions of world citizens had already contracted this virus and had not died, the Covid IFR would be the same, or perhaps even lower, than the IFR for the common flu – said to be 1 death per 1,000 infections (0.1 percent).
Expressed differently, almost 100 percent of people who contracted this virus did not die from it – a fact which could and should have been known early in the “pandemic.” The fact this information was concealed from the public qualifies as a massive scandal.
Evidence That Would ‘Prove’ This Scandal
Furthermore, one does not need early spread “conjecture” to reach the conclusion that only a minute number of people who were infected by this virus later died from Covid.
After April 2020, a researcher could pick any large group or organization and simply ascertain how many people in these groups later died “from Covid.”
For example, more than 10,000 employees work for the CDC. About 10 months ago, I sent an email to the CDC and asked their media affairs department how many of the CDC’s own employees have died from Covid in the past three-plus years.
This question – which would be easy to answer – was never answered. This example of non-transparency is, to me, a massive “tell” and should be “scandalous.”
To be more precise, if the CDC could document that, say, 10 of their employees had died from Covid, this would equate to a disease with a mortality risk identical to the flu.
My strong suspicion is that fewer than 10 CDC employees have died from Covid in the last four years, which would mean the CDC knows from its own large sample group that Covid is/was not more deadly than influenza.
I’ve performed the same extrapolations with other groups made up of citizens whose Covid deaths would have made headlines.
For example, hundreds of thousands if not millions of high school, college, and pro athletes must have contracted Covid by today’s date. However, it is a challenge to find one definitive case of a college or pro athlete who died from Covid.
For young athletes – roughly ages 14 to 40 – the Covid IFR is either 0.0000 percent or very close to this microscopic fraction.
One question that should be obvious given the “athlete” example is why would any athlete want or need an experimental new mRNA “vaccine” when there’s a zero-percent chance this disease would ever kill this person?
The scandal is that sports authorities – uncritically accepting “guidance” from public health officials – either mandated or strongly encouraged (via coercion) that every athlete in the world receive Covid shots and then, later, booster shots.
Of course, the fact these shots would be far more likely to produce death or serious adverse events than a bout with Covid should be a massive scandal.
More Scandals
Needless to say, all the major pediatrician groups issued the same guidance for children.
In Pike County, Alabama, I can report that in four years no child/student between the ages of 5 and 18 has died from Covid.
I also recognize that the authorized “fact” is that millions of Americans have now “died from Covid.” However, I believe this figure is a scandalous lie, one supported by PCR test results that would be questioned in a world where investigating certain scandals was not taboo.
Yet another scandal is that officials and the press de-emphasized the fact the vast majority of alleged victims were over the age of 79, had multiple comorbid conditions, were often nursing home residents, and, among the non-elderly, came from the poorest sections of society.
These revelations – which would not advance the desired narrative that everyone should be very afraid – are similar to many great scandals that have been exposed from time to time in history.
Namely, officials in positions of power and trust clearly conspired to cover up or conceal information that would have exposed their own malfeasance, professional incompetence, and/or graft.
This Might Be the No. 1 Scandal of Our Times
As I’ve written ad nauseam, perhaps the most stunning scandal of our times is that all-important “truth-seeking” organizations have become completely captured.
At the top of this list are members of the so-called Fourth Estate or “watchdog” press (at least in the corporate or “mainstream” media).
In previous articles, I’ve estimated that at least 40,000 Americans work as full-time journalists or editors for mainstream “news organizations.” Hundreds of MSM news-gathering organizations “serve” their readers and viewers.
In this very large group, I can’t think of one journalist, editor, publisher, or news organization who endeavored to expose any of the dubious claims of the public health establishment.
When 100 percent of professionals charged with exposing scandals are themselves working to conceal shocking revelations…this too should qualify as a massive scandal.
To the above “captured classes” one could add college professors and administrators, 99 percent of plaintiffs’ trial lawyers, 100 percent of CEOs of major corporations, almost all elected politicians, and, with the exception of perhaps Sweden, every one of the public health agencies in the world, plus all major medical groups and prestigious science journals.
Or This Might Be Our Greatest Scandal
Yet another scandal – perhaps the most sinister of them all – would be the coordinated conspiracy to silence, muffle, intimidate, bully, cancel, demonetize, and stigmatize the classes of brave and intelligent dissidents who have attempted to reveal a litany of shocking truths.
The Censorship Industrial Complex (CIC) is not a figment of a conspiracy theorist’s imagination.
The CIC is as real as Media Matters, News Guard, The Trusted News Initiative, the Stanford Virality Project, and the 15,000-plus “content moderators” who probably still work for Facebook.
Government officials in myriad agencies of “President” Joe Biden’s administration constantly pressured social media companies to censor content that didn’t fit the authorized narrative (although these bullying projects didn’t require much arm-twisting).
Here, the scandal is that the country’s “adults in the room” were identified as grave threats to the agenda of the Powers that Be and were targeted for extreme censorship and punishment.
When people and organizations principled enough to try to expose scandals are targeted by the State and the State’s crony partners, this guarantees future scandals are unlikely to be exposed…which means the same unexposed leaders are going to continue to inflict even greater harm on the world population.
This Scandal Is Hard to Quantify
Other scandals are more difficult to quantify. For example, it’s impossible to know how many citizens now “self-censor” because they know the topics they should not discuss outside of conversations with close friends.
This point perhaps illustrates the state of the world’s “New Normal” – a now-accepted term that is scandalous if one simply thinks about the predicates of this modifier.
It should be a scandal that the vast majority of world citizens now eagerly submit to or comply with the dictates and speech parameters imposed on them by the world’s leadership classes.
The “New Normal” connotes that one should accept increasing assaults on previously sacrosanct civil liberties.
What is considered “normal” – and should now be accepted without protest – was, somehow, changed.
As I routinely write, what the world has lived through the past four-plus years is, in fact, a New Abnormal.
This Orwellian change of definition would qualify as a shocking scandal except for the fact most people now self-censor to remain in the perceived safety of their social and workplace herds.
The bottom line – a sad one – might be that none of the above scandals would have been possible if more members of the public had been capable of critical thinking and exhibited a modicum of civic courage.
As it turns out, the exposure of scandals would require large numbers of citizens to look into the mirror (or their souls) and perform self-analysis, an exercise in introspection that would not be pain-free.
It’s also a scandal our leaders knew they could manipulate the masses so easily.
Considering all of these points, it seems to me that the captured leadership classes must have known that the vast majority of the population would trust the veracity of their claims and policy prescriptions.
That is, they knew there would be no great pushback from “the masses.”
If the above observation isn’t a scandal, it’s depressing to admit or acknowledge this is what happened.
To End on a Hopeful Note
What gives millions of citizens hope is that, belatedly, more citizens might be growing weary of living in a world where every scandal cannot be exposed.
Donald Trump winning a presidential election by margins “too big to steal” is a sign of national hope.
Mr. Trump nominating RFK, Jr. to supervise the CDC, NIH, and FDA is definitely a sign of hope, an appointment that must outrage and terrify the world’s previous leadership classes.
For far too long, America’s greatest scandal has been that no important scandals can be exposed. Today, however, it seems possible this state of affairs might not remain our New Normal forever.
Republished from the author’s Substack
Brownstone Institute
Freedumb, You Say?
From the Brownstone Institute
By
“Authorities have attacked, detained, prosecuted, and in some cases killed critics, broken up peaceful protests, closed media outlets, and enacted vague laws criminalizing speech that they claim threatens public health”
Didn’t give much thought to freedom until four years ago, at age 63. Freedom was just there, like the water surrounding a goldfish. And then the Covid-19 pandemic blew in, the world locked down, and admonitions to “stay the ‘$^#&’ home” blazed through social media. No freedom was too important to discard in the name of public safety: jobs, family businesses, artistic endeavours, public meetings, social connections that kept despair at bay, all took a backseat to the grim business of saving grandma (who ended up getting Covid anyway). No discussion of moral or practical trade-offs, no pushback from the press, nothing. It felt wrong to me on a cellular level.
Apparently I was the only one in my middle-class liberal circle to harbour misgivings about this astonishing new world. If I tried, ever so timidly, to articulate my concerns on Facebook or Twitter, the online warriors shot back with a string of epithets. “Go lick a pole and catch the virus,” said one. “Crawl back into your cave, troglodyte,” said another. And my all-time favourite: “You’re nothing but a mouth-breathing Trumptard.”
From the get-go, I perceived Covid as more of a philosophical problem than a scientific one. As I wrote on more than one occasion, science can inform our decisions, but not dictate them. What ultimately powers our choices are the values we hold. I saw Covid as a morality play, with freedom and safety cast as the duelling protagonists, and it looked like safety was skipping to an easy victory.
It was a heady time for the health bureaucrats, whose increasingly arcane rules betrayed a naked impulse to control: the Canadian high-school students required to use masks on both their faces and their wind instruments during band practice, the schoolchildren forced (for hygiene reasons) to study on their knees for hours in an Alaska classroom, the “glory-hole” sex advised by the British Columbia Centre for Disease Control. The lack of public pushback against these absurdities heightened my awareness of the fragility of our freedoms.
One of the earliest memes to surface during the pandemic was “muh freedumb.” The locution became a shorthand for a stock character – a tattooed man wearing camo gear and a baseball cap, spewing viral particles while yelling about his rights. A selfish idiot. The memes kept coming: “Warning, cliff ahead: keep driving, freedom fighter.” “Personal freedom is the preoccupation of adult children.” Freedom, for centuries an aspiration of democratic societies, turned into a laughing stock.
Eventually, pro-freedom voices began trickling into the public arena. I wasn’t alone, after all. There were others who understood, in the words of Telegraph writer Janet Daley, that the institutional response to Covid-19 had steamrolled over “the dimension of human experience which gives meaning and value to private life.” Lionel Shriver decried how “across the Western world, freedoms that citizens took for granted seven months ago have been revoked at a stroke.” And Laura Dodsworth brought tears to my eyes when she wrote, in her 2021 book A State of Fear, that she feared authoritarianism more than death.
Once the vaccines rolled out, the war on freedom of conscience went nuclear. If you breathed a word against the products, or even the mandates, you were “literally killing people.” The hostility towards the “unvaxxed” culminated in a Toronto Star front page showcasing public vitriol, splashed with such sentiments as: “I honestly don’t care if they die from Covid. Not even a little bit.”
This, too, felt viscerally wrong. I knew several people who had refused the vaccine, and they all had well-articulated reasons for their stance. If they didn’t fully trust the “safe and effective” bromide recycled by all government and pharmaceutical industry spokespeople, I could hardly blame them. (And I say this as someone who writes for Big Pharma and got five Covid shots.)
One of the most deplorable casualties of Covid culture was freedom of expression, a core principle in the United Nations’ Universal Declaration of Human Rights. Experts speaking publicly about the harms of lockdown faced systematic ostracism from mainstream media, especially left-wing news outlets. By early 2021, Human Rights Watch estimated that at least 83 governments worldwide had used the Covid-19 pandemic to violate the lawful exercise of free speech and peaceful assembly.
“Authorities have attacked, detained, prosecuted, and in some cases killed critics, broken up peaceful protests, closed media outlets, and enacted vague laws criminalizing speech that they claim threatens public health,” the group wrote in a media release. “The victims include journalists, activists, healthcare workers, political opposition groups, and others who have criticized government responses to the coronavirus.”
But what about misinformation? Doesn’t it kill people? Newsflash: misinformation has always existed, even before TikTok. It’s up to each of us to sift the credible folks from the cranks. The best defence against misinformation is better information, and it’s the policy wonks’ job to provide it. Modern science itself depends on this tug-of-war of ideas, which filters out weaker hypotheses and moves stronger ones ahead for further testing.
Besides, misinformation comes not just from cranks, but from “official sources” – especially those tasked with persuading the public, rather than informing it. Remember when Rochelle Walensky, former director of the Centers for Disease Control and Prevention in the US, asserted that “vaccinated people do not carry the virus?” Or when Anthony Fauci maintained that getting vaccinated makes you a “dead end” in the chain of transmission? I rest my case.
The marketplace of ideas is like a souk, with a lot of hollering and arguing and the odd snatched purse – and that’s exactly how it should be. It’s an ingenious and irreplaceable process for getting to the truth. There are few ideas too sacrosanct to question or too ridiculous to consider. That’s why, unlike just about everyone in my left-leaning circle, I take no issue with Elon Musk’s shakedown of the old Twitter, now the Wild West of X.
Under Musk’s algorithms, my feed has become a true philosophical souk, with wildly disparate views smashing into each other, leaving me to sift through the rubble in search of a gold nugget or two. Love him or hate him, Musk offers a much-needed counterweight to the ideological lockstep in much of the mainstream media. And when it comes to free speech, Musk has put his money where his mouth is: when media personality Keith Olbermann recently hopped on X, where he boasts a million followers, to call for Musk’s arrest and detainment, Musk made no move to censor him. Works for me.
While the “old normal” has thankfully returned to our daily lives, save the odd mask in a shopping mall or subway car, the stench of censorship that blew in with the pandemic has yet to dissipate. An obsession with disinformation permeates the zeitgeist, spurring lawmakers in several Western countries to censor the flow of thoughts and ideas that gives a free society its pulse.
We cannot excise personal freedom from a democratic society, even in the interests of the “public good,” without poisoning the roots of democracy itself. Article 3 of UNESCO’s 2005 Universal Declaration of Bioethics and Human Rights states this plainly: “The interests and welfare of the individual should have priority over the sole interest of science or society.” In our post-pandemic reality, the statement seems almost quaint. Nonetheless, it expresses an enduring truth: that a democracy must never discard the idea of freedom – even in a pandemic.
Freedom desperately needs a comeback from its current incarnation as an expendable frill. In my own small way I’m trying to make this happen: never much of an activist before Covid, I’m now part of a small group preparing to launch a Free Speech Union in Canada, modelled after the highly successful one in the UK. The organisation will offer legal advice to individuals facing censorship, cancellation, or job loss because of their words. I look forward to supporting people caught in this anti-freedom web, including those whose words I heartily disagree with.
My newfound respect for free speech is also what propels me to keep talking about Covid. The response to the pandemic exceeded the bounds of public health, and we need to expose the forces that drove it. Here’s Daley again: “The world went crazy. There is no other way to account for what was an almost nihilistic dismantling not just of particular liberties and rights, but of the very idea of liberty.” We can’t let it happen again.
Republished from Perspective Media
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