Brownstone Institute
Censorship on Trial at the Supreme Court
From the Brownstone Institute
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
Author
From the Brownstone Institute
Information disorder is a term coined in 2017 in a report titled “Information Disorder Toward an interdisciplinary framework for research and policymaking” that was drafted for the Council of Europe. (Derakhshan & Hossein, 2017). Information disorder refers to the sharing or developing of false information, categorized as misinformation, disinformation, and malinformation. Of interest, the original 2016 election of President Trump triggered the commission of this report.
From the report:
This concept has been further developed by think tanks, academics, NGOs, governments, and others now invested in the vast fact-checking and industrial-censorship complex. We have all become well-versed in these concepts over the past few years.
A 2020 peer-reviewed study took this concept further and made information disorder into a mental health condition.
Abstract:
Many of us may be unknowingly suffering from information disorder syndrome. It is more prevalent due to the digitized world where the information flows to every individual’s phone, tablet and computer in no time. Information disorder syndrome is the sharing or developing of false information with or without the intent of harming and they are categorized as misinformation, disinformation and malinformation.
The severity of the syndrome is categorized into three grades. Grade 1 is a milder form in which the individual shares false information without the intent of harming others. Grade 2 is a moderate form in which the individual develops and shares false information with the intent of making money and political gain, but not with the intent of harming people. Grade 3 is a severe form in which the individual develops and shares false information with the intent of harming others.
The management of this disorder requires the management of false information, which is rumor surveillance, targeted messaging and community engagement.
Repeated sufferers at the Grade 1 level, all sufferers from Grade 2 and 3 levels need psycho-social counseling and sometimes require strong regulations and enforcement to control such information disorder.
The most critical intervention is to be mindful of the fact that not all posts in social media and news are real, and need to be interpreted carefully.
From this paper, the idea of “information disorder syndrome” quickly jumped into the lexicon of both the censorship-industrial complex and the mental health industry. It is important to note that the terms syndrome, disease, and mental disorders are often used interchangeably. In this case, it has been determined by organizations such as First Draft and the Aspen Institute that the way to cure this syndrome is to stop the flow of misinformation, disinformation, and malinformation online.
Is it just a matter of time before the American Psychiatric Association puts this new “syndrome” into the next edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM)?
Is this a possibility?
The American Psychological Association is at least considering how to fit “information disorder” or even “information disorder syndrome” into their modalities. The APA has developed a consensus statement report on fighting health misinformation, which we taxpayers paid for. The CDC paid the APA $2 million for this project.
Next up will be the National Institute of Mental Health (NIMH) developing a funding program to research how to cure or manage this new mental health disorder; considered a new syndrome because of the pernicious tendrils of the internet.
As information disorder syndrome is not a formally recognized mental health condition yet, so far, specific NIMH funding has been absent. However, suppose information disorder syndrome continues to evolve by the medical establishment into a mental health condition. In that case, it is conceivable that NIMH could support studies in the future, particularly for the “sufferers from grade 2 and 3 levels who need psycho-social counseling and sometimes require strong regulations and enforcement to control such information disorder.”
This is yet another example of how the government can and has previously exerted control over individuals. What happens when the APA stigmatizes people who have contrarian views or lifestyles or posts mis, dis or mal-information repeatedly online? The APA has a long history of discriminating and labeling categories of people who differ from the norm, such as when being gay became a mental health disorder in the 1950s.
This lasted for decades, and the APA endorsed many medical treatments such as surgical interventions, including castrations, vasectomies, hysterectomies, and lobotomies, drug therapies (including aversion therapy, which included inducing nausea, vomiting, or paralysis when exposed to same-sex erotic images or thoughts) and even chemical castration, sexual depressants and stimulants, LSD, estrogen and testosterone and also electroconvulsive therapy—which involved administering electric shocks to patients.
Taking this back to the topic at hand, making information disorder a syndrome affecting the individual allows the state through the medical and insurance industries to step in and force the individual to conform to societal norms. As shown in the example above, this is within the realm of possibilities.
Is this a future that is going to happen? Who knows, but it could. And we have to be prepared for this future manifesting in various planning stages. This is why terms such as “information disorder” and “information disorder syndrome” are being propagated throughout new media and must be rejected at all levels.
”Free speech is the most pragmatic tool we have for ascertaining truth. Only by examining all sides of an issue can the truth be chiseled out like a statue out of marble. But the underlying reality is that there can be many truths; we each have our own experiences, values, mores, and life. That is the beauty and wonder of being an individual. There can be no free speech without free and open access to ideas, knowledge, truths, and untruths. Without free speech, we are little more than slaves.
We must defend all speech—whether untrue, hateful, or intolerable, as that is the only way to protect our rights and abilities to understand the world. As soon as free speech is restricted, that restriction will be used to sway public opinion. As soon as one person can be defined as a heretic for uttering words, then soon everyone opposing the “officially approved” side of an issue will be labeled as a heretic. The next logical step will be for the state to define acts of heresy as criminal offenses. As soon as governments and those in power can sway public opinion by restricting free speech, democracy and even our republic of United States will be lost.”
Republished from the author’s Substack
Author
From the Brownstone Institute
Part of the sweep of government in the first days of the Trump administration has been a freeze on communications. The explosion has hit the whole of public health bureaucracies, which Trump personally blames in part for the meltdown of his previous term of president in his last year. The pause in operations is designed to figure out exactly what is going on.
It is certainly not the case that Donald Trump wants you to die, contrary to Paul Krugman’s claim. No longer writing at the New York Times, he reserved his rather extreme view for his Substack account.
Recall that Krugman was 100 percent for lockdowns and all the rest including the fake science behind vaccine mandates. While most of the world was in cages, he was proclaiming the dawn of the great reset. With that reversed, he has reverted to form.
What actually seems to be dying the death is the public health bureaucracy.
As the Wall Street Journal explained in their story headlined “Swaths of U.S. Government Grind to a Halt After Trump Shock Therapy:” “While glitches aren’t uncommon during the early days of presidential transitions, some longtime federal employees said the chaos seemed more extreme this week due in part to wide-spanning differences between the agendas of the previous administration and the new one. The stalled initiatives extended far beyond Trump’s cancellation of federal DEI programs.”
I seriously doubt that public opinion registers much concern.
Let’s take a look at the actions of these agencies in the pre-inauguration days before the freeze.
The Department of Health and Human Services announced on January 17, three days before the inauguration, a jaw-dropping $590 million grant to Moderna, a driving force behind global vaccination with mRNA shots during Covid. The announcement of this grant changed the fortunes of the company’s stock price, which had been in a two-year slide.
The timing alone cries out for explanation. Was this to dump largess on the deep-state partner before Trump could stop it? Or was it tacitly approved by the incoming administration in order to keep Trump’s fingerprints from it? We’ll know based on whether this goes ahead. It will certainly be a test of the agency’s future under the leadership of Robert F. Kennedy, Jr., provided he is confirmed by the Senate.
For now, it has all the earmarks of an old regime grabbing whatever it can on the way out.
Over at the CDC, which exists as part of a suite of agencies under the control of HHS, we have one last communication dating also from January 17. It was to announce the “first-ever National One Health Framework to Address Zoonotic Diseases and Advance Public Health Preparedness in the United States.”
David Bell at Brownstone has been writing about this for longer than a year. As he describes it:
“Those pushing it envision a world in which any lifeform is considered intrinsically equal worth to others. If you must choose between your daughter and a rat, the choice should weigh the probability of survival of each, or may do the least harm to other lifeforms after being saved. Within this ‘equitable’ worldview, humans become a pollutant. Ever-growing human populations have driven other species to extinction through environmental change, from the megafauna of ancient Australasia to the plummeting insect populations of modern Europe. Humans become a plague upon the earth, and their restriction, impoverishment, and death may therefore be justified for a greater good.”
The connection here to Fauci et al, and their view concerning spillover diseases from animals to humans – a major reason why they were so insistent on the zoonotic origins of Covid – is rather obvious.
In the middle of the worst part of US lockdowns, Fauci and his co-author David Morens wrote an article for Cell in which they explain that the real problem with life on earth began 12,000 years ago when “human hunter-gatherers settled into villages to domesticate animals and cultivate crops. These beginnings of domestication were the earliest steps in man’s systematic, widespread manipulation of nature.”
It’s always with the same theme. If there were fewer of us, had we never had much contact with each other, if we never dared to cultivate crops, domestic animals, store water, and move around, we could have been spared all diseases.
The real problem is what we call civilization itself, which is why the article ends with an assault on “overcrowding in dwellings and places of human congregation (sports venues, bars, restaurants, beaches, airports), as well as human geographic movement,” all of which “catalyzes disease spread.”
The only solution, in this view, is “rebuilding the infrastructures of human existence, from cities to homes to workplaces, to water and sewer systems, to recreational and gatherings venues.”
One Health, as newly embraced by the CDC, amounts to a radical transformation of the basis of social order itself, under the guidance of god-like scientists who alone know how to structure the best life for all living things, even if that comes at the expense of human flourishing.
David Bell describes this creepy strain of belief as a “cult” but it might also be described as an ideology very different from the dominant ones in the 20th century. Socialism might have proven unworkable but at least it aspired to the improvement of human life. Capitalist ideology was the same. This is something different, with more in common with the far-flung imaginings of Rousseau or the Prophet Mani who shared in common the belief that all attempts to create what we call civilization are inherently corrupting of our perfect state of nature.
This was part of the underlying philosophical infrastructure of lockdowns and vaccine mandates, not merely a public health establishment doing crazy things that happened to be captured by high-powered industrial interests. There was a dreamy and ultimately ghastly utopianism backing all of these actions, stemming from hot-house salons of government-funded science cabals where they not only refuse to speak to normal people; they have nothing but disdain for the aspirations of the common folk and their attachments to property, family, and tradition (which includes, for example, home remedies on dealing with infectious disease).
How it came to be that our main engines of public health came to be captured in whole by such a crazed ideology would require a deep and expansive investigation. Certainly, it happened gradually and largely out of the public eye, so much so that even our best investigative writers are still trying to wrap their brains around it all. Whatever this ideology is, it captured nearly the entire planet Earth in the years 2020-2023 or thereabouts and resulted in a health crisis without precedent in modern times.
Part of the result of that grand experiment was the unseating of a variety of populist leaders in the US, UK, and Brazil. This seems to have set in motion what Walter Kirn has called “a coup against a coup,” as the astonishing avalanche of executive orders reveals. The flurry of news – including a full reaffirmation of free speech, a purge of all DEI edicts, a deletion of previous dictates on Central Bank Digital Currencies, and a full hiring freeze in the federal government – has been so massive that the pundit class has been left gasping to stay on top of it all.
As for NIH, Jay Bhattacharya has been tagged to head the agency. As he awaits Senate confirmation, the acting head is Dr. Matthew Memoli, an award-winning vaccinologist who has worked at NIH for 16 years. In defiance of the regime, he argued in 2021 that “with existing vaccines, blanket vaccination of people at low risk of severe illness could hamper the development of more-robust immunity gained across a population from infection.”
Our own Fellow Bret Swanson took note of this one dissident within the Fauci ranks and celebrated his resolve to speak truth to power, in a complete takedown of evil four years ago. The doctor came under fire for daring to disagree.
Now Dr. Memoli heads the agency he defied. He remains in that position until the man once called a “fringe epidemiologist” by the previous head of NIH takes full control. This is as close to revolution and counterrevolution as you will find in a democratic society.
Something big and potentially wonderful is happening in the realm of public health, which was deployed for egregious purposes only a few years ago. It is a turning point of some sort, and one can hope that the results are consistent with the health, well-being, and freedom of everyone.
For now, there doesn’t seem to be too much in the way of public panic about the big freeze at HHS-related agencies, much less the removal of Anthony Fauci’s expensive security detail.
Author
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