COVID-19
Court Ruling on Murthy Misses Point Entirely
From the Brownstone Institute
The United States Supreme Court ruled, in a 6 to 3 decision, that the plaintiffs in the most important free speech case in decades did not have standing to ask for preliminary injunctive relief.
That is wrong.
In her majority opinion, Justice Amy Coney Barrett bent over sideways to avoid judging the case on its merits – the allegation is that various and sundry government agencies coerced private social media companies to remove posts and tweets and such they did not like – and focused instead on whether or not the plaintiffs had the right, or standing, to ask for and be granted such relief.
The plaintiffs, essentially, had their content throttled or removed from social media platforms at the behest of the government because they did not follow the government line on the pandemic response and election security, daring to question things like social distancing – even Dr. Anthony Fauci has admitted they just made that up – and how secure – or unsecure – a “vote-by-mail” election could possibly be.
The request before the court was to allow an injunction against a number of government agencies that barred improper communication with the social media platforms. The question of whether those agencies did in fact do that – essentially violating the First Amendment rights of the plaintiffs – does not appear at issue. As Justice Samuel Alito (joined in opposition to the ruling by Justices Clarence Thomas and Neil Gorsuch) said in his blistering dissent, that unquestionably happened.
The case, known as Murthy V. Missouri, involves two states and a number of private plaintiffs, all claiming that they were improperly censored – and thus damaged – by federal agencies and/or the dubious “cut out” front groups they created. Alito focused on one plaintiff – Jill Hines, who ran a Louisiana health-related (read pandemic response criticism) that was consistently degraded by Facebook after calls and pronouncements from the White House – in his dissent, noting that she unquestionably had standing (even Barrett admitted that plaintiff was closest, as it were), especially in light of the fact the government itself admitted the plaintiff had been damaged.
In today’s ruling, “The Court, however, shirks that duty and thus permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think,” wrote Alito. “That is regrettable. What the officials did in this case was more subtle than the ham-handed censorship found to be unconstitutional (in a separate case), but it was no less coercive. And because of the perpetrators’ high positions, it was even more dangerous. It was blatantly unconstitutional, and the country may come to regret the Court’s failure to say so. Officials who read today’s decision…will get the message. If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.”
Barrett wrote that, while she was not opining on the merits of the case, the plaintiffs could not show standing to receive a preliminary injunction. Such an injunction would have immediately barred government abuse going forward, but Barrett held, basically, that just because it did happen doesn’t mean it will happen again and therefore the plaintiffs are not entitled to preliminary (or prospective) relief.
As part of her reasoning, Barrett said that social media platforms did act on their own, at least on occasion, as part of their standard “content moderation” efforts and there was little or no “traceability” back to specific government individuals showing an immediate and direct correlation between a government compliant and a private company action.
Wrong.
First, in the Hines matter, even Barrett noted there was an element of traceability (that was enough for Alito to say she unquestionably had standing to seek relief and, therefore, the case should have been decided on its merits).
Second, companies like Facebook, which in the past have paid huge fines to the government, are in a very precarious position vis-a-vis federal regulation. From “Section 230” protections – a government code that limits their exposure to civil liability when deciding to drop content – to ever-growing threats of further government intervention and potential anti-trust actions, social media companies are internally incentivized to comply with government requests.
In other words, it is not at all a coincidence that a very large percentage of social media execs are “former” government employees and elected officials.
“In sum, the officials wielded potent authority. Their communications with Facebook were virtual demands,” Alito wrote. “And Facebook’s quavering responses to those demands show that it felt a strong need to yield. For these reasons, I would hold that Hines is likely to prevail on her claim that the White House coerced Facebook into censoring her speech.”
In her ruling, Barrett made other significant errors. First, she referred to the “Election Integrity Partnership” (EIP) as a “private entity,” and therefore able to make requests of social media companies.
In fact, the EIP (a group of academic “misinformation specialists”) was morphed into existence by the Department of Homeland Security, specifically its Cybersecurity and Infrastructure Security Agency, typically known as CISA. The EIP was funded by the government, many of its workers were former (though for many, ‘former’ may be a stretch) federal security agency employees, and the EIP specifically and consistently did the bidding of CISA when asked.
For Barrett to call the EIP a “private entity” shows a complete (intentional?) misunderstanding of the legal landscape and the reality of censorship-industrial complex.
The EIP and other government-sponsored cutout groups that make up the censorship-industrial complex are as independent from the government and the deep state as a foot is independent from a leg.
Barrett also claimed that similar government activities seemed to have lessened in the recent past, making the need for the going-forward injunction unnecessary.
Such a statement is impossible to prove as being true or false – especially after today – but making the assumption that it is even vaguely true, Barrett again misses the mark. If the government is censoring less now than it did two years ago it is because of the massive amount of public attention that has been drawn to the despicable practice by the press and, to be blunt, this very lawsuit.
CISA, etc. did not wake up one morning 18 months ago and say ‘Hey, we better cool it on this” because they suddenly realized they were most likely violating the Constitution; they did so because of the public – and Congressional – pressure.
And now with at least the legal pressure lessened (and an election coming up), to believe that the activities will not increase is naïve to the point of childish – that’s why this future, going forward, prospective injunction was so important.
That didn’t stop the Biden administration from crowing and, presumably, figuring out to ramp up the program for November.
Critics of the decision were loud and voluminous. Appearing on Fox News, legal commentator Jonathan Turley said that “standing issues” are often “used to block meritorious claims” and that the government’s “censorship by surrogate makes a mockery of the First Amendment.”
“The Supreme Court’s decision,” said White House press secretary Karine Jean-Pierre, “helps ensure the Biden administration can continue our important work with technology companies to protect the safety and security of the American people.”
Matt Taibbi, one of the reporters behind the outing of the “Twitter files,” noted that KJP’s statement is astonishingly egregious, but also very telling. She essentially admits government censorship is occurring and claims it is good:
That “important work,” of course, includes White House officials sending emails to companies like Facebook, with notes saying things like ‘Wanted to flag the below tweet and am wondering if we can get moving on having it removed ASAP.’ The Supreme Court sidestepped ruling on the constitutionality of this kind of behavior in the Murthy v. Missouri case with one blunt sentence: “Neither the individual nor the state plaintiffs have established Article III standing to seek an injunction against any defendant.”
“The great War on Terror cop-out, standing — which killed cases like Clapper v. Amnesty International and ACLU v. NSA — reared its head again. In the last two decades, we’ve gotten used to the problem of legal challenges to new government programs being shot down precisely because their secret nature makes collecting evidence or showing standing or injury difficult, and Murthy proved no different.”
Dr. Jay Bhattacharya, an internationally recognized Stanford medical professor, is one of the private plaintiffs in the suit. Bhattacharya is one of the co-authors of the Great Barrington Declaration, which called for a more targeted and rational response to the pandemic response. When it comes to standing, he points directly to an email from then-National Institutes of Health Chief (Tony Fauci’s sort-of boss) Francis Collins, calling on his fellow government employees to engage in a “devastating takedown” of Bhattacharya and the Declaration itself.
Barrett wrote that “Enjoining the Government defendants, therefore, is unlikely to affect the platforms’ content-moderation decisions,” an opinion Bhattacharya was having none of.
“Unlikely to continue to be damaged?” asked Bhattacharya. “How do we know that? And now because of this ruling we have no legal protection from it happening. The court ruled that you can censor until you get caught and even then there will be no penalty.”
Because of the focus on standing, Bhattacharya likened today’s ruling to giving the go-ahead to “broadly censor ideas” as long as you make sure not to traceably censor a specific individual.
A disappointed Bhattacharya has hopes for the future – the case was, again, not decided on its merits and is simply remanded without the injunction back to federal district court in Louisiana – but thinks electeds need to pass laws to stop the censorship.
“At this point, Congress has to act and this needs to be an election issue,” Bhattacharya said.
John Vecchione, New Civil Liberties Alliance Senior Litigation Counsel and the lawyer for four of the five private individuals (including Hines and Bhattacharya) said today’s ruling was “not in accordance with the facts” of the situation.
“There is a level of unreality about this opinion,” Said Vecchione, adding that it reads like a “roadmap for government censors.”
While some in the media have tried to identify this case as having “right-wing” support, Vecchione noted it was originally filed while Donald Trump was president and therefore goes far beyond partisan politics to the heart of the rights of American citizens.
The suit, as noted, goes back to district court and Vecchione says they will continue to gather facts and depositions and even more specific instances of “traceability” – he says they already have enough, but Barrett did not agree – and keep working it through the courts. He said he expects to be back at the Supreme Court sometime in – hopefully – the near future.
“Meanwhile, any government agency, any administration can censor any message they don’t like,” Vecchione said.
And no matter a person’s politics, that is just plain wrong.
Or as Justice Alito wrote:
“For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech. Because the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent.”
Republished from the author’s Substack
From the Brownstone Institute
Anthony “I represent science” Fauci can now stand beside Richard “I am not a crook” Nixon in the history books as someone who received the poison pill of a preemptive pardon.
While Nixon was pardoned for specific charges related to Watergate, the exact crimes for which Fauci was pardoned are not specified. Rather, the pardon specifies:
Baseless and politically motivated investigations wreak havoc on the lives, safety, and financial security of targeted individuals and their families. Even when individuals have done nothing wrong – and in fact have done the right things – and will ultimately be exonerated, the mere fact of being investigated and prosecuted can irreparably damage reputations and finances.
In other words, the dying breath of the Biden administration appears to be pardoning Fauci for crimes he didn’t commit, which would seem to make a pardon null and void. The pardon goes further than simply granting clemency for crimes. Clemency usually alleviates the punishment associated with a crime, but here Biden attempts to alleviate the burden of investigations and prosecutions, the likes of which our justice system uses to uncover crimes.
It’s one thing to pardon someone who has been subjected to a fair trial and convicted, to say they have already paid their dues. Gerald Ford, in his pardon of Richard Nixon, admitted that Nixon had already paid the high cost of resigning from the highest office in the land. Nixon’s resignation came as the final chapter of prolonged investigations into his illegal and unpresidential conduct during Watergate, and those investigations provided us the truth we needed to know that Nixon was a crook and move on content that his ignominious reputation was carve d into stone for all of history.
Fauci, meanwhile, has evaded investigations on matters far more serious than Watergate. In 2017, DARPA organized a grant call – the PREEMPT call – aiming to preempt pathogen spillover from wildlife to people. In 2018 a newly formed collaborative group of scientists from the US, Singapore, and Wuhan wrote a grant – the DEFUSE grant – proposing to modify a bat sarbecovirus in Wuhan in a very unusual way. DARPA did not fund the team because their work was too risky for the Department of Defense, but in 2019 Fauci’s NIAID funded this exact set of scientists who never wrote a paper together prior or since. In late 2019, SARS-CoV-2 emerged in Wuhan with the precise modifications proposed in the DEFUSE grant submitted to PREEMPT.
It’s reasonable to be concerned that this line of research funded by Fauci’s NIAID may have caused the pandemic. In fact, if we’re sharp-penciled and honest with our probabilities, it’s likely beyond reasonable doubt that SARS-CoV-2 emerged as a consequence of research proposed in DEFUSE. What we don’t know, however, is whether the research proceeded with US involvement or not.
Congress used its constitutionally-granted investigation and oversight responsibilities to investigate and oversee NIAID in search of answers. In the process of these investigations, they found endless pages of emails with unjustified redactions, evidence that Fauci’s FOIA lady could “make emails disappear,” Fauci’s right-hand-man David Morens aided the DEFUSE authors as they navigated disciplinary measures at NIH and NIAID, and there were significant concerns that NIAID sought to obstruct investigations and destroy federal records.
Such obstructive actions did not inspire confidence in the innocence of Anthony Fauci or the US scientists he funded in 2019. On the contrary, Fauci testified twice under oath saying NIAID did not fund gain-of-function research of concern in Wuhan…but then we discovered a 2018 progress report of research NIAID funded in Wuhan revealing research they funded had enhanced the transmissibility of a bat SARS-related coronavirus 10,000 times higher than the wild virus. That is, indisputably, gain-of-function research of concern. Fauci thus lied to the American public and perjured himself in his testimony to Congress, and Senator Rand Paul (R-KY) has referred Fauci’s perjury charges to the Department of Justice.
What was NIAID trying to preempt with their obstruction of Congressional investigations? What is Biden trying to preempt with his pardon of Fauci? Why do we not have the 2019 NIAID progress report from the PI’s who submitted DEFUSE to PREEMPT and later received funding from NIAID?
It is deplorable for Biden to preemptively pardon Fauci on his last day in office, with so little known about the research NIAID funded in 2019 and voters so clearly eager to learn more. With Nixon’s preemptive pardon, the truth of his wrongdoing was known and all that was left was punishment. With Fauci’s preemptive pardon, the truth is not yet known, NIAID officials in Fauci’s orbit violated federal records laws in their effort to avoid the truth from being known, and Biden didn’t preemptively pardon Fauci to grant clemency and alleviate punishment, but to stop investigations and prosecutions the likes of which could uncover the truth.
I’m not a Constitutional scholar prepared to argue the legality of this maneuver, but I am an ethical human being, a scientist who contributed another grant to the PREEMPT call, and a scientist who helped uncover some of the evidence consistent with a lab origin and quantify the likelihood of a lab origin from research proposed in the DEFUSE grant. Any ethical human being knows that we need to know what caused the pandemic, and to deprive the citizenry of such information from open investigations of NIAID research in 2019 would be to deprive us of critical information we need to self-govern and elect people who manage scientific risks in ways we see fit. As a scientist, there are critical questions about bioattribution that require testing, and the way to test our hypotheses is to uncover the redacted and withheld documents from Fauci’s NIAID in 2019.
The Biden administration’s dying breath was to pardon Anthony Fauci not for the convictions for crimes he didn’t commit (?) but to avoid investigations that could be a reputational and financial burden for Anthony Fauci. A pardon to preempt an investigation is not a pardon; it is obstruction. The Biden administration’s dying breath is to obstruct our pursuit of truth and reconciliation on the ultimate cause of 1 million Americans’ dying breaths.
To remind everyone what we still need to know, it helps to look through the peephole of what we’ve already found to inspire curiosity about what else we’d find if only the peephole could be widened. Below is one of the precious few emails investigative journalists pursuing FOIAs against NIAID have managed to obtain from the critical period when SARS-CoV-2 is believed to have emerged. The email connects DEFUSE PI’s Peter Daszak (EcoHealth Alliance), Ralph Baric (UNC), Linfa Wang (Duke-NUS), Ben Hu (Wuhan Institute of Virology), Shi ZhengLi (Wuhan Institute of Virology) and others in October 2019. The subject line “NIAID SARS-CoV Call – October 30/31” connects these authors to NIAID.
It is approximately in that time range – October/November 2019 – when SARS-CoV-2 is hypothesized to have entered the human population in Wuhan. When it emerged, SARS-CoV-2 was unique among sarbecoviruses in having a furin cleavage site, as proposed by these authors in their 2019 DEFUSE grant. Of all the places the furin cleavage site could be, the furin cleavage site of SARS-CoV-2 was in the S1/S2 junction of the Spike protein, precisely as proposed by these authors.
In order to insert a furin cleavage site in a SARS-CoV, however, the researchers would’ve needed to build a reverse genetic system, i.e. a DNA copy of the virus. SARS-CoV-2 is unique among coronaviruses in having exactly the fingerprint we would expect from reverse genetic systems. There is an unusual even spacing in the cutting/pasting sites for the enzymes BsaI and BsmBI and an anomalous hot-spot of silent mutations in precisely these sites, exactly as researchers at the Wuhan Institute of Virology have done for other coronavirus reverse genetic systems. The odds of such an extreme synthetic-looking pattern occurring in nature are, conservatively, about 1 in 50 billion.
The virus did not emerge in Bangkok, Hanoi, Bago, Kunming, Guangdong, or any of the myriad other places with similar animal trade networks and greater contact rates between people and sarbecovirus reservoirs. No. The virus emerged in Wuhan, the exact place and time one would expect from DEFUSE.
With all the evidence pointing the hounds towards NIAID, it is essential for global health security that we further investigate the research NIAID funded in 2019. It is imperative for our constitutional democracy, for our ability to self-govern, that we learn the truth. The only way to learn the truth is to investigate NIAID, the agency Fauci led for 38 years, the agency that funded gain-of-function research of concern, the agency named in the October 2019 call by DEFUSE PI’s, the agency that funded this exact group in 2019.
A preemptive pardon prior to the discovery of truth is a fancy name for obstruction of justice. The Biden administration’s dying breath must be challenged, and we must allow Congress and the incoming administration to investigate the possibility that Anthony Fauci’s NIAID-supported research caused the Covid-19 pandemic.
Republished from the author’s Substack
Author
COVID-19
BREAKING: Days before Trump Inauguration HHS fires doctor in charge of gain of function research project
Dr. Daszak will likely be protected by the DoD & CIA from additional penalties.
By John Leake
HHS Formally Debars EcoHealth Alliance, President Peter Daszak Fired.
On January 17, 2025—just three days before President Trump is to be sworn in—Congress issued a press release with the following statement:
Today, after an eight-month investigation, the U.S. Department of Health and Human Services (HHS) cut off all funding and formally debarred EcoHealth Alliance Inc. (EcoHealth) and its former President, Dr. Peter Daszak, for five years based on evidence uncovered by the Select Subcommittee on the Coronavirus Pandemic.
As far as I can tell, the New York Times did not report this story, though the New York Post did.
More interesting than the superficial news reporting is the HHS ACTION REFERRAL MEMORANDUM recommending that Dr. Peter Daszak be barred from participating in United States Federal Government procurement and nonprocurement programs.
The Memorandum also states:
Dr. Peter Daszak was the President and Chief Executive Officer of EHA from 2009 until his termination, effective January 6, 2025. Dr. Daszak was the Project Director (PD)/Principal Investigator (PI) for Grant Number 1R01AI110964-01.
I am not sure what to make of this document, which is written in such an arcane and convoluted style that it challenges the attention span of even the most focused reader.
I have been researching this story for four years, and I found the following paragraphs the most intriguing:
9. In a letter dated May 28, 2016, the NIAID contacted EHA concerning possible GoF research based on information submitted in its most recent Year 2 RPPR. The NIAID notified EHA that GoF research conducted under Grant Number 5R01AI110964-03 would be subject to the October 17, 2014, United States Federal Government funding pause, and that per the funding pause announcement, new United States Federal Government funding would not be released for GoF research projects that may be reasonably anticipated to confer attributes to influenza, MERS, or SARS viruses such that the virus would have enhanced pathogenicity and/or transmissibility in mammals via the respiratory route. In the letter, the NIAID requested that EHA provide a determination within 15 days of the date of the letter as to whether EHA’s research under Grant Number 5R01AI110964-03 did or did not include GoF work subject to the funding pause.
10. In a letter dated June 8, 2016, EHA provided a response to the NIAID’s May 28, 2016 letter. EHA explained that the goal of its proposed work was to construct MERS and MERS-like chimeric CoVs in order to understand the potential origins of MERSCoV in bats by studying bat MERS-like CoVs in detail. EHA stated that it believed it was highly unlikely that the proposed work would have any pathogenic potential, but that should any of these recombinants show evidence of enhanced virus growth greater than certain specified benchmarks involving log growth increases, or grow more efficiently in human airway epithelial cells, EHA would immediately: (1) stop all experiments with the mutant, (2) inform the NIAID Program Officer of these results, and (3) participate in decision-making trees to decide appropriate paths forward.
11. Based on the information provided by EHA, the NIAID concluded that the proposed work was not subject to the GoF research pause. In a letter dated July 7, 2016, however, the NIAID informed EHA that should any of the MERS-like or SARS-like chimeras generated under the grant show evidence of enhanced virus growth greater than 1 log over the parental backbone strain, EHA must stop all experiments with these viruses and provide the NIAID Program Officer and Grants Management Specialist, and WIV Institutional Biosafety Committee, with the relevant data and information related to these unanticipated outcomes.
Note that various statements in the above paragraphs are inconsistent with what Baric et al. state in their 2015 paper A SARS-like cluster of circulating bat coronavirus shows potential for human emergence—a research paper funded by the NIAID EcoHealth Grant “Understanding the Risk of Bat Coronavirus Emergence.”
As the authors state in the section on Biosafety and biosecurity:
Reported studies were initiated after the University of North Carolina Institutional Biosafety Committee approved the experimental protocol (Project Title: Generating infectious clones of bat SARS-like CoVs; Lab Safety Plan ID: 20145741; Schedule G ID: 12279). These studies were initiated before the US Government Deliberative Process Research Funding Pause on Selected Gain-of-Function Research Involving Influenza, MERS and SARS Viruses (http://www.phe.gov/s3/
dualuse/Documents/gain-of- function.pdf). This paper has been reviewed by the funding agency, the NIH. Continuation of these studies was requested, and this has been approved by the NIH.
As I noted in my series of essays titled The Great SARS-CoV-2 Charade, one of the silliest lies told by Dr. Anthony Fauci has been his insistence that NIAID did not approve Gain-of-Function work by EcoHealth.
Fauci has repeatedly asserted this in a loud and vexed tone, as though he is outraged by the mere proposition. And yet, Ralph Baric and his colleagues—including Zhengli-Li Shi at the Wuhan Institute of Virology—plainly state in their 2015 paper that their Gain-of-Function experiments, performed in Baric’s UNC lab and Zhengli-Li Shi’s lab in Wuhan, were grandfathered in, given that they were funded before the 2014 Pause.
Another statement (in paragraph 11 of the recent HHS Action Referral Memo) that deserves special scrutiny is the following:
In a letter dated July 7, 2016, however, the NIAID informed EHA that should any of the MERS-like or SARS-like chimeras generated under the grant show evidence of enhanced virus growth greater than 1 log over the parental backbone strain, EHA must stop all experiments with these viruses and provide the NIAID Program Officer and Grants Management Specialist, and WIV Institutional Biosafety Committee, with the relevant data and information related to these unanticipated outcomes.
Again, it’s tough to interpret this statement, given that Baric et al. had, by the own admission, already generated chimeras that “replicate efficiently in primary human airway cells and achieve in vitro titers equivalent to epidemic strains of SARS-CoV.”
Let’s review what Baric et al. state in their Abstract about the functionality of the chimeric virus (named SHCOI4-MA15) they claimed to have generated. Using humanized mice (genetically modified to have primary human airway cells) as their experimental animals, the authors state:
Using the SARS-CoV reverse genetics system2, we generated and characterized a chimeric virus expressing the spike of bat coronavirus SHC014 in a mouse-adapted SARS-CoV backbone.
The results indicate that group 2b viruses encoding the SHC014 spike in a wild-type backbone can efficiently use multiple orthologs of the SARS receptor human angiotensin converting enzyme II (ACE2), replicate efficiently in primary human airway cells and achieve in vitro titers equivalent to epidemic strains of SARS-CoV. Additionally, in vivo experiments demonstrate replication of the chimeric virus in mouse lung with notable pathogenesis.
To this day, no legal authority that I am aware of has investigated the question: What became of the the chimeras SHC014-MA15 and WIV1-MA15? The latter chimera was documented by Baric et al. in their March 2016 paper titled SARS-like WIV1-CoV poised for human emergence—a chimera “that replaced the SARS spike with the WIV1 spike within the mouse-adapted backbone.”
What did the Wuhan Institute of Virology do with these chimeras? Did its researchers continue to modify and experiment with these chimeras?
Another exceedingly silly claim made by U.S. government officials—including members of Congress—is that the true origin of SARS-CoV-2 is likely to remain a mystery, given that the Chinese government and military will almost certainly never agree to perform a full and transparent investigation of their Wuhan Institute of Virology.
What did the U.S. government expect when it agreed to share cutting edge American biotechnology with the Wuhan Institute of Virology, which has long been known to be run by the Chinese military?
One grows weary of our U.S. government officials evading responsibility by pretending to be imbeciles or by revealing themselves to be true imbeciles.
If you found this post informative, please consider becoming a paid subscriber to our Substack. Penetrating the smoke and mirror show performed by the abominable U.S. government requires a great deal of time and effort.
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