Brownstone Institute
Tremendous Progress in Missouri v. Biden
From the Brownstone Institute
BY 
As I explained previously, the government appealed the district court’s preliminary injunction in Missouri v. Biden, which would prohibit the government from pressuring social media companies to censor Americans online. Two days ago, a three-judge panel in the 5th Circuit court of appeals heard oral arguments from both sides.
Alex Gutentag over at Public yesterday provided a great summary of the judge’s responses during the hearing:
Yesterday the Fifth Circuit court heard oral arguments in the Missouri v. Biden case, and the judges did not hold back. One judge suggested the government “strongarms” social media companies and that their meetings had included “veiled and not-so-veiled threats.”
Another judge described the exchange between the Biden administration and tech companies as the government saying, “Jump!” and the companies responding, “How high?”
“That’s a really nice social media company you got there. It’d be a shame if something happened to it,” the judge said, describing the government’s coercive tactics.
Attorney John Sauer, representing Louisiana, masterfully argued that the government had repeatedly violated the First Amendment. He pointed to specific evidence of coercion in the Facebook Files.
“You have a really interesting snapshot into what Facebook C-suite is saying,” Sauer explained. “They’re emailing Mark Zuckerberg and Sheryl Sandberg and saying things like… ‘Why were we taking out speech about the origins of covid and the lab leak theory?’” The response, Sauer said, was, “Well, we shouldn’t have done it, but we’re under pressure from the administration.”
He also cited an email from Nick Clegg, Facebook President of Global Affairs, that pointed to “bigger fish to fry with the Administration — data flows, etc.”
On Monday, Public reported that these “data flows” referred to leverage the Biden administration had over the company; Facebook needed the White House to negotiate a deal with the European Union. Only through this deal could Facebook maintain access to user data that is crucial for its $1.2 billion annual European business.
But Sauer also made it clear that coercion was not the only basis on which the court could rule against the Biden administration. Joint activity between the White House and social media platforms would also be unconstitutional.
Sauer compared what the government had done to book burning. “Imagine a scenario where senior White House staffers contact book publishers… and tell them, ‘We want to have a book burning program, and we want to help you implement this program… We want to identify for you the books that we want burned, and by the way, the books that we want burned are the books that criticize the administration and its policies.”
Daniel Tenny, the attorney for the Department of Justice, was left nitpicking and misrepresenting the record. In one instance, he denied that Anthony Fauci and Francis Collins had hatched a plan to orchestrate a “takedown” of the Great Barrington Declaration. Why? Because, Tenny said, according to their emails, they actually planned a takedown of “the premises of the Great Barrington Declaration.”
Tenny also stated that social media companies had not removed any true content. From the case’s discovery as well as the Facebook Files we know that is far from true. Facebook, against internal research and advice, did remove “often-true content” that might discourage people from getting vaccinated. Facebook’s own emails clearly suggest that the company only did this due to pressure from figures within the Biden Administration.
Tenny also claimed that when Rob Flaherty, the White House director of Digital Strategy, dropped the F-bomb in an exchange with Facebook it was not about content moderation. In fact, it was precisely about content moderation and occurred during a conversation about how Instagram was throttling Biden’s account. Ironically, the account couldn’t gain followers because Meta’s algorithm had determined that it was spreading vaccine misinformation.
Later, Sauer demolished an earthquake hypothetical that Tenny had introduced to justify state-sponsored censorship. “You can say this earthquake-related speech that’s disinformation is false, it’s wrong,” Sauer said. “The government can say it’s bad, but the government can’t say, ‘Social media platforms, you need to take it down.’ Just like a government can’t stand at the podium and say, ‘Barnes and Noble, you need to burn the bad books, burn the Communist books, whatever it is.’ They can’t say take down speech on the basis of content.”
Based on this hearing, the plaintiffs in Missouri v. Biden may have a strong chance of winning. Biden’s DOJ simply had no valid arguments to present. The evidence is clear: the administration brazenly engaged in an unlawful censorship campaign and instrumentalized private companies to do its bidding. This total disregard for fundamental civil liberties will be a stain on the Democratic Party for years to come.
Matt Taibbi’s reporting on this at Racket News yesterday was likewise excellent. I especially appreciated his colorful account of our brilliant lawyer, John Sauer. A few excerpts:
Early in the afternoon, a three-judge panel met to decide whether or not to revoke a stay of Judge Terry Doughty’s sweeping July 4th order barring a battery of government agencies from contacting social media companies about content moderation. Biden administration counsel Daniel Bentele Hahs Tenny was under fire from the jump.
It was hard not to feel for Tenny. Sitting across from him was a packed table of anxious plaintiffs’ attorneys, including Missouri’s garrulous, tornado-like former Solicitor General John Sauer — the driving force behind the Missouri v. Biden legislation — as well as the current officeholder, a lean, plain-spoken lawyer with Jimmy Stewart vibes named Josh Devine. Tenny, an ashen, slouching figure, was alone. In a case of major historical import, likely headed to the Supreme Court, the federal government hadn’t even sent another lawyer to keep him company. Staring down at his table, he looked like Napoleon Dynamite at lunch.
Called first, Tenny read a speech. He made it through the first thirty seconds well enough, arguing that Doughty’s July 4th order would leave the government “powerless” to discourage social media companies from disseminating “untrue” statements in the event of a natural disaster. Then, almost right away, he stepped in it.
“To take another example,” Tenny went on. “If… a government official were to conclude that it was likely, although not certain, that posts on social media were part of a criminal conspiracy, for example regarding human trafficking… the government official would be powerless to bring those posts to the social media company’s attention.”
Judges Edith Brown Clement, Jennifer Walker Elrod, and Don Willett listened sleepily at first, but all three snapped awake at the words “criminal conspiracy.” Doughty’s July 4th order specifically exempted communications about “criminal activity or criminal conspiracies,” posts that “threaten the public safety,” and communications about things that are “not protected free speech.” Tenny’s remarks more or less immediately drove into this wall of exceptions.
“So you do not believe that either of those are covered by the exception or exclusion specifically contained in the injunction?” asked Elrod.
Things then went bad to worse for the government:
Before long judges were rattling off greatest hits of both the Missouri v. Biden evidence and Facebook Files material, the worst possible scenario. Elrod within minutes was referencing posts by officials like the White House’s Rob Flaherty expressing frustration that content like Tucker Carlson videos or Alex Berenson articles hadn’t been removed.
“What appears to be in the record are these irate messages from time to time from high ranking government officials that say, you didn’t do this yet,” she said. “It’s like ‘Jump!’ and ‘How High?’”
Tenny tried to reorient Elrod to the question of whether or not this constituted overt coercion. If you were coercing, he said, “You wouldn’t say, ‘I’m really mad.’ You would just say, ‘Do this or else,’ and the or else would be clear.”
Elrod, not buying it, launched into an extraordinary counter-argument, comparing the federal government to the mob:
If you’ll excuse me, it’s like if somebody is in these movies that we see with the mob or something. They don’t say and spell out things, but they have these ongoing relationships, and they never actually say, “Go do this or else you are going to have this consequence.” But everybody just knows…
I’m certainly not equating the federal government with anybody in illegal organized crime. But… there are certain relationships where people know things without always saying the “or else.”
Willett put the mob analogy in even plainer language, saying the government’s behavior was a “fairly unsubtle kind of strong-arming,” as in, “That’s a really nice social media platform you got there. It’d be a shame if something happened to it.”
Then our lawyer John Sauer’s took his turn delivering a barrage of evidence and pointed arguments like a caped crusader making short work of helpless thugs:
In the court gallery a few clerks winced at one another at certain points of Tenny’s address, the way people do at boxing matches when someone walks into a face shot. The effect got worse when Tenny walked off and a furious Sauer addressed the judges. While Tenny rambled and spoke in generalities, the loquacious, bespectacled Sauer — who appears descended from some ancient God of rage — tore into the government’s arguments with ferocity and specificity. Judges tried at various points to challenge him, but he kept hurling cites back so fast the queries got lost.
“I would direct the court’s attention to pages 70 to 75 and 80 to 86 of the District court’s opinion,” he’d say, “where he makes specific findings resulting in the conclusion that CISA and the Election Integrity Partnership were, quote, ‘completely intertwined…’”
Taibbi then placed the significance of this case into context, explaining why the case will almost certainly end up at the Supreme Court:
Missouri v. Biden is fast becoming the vehicle through which a diverse series of recent disclosures about government censorship, including the Twitter Files reports, is likely to be litigated at a national level. What was pooh-poohed as conspiracy theory even a year ago is now a cat-hair away from being addressed and potentially proscribed by the country’s highest court. For the issue to get there at all would in itself represent an incredible journey, but signs continue to accumulate that a rare major judicial reprimand of the intelligence and enforcement communities could actually happen, and soon, too.
It would be a mistake to read too much into hearings like yesterday’s. One never knows how judges will rule, even when they appear to show emotion and inclination in court. Sometimes, they’re playing Devil’s advocate. The appellate panel, charged with deciding whether or not to reinstate Doughty’s sweeping order, could easily surprise those who attended and rule against the plaintiffs. Either way, an answer is expected soon. Attorneys present gave estimates ranging from a few weeks to two months for the panel to rule on yesterday’s issue.
A crucial fact of this case, however, is that Doughty’s July 4th order has created a motivation for both sides to push forward to the Supreme Court as soon as possible. Doughty’s ruling, which described the current Internet censorship regime as “arguably… the most massive attack against free speech in United States history,” essentially said that the damage from current government-influenced content moderation schemes may be so extreme that they must be completely enjoined until courts can determine how bad they are. That ruling was a major victory for the plaintiffs, and if the July 14th stay by the Fifth Circuit Court of Appeals remains in place, the plaintiffs will almost certainly appeal right away to a higher court in hopes of restoring their big win.
If the plaintiffs prevail, on the other hand, Doughty’s order will go back in force and the government will essentially be barred from meddling in the speech landscape. The administration has already argued on paper that this can’t be tolerated for any length of time, as any inability to pursue these “initiatives to prevent grave harm to the American people and our democratic processes,” causes the state “irreparable harm.” A more cynical interpretation might be that the “irreparable harm” is the prospect of the administration going without nuclear opinion-managing tools heading into an election year. Either way, a loss on the stay question will similarly motivate the administration to push for immediate Supreme Court consideration.
That’s all for now, folks. I will update you as soon as we get a ruling from the 5th Circuit. I remain optimistic that an eventual win at the Supreme Court will be the first major step toward completely dismantling the government’s censorship leviathan and restoring First Amendment free speech rights for all Americans.
Thank you for your continued support.
Reprinted from the author’s Substack
Author
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
From the Brownstone Institute
This article was co-authored with Mary Beth Pfieffer.
In a seismic political shift, Republicans have laid claim to an issue that Democrats left in the gutter—the declining health of Americans. True, it took a Democrat with a famous name to ask why so many people are chronically ill, disabled, and dying younger than in 47 other countries. But the message resonated with the GOP.
We have a proposal in this unfolding milieu. Let’s have a serious, nuanced discussion. Let’s retire labels that have been weaponized against Robert F. Kennedy, Jr., nominated for Health and Human Services Secretary, and many people like him.
Start with discarding threadbare words like “conspiracy theory,” “anti-vax,” and the ever-changing “misinformation.”
These linguistic sleights of hand have been deployed—by government, media, and vested interests—to dismiss policy critics and thwart debate. If post-election developments tell us anything, it is that such scorn may no longer work for a population skeptical of government overreach.
Although RFK has been lambasted for months in the press, he just scored a 47 percent approval rating in a CBS poll.
Americans are asking: Is RFK on to something?
Perhaps, as he contends, a 1986 law that all but absolved vaccine manufacturers from liability has spawned an industry driven more by profit than protection.
Maybe Americans agree with RFK that the FDA, which gets 69 percent of its budget from pharmaceutical companies, is potentially compromised. Maybe Big Pharma, similarly, gets a free pass from the television news media that it generously supports. The US and New Zealand, incidentally, are the only nations on earth that allow “direct-to-consumer” TV ads.
Finally, just maybe there’s a straight line from this unhealthy alliance to the growing list of 80 childhood shots, inevitably approved after cursory industry studies with no placebo controls. The Hepatitis B vaccine trial, for one, monitored the effects on newborns for just five days. Babies are given three doses of this questionably necessary product—intended to prevent a disease spread through sex and drug use.
Pointing out such conflicts and flaws earns critics a label: “anti-vaxxer.”
Misinformation?
If RFK is accused of being extreme or misdirected, consider the Covid-19 axioms that Americans were told by their government.
The first: The pandemic started in animals in Wuhan, China. To think otherwise, Wikipedia states, is a “conspiracy theory,” fueled by “misplaced suspicion” and “anti-Chinese racism.”
Not so fast. In a new 520-page report, a Congressional subcommittee linked the outbreak to risky US-supported virus research at a Wuhan lab at the pandemic epicenter. After 25 hearings, the subcommittee found no evidence of “natural origin.”
Is the report a slam dunk? Maybe not. But neither is an outright dismissal of a lab leak.
The same goes for other pandemic dogma, including the utility of (ineffective) masks, (harmful) lockdowns, (arbitrary) six-foot spacing, and, most prominently, vaccines that millions were coerced to take and that harmed some.
Americans were told, wrongly, that two shots would prevent Covid and stop the spread. Natural immunity from previous infection was ignored to maximize vaccine uptake.
Yet there was scant scientific support for vaccinating babies with little risk, which few other countries did; pregnant women (whose deaths soared 40 percent after the rollout), and healthy adolescents, including some who suffered a heart injury called myocarditis. The CDC calls the condition “rare;” but a new study found 223 times more cases in 2021 than the average for all vaccines in the previous 30 years.
Truth Muzzled?
Beyond this, pandemic decrees were not open to question. Millions of social media posts were removed at the behest of the White House. The ranks grew both of well-funded fact-checkers and retractions of countervailing science.
The FDA, meantime, created a popular and false storyline that the Nobel Prize-winning early-treatment drug ivermectin was for horses, not people, and might cause coma and death. Under pressure from a federal court, the FDA removed its infamous webpage, but not before it cleared the way for unapproved vaccines, possible under the law only if no alternative was available.
An emergency situation can spawn official missteps. But they become insidious when dissent is suppressed and truth is molded to fit a narrative.
The government’s failures of transparency and oversight are why we are at this juncture today. RFK—should he overcome powerful opposition—may have the last word.
The conversation he proposes won’t mean the end of vaccines or of respect for science. It will mean accountability for what happened in Covid and reform of a dysfunctional system that made it possible.
Republished from RealClearHealth
Author
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