Censorship Industrial Complex
Judges to decide if Robert F. Kennedy Jr. can sue Biden administration for colluding with social media companies to censor free speech
From LifeSiteNews
By Suzanne Burdick Ph.D., The Defender
The 5th Circuit U.S. Court of Appeals has heard oral arguments in the landmark censorship case, Kennedy et al. v. Biden et al.
The hearing focused on two points, Kim Mack Rosenberg, Children’s Health Defense (CHD) general counsel, told The Defender. First, the 5th Circuit is considering whether to uphold a lower court’s August decision that two of the three plaintiffs – Robert F. Kennedy Jr. and CHD – have legal standing to bring the suit.
Second, it’s considering whether to uphold the Lousiana court’s injunction, which would prohibit the Biden administration from coordinating with social media companies to censor Kennedy and CHD’s social media posts until the lawsuit is settled.
The case – brought by Kennedy, CHD, and news consumer Connie Sampognaro – alleges that President Joe Biden, Dr. Anthony Fauci, and other top administration officials and federal agencies “waged a systematic, concerted campaign” to compel the nation’s three largest social media companies to censor constitutionally protected speech.
During the October 8 hearing, Jed Rubenfeld – Yale law professor and attorney for the plaintiffs – told judges, “District court called this the most massive attack on free speech in this nation’s history, and it would be shocking if no plaintiff in the country had standing to challenge it.”
Standing is the legal doctrine that requires plaintiffs to be able to show they have suffered direct and concrete injuries and that those injuries could be resolved in court.
The issue of standing shut down another related government censorship case, Murthy v. Missouri. The plaintiffs in Murthy v. Missouri – the states of Missouri and Arkansas, Drs. Jay Bhattacharya, Martin Kulldorff, and Aaron Kheriaty, The Gateway Pundit’s Jim Hoft and health activist Jill Hines – argued that the censorship they experienced on social media could be tied to government action and that they were likely to be censored in the future. In June, the U.S. Supreme Court ruled the plaintiffs didn’t have standing to bring their case.
The Murthy – originally Missouri et al. v. Biden et al. – and Kennedy v. Biden cases were consolidated because they shared common legal and factual issues. This allowed them to share processes, such as discovery of evidence. However, they continued to be heard and ruled on separately.
The plaintiffs in Kennedy v. Biden are much more likely to be able to prove standing than the Murthy v. Missouri plaintiffs, Mack Rosenberg said:
With the Supreme Court’s decision in Murthy v. Missouri in the forefront on the issue of standing, we believe that the plaintiffs in our action have clearly demonstrated standing more than sufficient to meet the requirements the Supreme Court described in Murthy in June.
Mack Rosenberg said there is clear evidence that plaintiffs Kennedy and CHD were specific targets of censorship and that they continue to be censored. “CHD in particular continues to be deplatformed from major social media sites with no end in sight.”
She said the facts “demonstrate that the injunction issued by Judge Doughty was appropriate given the circumstances and the government’s continued actions.”
Legal battle has dragged on for over a year
Tuesday’s hearing was the latest development in a class action lawsuit brought by Kennedy, CHD, and Sampognaro on behalf of more than 80 percent of U.S. adults who access news from online news aggregators and social media companies, primarily Facebook, YouTube, and Twitter (now X).
The suit was filed on March 24, 2023, in the U.S. District Court for the Western District of Louisiana.
The case alleged that key officials and federal agencies in the Biden administration violated the plaintiffs’ First Amendment rights by censoring online speech disfavored by the government.
According to the complaint, “the federal government’s censorship campaign has repeatedly, systematically, and very successfully targeted constitutionally protected speech on the basis of its content and viewpoint.”
Nearly a year later, U.S. District Judge Terry Doughty issued a preliminary injunction prohibiting key Biden administration officials and agencies from coercing or significantly encouraging social media platforms to suppress or censor online content containing protected free speech.
However, Doughty stayed the injunction until the U.S. Supreme Court ruled on a similar injunction in the Murthy v. Missouri case.
After the Supreme Court on June 26 ruled in favor of the Biden administration in Murthy v. Missouri, Doughty on July 9 denied two motions by lawyers for the Biden administration seeking to overturn the preliminary injunction.
Less than 24 hours later, Biden administration lawyers filed an emergency motion with the 5th Circuit, seeking to block the injunction.
The 5th Circuit on July 25 sent the case back to the Louisiana District Court to decide if Kennedy, CHD, and Sampognaro have standing to bring the suit. The 5th Circuit also stayed the injunction while the case was being revisited by the District Court.
The District Court on August 20 gave the plaintiffs the green light to bring their suit, ruling that Kennedy and CHD had standing. Doughty concluded that plaintiff Sampognaro does not have standing.
Lawyers disagree on whether plaintiffs have standing
In Tuesday’s hearing, U.S. Department of Justice (DOJ) attorney Daniel Tenny argued on behalf of the defendants, saying that the Murthy v. Missouri decision “foreclosed” the plaintiffs’ theories on why the plaintiffs have standing.
Rubenfeld disagreed, saying that Kennedy v. Biden plaintiffs differ in key ways from the Murthy plaintiffs. First, unlike the Murthy plaintiffs, the Kennedy v. Biden plaintiffs have a “specific causation finding,” meaning there is clear evidence that “government defendants, through threats, caused the deplatforming and censorship that they suffered.”
Second, the Kennedy v. Biden plaintiffs have evidence of ongoing injury, not just past injury:
CHD’s deplatforming – which happened a couple of years ago – is exactly the same right now, unchanged in status as it was then. In other words, the government defendants are directly responsible for the injury that CHD is currently suffering.
“Number three,” Rubenfeld said, “we have specific evidence of, in the event of a favorable ruling from this court, a significant increase in the likelihood of our plaintiffs receiving relief.”
“That’s the established test for redressability,” he said. Redressability means that the plaintiffs’ alleged injuries are likely to be redressed if the court grants the relief the plaintiffs are seeking.
Right now there is zero likelihood that CHD will get relief, Rubenfeld said. “CHD has been litigating against Facebook for years. They have not reinstated them.”
If the 5th Circuit issues a ruling that Facebook’s actions were likely unconstitutional and that will likely be unconstitutional if Facebook keeps on doing it, “that changes [Facebook’s] incentive and that increases the likelihood that [CHD] will be reinstated.”
In their brief, plaintiffs’ attorneys also argued that Sampognaro, who is potentially immunocompromised, has what’s called “right-to-listen standing” because she needs access to accurate information about COVID-19 and possible treatments, and the censorship has obstructed that access.
Tenny urged the court to continue blocking the District Court’s injunction. Rubenfeld argued the injunction is needed because U.S. governmental agencies are “still today” trying to influence social media platforms “to suppress speech that they deem, they call misinformation.”
He added, “But we have seen over and over again that what they call misinformation often doesn’t turn out to be misinformation and turns out to be protected speech.”
The DOJ declined The Defender’s request for comment on October 8’s arguments.
This article was originally published by The Defender – Children’s Health Defense’s News & Views Website under Creative Commons license CC BY-NC-ND 4.0. Please consider subscribing to The Defender or donating to Children’s Health Defense.
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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