Brownstone Institute
We Landed a Major Blow Against the Censorship Leviathan
From the Brownstone Institute
Courts rarely release rulings on federal holidays, but no doubt to drive home the point about how important this case is for our constitutionally guaranteed liberties, Judge Terry Doughty released on Independence Day his 155-page ruling on our request for a preliminary injunction against the government’s censorship regime.
The entire document is worth reading for those who want to dig into the details, but in short, he granted nearly all the provisions in our request, placing strict limits around any communication between government officials and social media companies. If such communications continue, they will be subject to subpoena in our case and could implicate the actors in criminal liabilities for violating the injunction.
One naturally wants to believe that an issue one is involved in is of world-historical importance. But as the judge himself wrote in the decision, “If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history.” That, my friends, is a strong claim, but as I have previously argued, an entirely accurate one.
As former attorney general of Missouri, now senator Eric Schmitt, told journalist Michael Shellenberger, “It’s shocking. The level of coordination between senior government officials and senior social media executives is astounding. There were direct text messages from the surgeon general of the United States to senior Facebook officials saying, ‘Take this down.’ It’s just un-American.”
According to Shellenberger, Schmitt called on the Department of Homeland Security’s Director of the Cybersecurity and Infrastructure Security Agency (CISA), Jennifer Easterly, to resign. He also believes that the US Congress should mandate transparency by Big Tech companies. “Jennifer Easterly ought to resign,” he said, “no doubt about that. And I think that the people getting swept up in this now, who were engaged in it, they ought to be exposed, and there ought to be consequences.”
Due to time pressure today with media interviews about this news, I will here quote at length Shellenberger’s report from today quoting me — lazy and kind of weird, I know:
Before Judge Doughty issued his ruling, we also spoke to Dr. Aaron Kheriaty, a plaintiff in the case. Kheriaty is the former director of medical ethics at the University of California Irvine but was fired after he challenged the university’s vaccine mandate in court. “You learn who your real friends are when you go through something like that,” he said. “The whole experience was a bit surreal.”
After taking a national stand against vaccine mandates, Kheriaty wrote a book, The New Abnormal: The Rise of the Biomedical Security State. Through his research for the book, the government’s vast censorship operation became clear to him. “Part of what made all the bad policies possible was the strict and rigid control of the flow of information,” Kheriaty said.
The information he and his co-plaintiffs discovered through their lawsuit shocked even them, he told us.
“We didn’t know what we would find when we turned over that rock,” said Kheriaty. “And it turns out that censorship was happening not just at the behest of public health agencies, like the CDC and the NIH, but the intelligence agencies were involved—the Department of Justice, FBI, the State Department, Department of Homeland Security. So the whole military intelligence industrial complex is tangled up in the censorship industrial complex.”
In his recent article in Tablet, Kheriaty called the government’s program the “Censorship Leviathan.” Describing this leviathan as part of a totalitarian system, Kheriaty pointed to the work of German-American political philosopher Eric Voegelin. “[Voegelin] said the common feature of all totalitarian systems… is the prohibition of questions,” Kheriaty explained.
We asked Kheriaty about his reaction to the injunction, which is an important step on the road to the Supreme Court. “I know in my bones we are going to win this one: the evidence in our favor is simply overwhelming,” he told us. “Yesterday’s ruling marks the beginning of the end of the censorship leviathan.”
Said Kheriaty, “The United States Constitution is something of a miracle. But unless we defend it, it’s just a piece of paper.”
I also spoke this morning to journalist Matt Taibbi, and will quote generously from his excellent reporting today on the injunction (Side note: Shellenberger’s and Taibbi’sSubstacks are worth subscribing to if you want additional coverage of the censorship issue—both were among the initial journalists to break the Twitter Files stories and are closely following our case):
With this ruling in the Missouri v. Biden censorship case, Doughty went out of his way on the Fourth of July, to issue a stern rebuke at a conga line of government officials, many of them characters in the Twitter Files. Racket readers will recognize names like Elvis Chan and Laura Dehmlow (of the FBI), Jen Easterly and Brian Scully (of the Department of Homeland Security), Laura Rosenberger (Special Assistant to the President, and one of the creators of Hamilton 68) and Daniel Kimmage (of the Global Engagement Center), who were all just ordered to get the hell off the First Amendment’s lawn. Paraphrasing, Doughty enjoined them from:
meeting with social-media companies for the purpose of pressuring or inducing in any manner the removal or suppression of protected free speech;
- flagging posts on social-media platforms and/or forwarding to social-media companies urging the same;
- collaborating with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any “like project” or group for the same purpose;
- threatening or coercing social-media companies to remove protected free speech.
The legacy media, which has been studiously ignoring this case, could not ignore yesterday’s ruling, so there were reports in the New York Times, the Washington Post, the Wall Street Journal, Reuters, and so forth. The Times and the Post disappointingly tried to frame the case as a partisan issue. But of course, it’s not a left/right or liberal/conservative issue at all: it’s a legal/illegal issue. The only question is whether government officials did or did not violate the highest law of the land—namely, the United States Constitution. Yesterday, the court indicated that the answer to this question is likely yes, the government’s actions were probably unconstitutional and the plaintiff’s are likely to succeed on the merits.
The New York Times reporters even wrung their hands worrying that the ruling could “curtail efforts to fight disinformation”—begging the question about who decides what constitutes disinformation. The First Amendment clearly indicates this cannot be the job of the government. More tellingly, the Times and the Post in their framing of the case simply said the quiet part out loud, indicating that these newspapers believe government censorship is good as long as it’s controlling the flow of information in directions that they approve.
Taibbi goes on to comment:
Yesterday’s ruling, which naturally will be dismissed as Republican clickbait, shows at least one federal judge agreed with the argument that a complex system to mass-funnel content recommendations from enforcement agencies and politicians to tech platforms represents what the Attorneys General called a “sprawling federal ‘Censorship Enterprise.’” As one of the plaintiffs, Dr. Aaron Kheriaty wrote, the evidence in the suit revealed a far broader range of topics monitored by government than most people know of even now, from gender ideology to abortion to monetary policy to the war in Ukraine and beyond.
“Take any contentious issue in American public life,” said Kheriaty today, “and it seems like the federal government, once they got this machinery rolling, just thought, ‘Okay, we can combat ‘misinformation’ on all kinds of things.’”
The Missouri v. Biden investigators found the same fact patterns found by Twitter Files reporters like me, Michael Shellenberger, Bari Weiss, Lee Fang, David Zweig, and Paul Thacker, and then later Andrew Lowenthal, Aaron Mate, Sue Schmidt, Matt Orfalea, Tom Wyatt, Matt Farwell, @Techno_Fog, and many others did. They also echoed descriptions by like Jacob Siegel at Tablet, or Robby Soave at Reason, who wrote about similar issues at Facebook.
Those of us who worked on the Twitter Files story initially experienced the same problem investigators and plaintiffs in the Missouri v. Biden case apparently did, being unsure of what to make of the sheer quantity of agencies and companies involved in what looked like organized censorship schemes. I know I wasn’t alone among Twitter Files reporters in being nervous to report that content moderation “requests” were coming from “agencies across the federal government — from the State Department to the Pentagon to the CIA.” It’s what we were seeing, but seemed too nuts to be true. But as time went on, even more topics, government offices, and state-partnered organizations started popping up, leaving little question of what we were looking at.
Eventually, we found the same plot outlined in Missouri v. Biden: pressure from government in the form of threatened regulation, followed by a stream of recommendations about content from multiple agencies (the investigators in this lawsuit even found meddling by the Census Bureau). This was capped by the construction of quasi-private bureaucracies that in some cases appeared to have been conceived as a way for the government to partner on content moderation without being in direct violation of the First Amendment.
Most of us covering the Twitter Files tried to avoid delving into the constitutionality/legality question, but couldn’t help wondering in some cases, for instance with Stanford’s Election Integrity Partnership and Virality Project, which created cross-platform content ticketing systems about the 2020 race and Covid-19. We all thought we were looking at a potentially major problem there, since the principals from places like Stanford weren’t shy about saying they wanted to “fill the gap of the things that the government cannot do themselves” because partners like DHS/CISA lacked “the funding and the legal authorizations” to do the work.
What might happen if judges or juries were presented with that whole picture, including details about the open, ongoing partnerships of these groups with government agencies like CISA and the Surgeon General? We have some idea now.
The dismissal of these complaints as partisan “tinfoil hat” conspiracy by politicians like the ones who interrogated Michael Shellenberger and me in Congress, and by papers like the New York Times and Washington Post, has all along felt like the the same kind of error that led to the mis-call of the 2016 election and the massive loss of audience for traditional media stations in the years that ensued.
These mainstream news observers are trapped in a bubble of their own making and can’t or won’t see that the average American looks at letters from the White House to shut down social media accounts, or piles of “suggestions” on content from the FBI, and feels instinctively that he or she really doesn’t like that, whatever it is. One can hope at least a few censorship advocates will read the ruling and grasp that in a democracy, you can’t have a situation where only half (or less) of the population thinks something as basic as the speech landscape is fairly arranged. That just won’t hold, making rulings like this foreseeable, if not inevitable. No matter what, this can’t be anything but good news for the First Amendment.
“Hopefully,” said Kheriaty, “yesterday was the beginning of the end of the censorship Leviathan.”
I’ll be posting more commentary on the ruling and next steps in the case in the days ahead. Yesterday was the first victory in the long and slow road to the Supreme Court, where observers believe this case will ultimately be decided. For now, I’ll leave you with a few sobering lines from the closing pages of yesterday’s decision (p. 154):
Although this case is still relatively young, and at this stage the Court is only examining it in terms of Plaintiffs’ likelihood of success on the merits, the evidence produced thus far depicts an almost dystopian scenario. During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian “Ministry of Truth.”
The Plaintiffs have presented substantial evidence in support of their claims that they were the victims of a far-reaching and widespread censorship campaign. This court finds that they are likely to succeed on the merits of their First Amendment free speech claim against the Defendants.
I trust that, in the end, we will succeed.
Reposted from the author’s Substack
Author
From the Brownstone Institute
By 
Who Controls the Administrative State?
President Trump on March 20, 2025, ordered the following: “The Secretary of Education shall, to the maximum extent appropriate and permitted by law, take all necessary steps to facilitate the closure of the Department of Education.”
That is interesting language: to “take all necessary steps to facilitate the closure” is not the same as closing it. And what is “permitted by law” is precisely what is in dispute.
It is meant to feel like abolition, and the media reported it as such, but it is not even close. This is not Trump’s fault. The supposed authoritarian has his hands tied in many directions, even over agencies he supposedly controls, the actions of which he must ultimately bear responsibility.
The Department of Education is an executive agency, created by Congress in 1979. Trump wants it gone forever. So do his voters. Can he do that? No but can he destaff the place and scatter its functions? No one knows for sure. Who decides? Presumably the highest court, eventually.
How this is decided – whether the president is actually in charge or really just a symbolic figure like the King of Sweden – affects not just this one destructive agency but hundreds more. Indeed, the fate of the whole of freedom and functioning of constitutional republics may depend on the answer.
All burning questions of politics today turn on who or what is in charge of the administrative state. No one knows the answer and this is for a reason. The main functioning of the modern state falls to a beast that does not exist in the Constitution.
The public mind has never had great love for bureaucracies. Consistent with Max Weber’s worry, they have put society in an impenetrable “iron cage” built of bloodless rationalism, needling edicts, corporatist corruption, and never-ending empire-building checked by neither budgetary restraint nor plebiscite.
Today’s full consciousness of the authority and ubiquity of the administrative state is rather new. The term itself is a mouthful and doesn’t come close to describing the breadth and depth of the problem, including its root systems and retail branches. The new awareness is that neither the people nor their elected representatives are really in charge of the regime under which we live, which betrays the whole political promise of the Enlightenment.
This dawning awareness is probably 100 years late. The machinery of what is popularly known as the “deep state” – I’ve argued there are deep, middle, and shallow layers – has been growing in the US since the inception of the civil service in 1883 and thoroughly entrenched over two world wars and countless crises at home and abroad.
The edifice of compulsion and control is indescribably huge. No one can agree precisely on how many agencies there are or how many people work for them, much less how many institutions and individuals work on contract for them, either directly or indirectly. And that is just the public face; the subterranean branch is far more elusive.
The revolt against them all came with the Covid controls, when everyone was surrounded on all sides by forces outside our purview and about which the politicians knew not much at all. Then those same institutional forces appear to be involved in overturning the rule of a very popular politician whom they tried to stop from gaining a second term.
The combination of this series of outrages – what Jefferson in his Declaration called “a long train of abuses and usurpations, pursuing invariably the same Object” – has led to a torrent of awareness. This has translated into political action.
A distinguishing mark of Trump’s second term has been an optically concerted effort, at least initially, to take control of and then curb administrative state power, more so than any executive in living memory. At every step in these efforts, there has been some barrier, even many on all sides.
There are at least 100 legal challenges making their way through courts. District judges are striking down Trump’s ability to fire workers, redirect funding, curb responsibilities, and otherwise change the way they do business.
Even the signature early achievement of DOGE – the shuttering of USAID – has been stopped by a judge with an attempt to reverse it. A judge has even dared tell the Trump administration who it can and cannot hire at USAID.
Not a day goes by when the New York Times does not manufacture some maudlin defense of the put-upon minions of the tax-funded managerial class. In this worldview, the agencies are always right, whereas any elected or appointed person seeking to rein them in or terminate them is attacking the public interest.
After all, as it turns out, legacy media and the administrative state have worked together for at least a century to cobble together what was conventionally called “the news.” Where would the NYT or the whole legacy media otherwise be?
So ferocious has been the pushback against even the paltry successes and often cosmetic reforms of MAGA/MAHA/DOGE that vigilantes have engaged in terrorism against Teslas and their owners. Not even returning astronauts from being “lost in space” has redeemed Elon Musk from the wrath of the ruling class. Hating him and his companies is the “new thing” for NPCs, on a long list that began with masks, shots, supporting Ukraine, and surgical rights for gender dysphoria.
What is really at stake, more so than any issue in American life (and this applies to states around the world) – far more than any ideological battles over left and right, red and blue, or race and class – is the status, power, and security of the administrative state itself and all its works.
We claim to support democracy yet all the while, empires of command-and-control have arisen among us. The victims have only one mechanism available to fight back: the vote. Can that work? We do not yet know. This question will likely be decided by the highest court.
All of which is awkward. It is impossible to get around this US government organizational chart. All but a handful of agencies live under the category of the executive branch. Article 2, Section 1, says: “The executive Power shall be vested in a President of the United States of America.”
Does the president control the whole of the executive branch in a meaningful way? One would think so. It’s impossible to understand how it could be otherwise. The chief executive is…the chief executive. He is held responsible for what these agencies do – we certainly blasted away at the Trump administration in the first term for everything that happened under his watch. In that case, and if the buck really does stop at the Oval Office desk, the president must have some modicum of control beyond the ability to tag a marionette to get the best parking spot at the agency.
What is the alternative to presidential oversight and management of the agencies listed in this branch of government? They run themselves? That claim means nothing in practice.
For an agency to be deemed “independent” turns out to mean codependency with the industries regulated, subsidized, penalized, or otherwise impacted by its operations. HUD does housing development, FDA does pharmaceuticals, DOA does farming, DOL does unions, DOE does oil and turbines, DOD does tanks and bombs, FAA does airlines, and so on It goes forever.
That’s what “independence” means in practice: total acquiescence to industrial cartels, trade groups, and behind-the-scenes systems of payola, blackmail, and graft, while the powerless among the people live with the results. This much we have learned and cannot unlearn.
That is precisely the problem that cries out for a solution. The solution of elections seems reasonable only if the people we elected actually have the authority over the thing they seek to reform.
There are criticisms of the idea of executive control of executive agencies, which is really nothing other than the system the Founders established.
First, conceding more power to the president raises fears that he will behave like a dictator, a fear that is legitimate. Partisan supporters of Trump won’t be happy when the precedent is cited to reverse Trump’s political priorities and the agencies turn on red-state voters in revenge.
That problem is solved by dismantling agency power itself, which, interestingly, is mostly what Trump’s executive orders have sought to achieve and which the courts and media have worked to stop.
Second, one worries about the return of the “spoils system,” the supposedly corrupt system by which the president hands out favors to friends in the form of emoluments, a practice the establishment of the civil service was supposed to stop.
In reality, the new system of the early 20th century fixed nothing but only added another layer, a permanent ruling class to participate more fully in a new type of spoils system that operated now under the cloak of science and efficiency.
Honestly, can we really compare the petty thievery of Tammany Hall to the global depredations of USAID?
Third, it is said that presidential control of agencies threatens to erode checks and balances. The obvious response is the organizational chart above. That happened long ago as Congress created and funded agency after agency from the Wilson to the Biden administration, all under executive control.
Congress perhaps wanted the administrative state to be an unannounced and unaccountable fourth branch, but nothing in the founding documents created or imagined such a thing.
If you are worried about being dominated and destroyed by a ravenous beast, the best approach is not to adopt one, feed it to adulthood, train it to attack and eat people, and then unleash it.
The Covid years taught us to fear the power of the agencies and those who control them not just nationally but globally. The question now is two-fold: what can be done about it and how to get from here to there?
Trump’s executive order on the Department of Education illustrates the point precisely. His administration is so uncertain of what it does and can control, even of agencies that are wholly executive agencies, listed clearly under the heading of executive agencies, that it has to dodge and weave practical and legal barriers and land mines, even in its own supposed executive pronouncements, even to urge what might amount to be minor reforms.
Whoever is in charge of such a system, it is clearly not the people.
Author
From the Brownstone Institute
What War Means
My mother once told me how my father still woke up screaming in the night years after I was born, decades after the Second World War (WWII) ended. I had not known – probably like most children of those who fought. For him, it was visions of his friends going down in burning aircraft – other bombers of his squadron off north Australia – and to be helpless, watching, as they burnt and fell. Few born after that war could really appreciate what their fathers, and mothers, went through.
Early in the movie Saving Private Ryan, there is an extended D-Day scene of the front doors of the landing craft opening on the Normandy beaches, and all those inside being torn apart by bullets. It happens to one landing craft after another. Bankers, teachers, students, and farmers being ripped in pieces and their guts spilling out whilst they, still alive, call for help that cannot come. That is what happens when a machine gun opens up through the open door of a landing craft, or an armored personnel carrier, of a group sent to secure a tree line.
It is what a lot of politicians are calling for now.
People with shares in the arms industry become a little richer every time one of those shells is fired and has to be replaced. They gain financially, and often politically, from bodies being ripped open. This is what we call war. It is increasingly popular as a political strategy, though generally for others and the children of others.
Of course, the effects of war go beyond the dismembering and lonely death of many of those fighting. Massacres of civilians and rape of women can become common, as brutality enables humans to be seen as unwanted objects. If all this sounds abstract, apply it to your loved ones and think what that would mean.
I believe there can be just wars, and this is not a discussion about the evil of war, or who is right or wrong in current wars. Just a recognition that war is something worth avoiding, despite its apparent popularity amongst many leaders and our media.
The EU Reverses Its Focus
When the Brexit vote determined that Britain would leave the European Union (EU), I, like many, despaired. We should learn from history, and the EU’s existence had coincided with the longest period of peace between Western European States in well over 2,000 years.
Leaving the EU seemed to be risking this success. Surely, it is better to work together, to talk and cooperate with old enemies, in a constructive way? The media, and the political left, center, and much of the right seemed at that time, all of nine years ago, to agree. Or so the story went.
We now face a new reality as the EU leadership scrambles to justify continuing a war. Not only continuing, but they had been staunchly refusing to even countenance discussion on ending the killing. It has taken a new regime from across the ocean, a subject of European mockery, to do that.
In Europe, and in parts of American politics, something is going on that is very different from the question of whether current wars are just or unjust. It is an apparent belief that advocacy for continued war is virtuous. Talking to leaders of an opposing country in a war that is killing Europeans by the tens of thousands has been seen as traitorous. Those proposing to view the issues from both sides are somehow “far right.”
The EU, once intended as an instrument to end war, now has a European rearmament strategy. The irony seems lost on both its leaders and its media. Arguments such as “peace through strength” are pathetic when accompanied by censorship, propaganda, and a refusal to talk.
As US Vice-President JD Vance recently asked European leaders, what values are they actually defending?
Europe’s Need for Outside Help
A lack of experience of war does not seem sufficient to explain the current enthusiasm to continue them. Architects of WWII in Europe had certainly experienced the carnage of the First World War. Apart from the financial incentives that human slaughter can bring, there are also political ideologies that enable the mass death of others to be turned into an abstract and even positive idea.
Those dying must be seen to be from a different class, of different intelligence, or otherwise justifiable fodder to feed the cause of the Rules-Based Order or whatever other slogan can distinguish an ‘us’ from a ‘them’…While the current incarnation seems more of a class thing than a geographical or nationalistic one, European history is ripe with variations of both.
Europe appears to be back where it used to be, the aristocracy burning the serfs when not visiting each other’s clubs. Shallow thinking has the day, and the media have adapted themselves accordingly. Democracy means ensuring that only the right people get into power.
Dismembered European corpses and terrorized children are just part of maintaining this ideological purity. War is acceptable once more. Let’s hope such leaders and ideologies can be sidelined by those beyond Europe who are willing to give peace a chance.
There is no virtue in the promotion of mass death. Europe, with its leadership, will benefit from outside help and basic education. It would benefit even further from leadership that values the lives of its people.
Author
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