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
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
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