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Slaying the Censorship Leviathan
Our Missouri v. Biden court case exposes the government-led information war to censor what Americans think.
I published this article earlier this week in Tablet magazine, and am reprinting here with permission.
One year ago, I joined the states of Missouri and Louisiana and several other co-plaintiffs to file a suit in federal court challenging what journalist Michael Shellenberger has called the censorship-industrial complex. While much of the press cooperated with the state’s censorship efforts and has ignored our court battle, we expect that it will ultimately go to the Supreme Court, setting up Missouri v. Biden to be the most important free speech case of our generation—and arguably, of the past 50 years.
Prior government censorship cases typically involved a state actor unconstitutionally meddling with one publisher, one author, one or two books, a single article. But as we intend to prove in court, the federal government has censored hundreds of thousands of Americans, violating the law on tens of millions of occasions in the last several years. This unprecedented breach was made possible by the wholly novel reach and breadth of the new digital social media landscape.
My co-plaintiffs, Dr. Jay Bhattacharya and Dr. Martin Kulldorff, and I were censored for content related to COVID and public health policy that the government disfavored. Documents we have reviewed on discovery demonstrate that government censorship was far more wide-ranging than previously known, from election integrity and the Hunter Biden laptop story to gender ideology, abortion, monetary policy, the U.S. banking system, the war in Ukraine, the U.S. withdrawal from Afghanistan, and more. There is hardly a topic of recent public discussion and debate that the U.S. government has not targeted for censorship.
Jacob Seigel, Matt Taibbi, and other investigative reporters have begun to document the anatomy of the censorship leviathan, a tightly interconnected network of federal agencies and private entities receiving public funding—where much of the censorship grunt work is outsourced. The “industrial” in censorship-industrial complex should be understood literally: censorship is now a highly developed industry, complete with career-training institutions in higher education (like Stanford’s Internet Observatory or the University of Washington’s Center for an Informed Public), full-time job opportunities in industry and government (from the Virality Project and the Election Integrity Partnership to any number of federal agencies engaged in censorship), and insider jargon and euphemisms (like disinformation, misinformation, and “malinformation” which must be debunked and “prebunked”) to render the distasteful work of censorship more palatable to industry insiders.
Our lawyers were in court last week arguing for a preliminary injunction to halt the activities of the censorship machine while our case is tried. I will spare you a full account of the government’s endless procedural wrangling, obfuscation, attempts to hide, delays, and diversionary tactics in this case—futile efforts to dodge even the most legally straightforward aspects of discovery, such as our request to depose former Biden Press Secretary Jen Psaki. So far, the government has been caught hiding discovery materials, which the judge chastised them about before ruling against their motion to dismiss, reminding the government that the limited discovery so far would widen once the case went to trial.
The government’s lawyers were not able to block the deposition of Anthony Fauci, however, who had to answer some pointed questions about his COVID policies for the first time under the threat of the penalty of perjury. Dr. Fauci seemed to suffer from a strange syndrome of “sudden-onset amnesia” during his deposition, as I have described elsewhere.
Government censorship was far more wide-ranging than previously known.
But aside from these procedural scuffles, the more important aspects of this case are the government censorship activities we have already exposed. For example, our documents demonstrate how a relatively unknown agency within the Department of Homeland Security became the central clearinghouse of government-run information control—an Orwellian Ministry of Truth. My fellow citizens, meet the Cybersecurity Infrastructure Security Agency—better known as CISA—a government acronym with the same word in it twice in case you wondered about its mission. This agency was created in the waning days of the Obama administration, supposedly to protect our digital infrastructure against cyberattacks from computer viruses and nefarious foreign actors. But less than one year into their existence, CISA decided that their remit also should include protecting our “cognitive infrastructure” from various threats.
“Cognitive infrastructure” is the actual phrase used by current CISA head Jen Easterly, who formerly worked at Tailored Access Operations, a top secret cyber warfare unit at the National Security Agency. It refers to the thoughts inside your head, which is precisely what the government’s counter-disinformation apparatus, headed by people like Easterly, are attempting to control. Naturally, these thoughts need to be protected from bad ideas, such as any ideas that the people at CISA or their government partners do not like.
In early 2017, citing the threat from foreign disinformation, the Department of Homeland Security unilaterally declared federal control over the country’s election infrastructure, which had previously been administered at the local level. Not long after that, CISA, which is a subagency of the DHS, established its own authority over the cognitive infrastructure by becoming the central hub coordinating the government’s information control activities. This pattern was repeated in several other government agencies around the same time (there are currently a dozen federal agencies named among the defendants in our suit).
So, what exactly has the government been doing to protect our cognitive infrastructure? Perhaps the best way to wrap your head around the actual operations of the new American censorship leviathan is to consider the vivid analogy offered by our brilliant attorney, John Sauer, in the introduction of our brief for the injunction. This is worth quoting at length:
Suppose that the Trump White House, backed by Republicans controlling both Houses of Congress, publicly demanded that all libraries in the United States burn books criticizing the President, and the President made statements implying that the libraries would face ruinous legal consequences if they did not comply, while senior White House officials privately badgered the libraries for detailed lists and reports of such books that they had burned and the libraries, after months of such pressure, complied with those demands and burned the books.
Suppose that, after four years of pressure from senior congressional staffers in secret meetings threatening the libraries with adverse legislation if they did not cooperate, the FBI started sending all libraries in the United States detailed lists of the books the FBI wanted to burn, requesting that the libraries report back to the FBI by identifying the books that they burned, and the libraries complied by burning about half of those books.
Suppose that a federal national security agency teamed up with private research institutions, backed by enormous resources and federal funding, to establish a mass-surveillance and mass-censorship program that uses sophisticated techniques to review hundreds of millions of American citizens’ electronic communications in real time, and works closely with tech platforms to covertly censor millions of them.
The first two hypotheticals are directly analogous to the facts of this case. The third, meanwhile, is not a hypothetical at all; it is a description of the Election Integrity Partnership and Virality Project.
The censorship activities of the nation’s largest law enforcement agency, which it terms “information warfare,” have turned the FBI, in the words of whistleblower Steve Friend, into an “intelligence agency with law enforcement powers.” But there is no “information warfare” exception to the constitutional right of free speech. Which other federal agencies are involved in censorship? Besides the ones you might suspect—the DOJ, NIH, CDC, Surgeon General, and the State Department—our case has also uncovered censorship activities by the Department of the Treasury (don’t criticize the feds’ monetary policies), and yes, my friends, even the Census Bureau (don’t ask).
In prior precedent-setting cases on censorship, the Supreme Court clarified that the right of free speech guaranteed by the Constitution exists not just for the person speaking but for the listener as well: We all have the right to hear both sides of debated issues to make informed judgments. Thus all Americans have been harmed by the government’s censorship leviathan, not just those who happen to post opinions or share information on social media.
The judge presiding over the case, Terry Dougherty, asked on Friday in court if anyone had read George Orwell’s 1984 and whether they remembered the Ministry of Truth. “It’s relevant here,” he added. It is indeed time to slay the government’s censorship leviathan. I hope that our efforts in Missouri v. Biden prove to be a crucial first step in this project to restore our constitutional rights.
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