Discover more from Human Flourishing
The Revenge of the Praetorian Guard
Interviews and commentary on developments in Missouri v. Biden, the censorship-industrial complex, the Administration's appeal of the injunction, and what comes next.
Two days after the federal court in Missouri v. Biden granted our request for a preliminary injunction against the government’s censorship regime, the Biden administration appealed the injunction to the Fifth Circuit and requested a stay against the injunction, thereby doubling down on their defense of government censorship. We then filed a response to the government’s request for appeal and stay. The appellate court will rule on this appeal, hopefully in a matter of weeks. After that, the case will proceed to trial—even if the appeal strikes down the injunction, which I think is unlikely.
For a summary of the case and these latest developments, watch this conversation with my friend, Dr. Peter McCullough, over at Courageous Discourse:
I did another recent interview with Charise Trump (no relation to Donald) on Speech First’s “Well Said” podcast about the Censorship Industrial Complex and our efforts to dismantle it (you can also listen to this one on Apple and Spotify):
The day after the preliminary injunction was granted, law professors Leah Litman and Lawrence Tribe published an article in Slate slamming the court’s ruling. Framing the case in entirely partisan terms, Litman and Tribe’s analysis betrayed an inadequate understanding of the First Amendment free speech guarantees and established limits on government power. I will publish a response to this diatribe later this week, but for now I’m including here a terrific editorial from the Brownstone Institute on the debate. Enjoy!
The Revenge of the Praetorian Guard
There was no censorship, but it’s good that they censored misinformation.
Defenders of the Covid regime have adopted this Doublethink in response to Judge Terry Doughty’s recent injunction against the government’s collusion with Big Tech. As Orwell describes in 1984, they “hold simultaneously two opinions which cancel out, knowing them to be contradictory and believing in both of them.”
Consider the language of the Biden administration’s call for an “emergency stay” of the injunction from Missouri v. Biden that stops the government from telling social media companies what they should and should not allow their users to post. The appeal says government is not censoring but must have the power to continue “working with social media companies on initiatives to prevent grave harm to the American people and our democratic processes.”
Grave harm…from free speech!
Harvard Law Professor Larry Tribe exemplifies this authoritarian advocacy. For decades, Tribe built a reputation as a legal scholar. He authored the country’s leading constitutional law treatise, advised presidents, and appeared on television as a legal commentator.
But age has a way of eroding veneers. Tribe is a defender of a political regime, a member of a Praetorian Guard comfortable with abolishing constitutional liberties when it advances his political preferences.
In the last three years, Tribe has argued that Russian President Vladimir Putin rigged the 2016 presidential election for “Thief in Chief, Donald Trump,” led the Justice Department to argue that the CDC eviction moratorium was constitutional, and successfully lobbied President Biden to unilaterally cancel student loans.
If he were on the other side of the aisle, Mr. Tribe might be accused of spreading misinformation and unconstitutional theories that threatened our democracy. Instead, he continues to serve as a mouthpiece for the country’s most powerful forces.
On Wednesday, Tribe co-authored an article with Michigan Law Professor Leah Litman attacking Judge Doughty’s injunction against the federal government’s collusive censorship of its political opponents. Their argument is notable for its false assertions of fact and improper implications of law. They remain obtuse to the allegations in the case, the principles of the First Amendment, and the historical ploys to overturn civil liberties. All the while, they maintain a posture of moral superiority that the Biden White House has mimicked.
A “Thoroughly Debunked Conspiracy Theory”
The professors begin their article with a false premise: “The impetus behind the case is the now thoroughly debunked conspiracy theory that the government is somehow strong-arming Big Tech into censoring conservative speech and speakers in violation of the First Amendment.”
They don’t offer an explanation for this description. They fail to address the documented censorship of Alex Berenson, Jay Bhattacharya, the Great Barrington Declaration, Robert F. Kennedy, Jr., and others. There is no mention of Facebook banning users who promoted the lab-leak hypothesis after working with the CDC, the Biden Administration’s public campaign urging social media companies to censor dissent in July 2021, or the Twitter Files’ documentation of the US Security State’s influence on Big Tech.
Instead, Tribe and Litman dismiss censorship as a thoroughly debunked conspiracy theory. They didn’t need to look far for examples – the opinion documents multiple instances of the coordination between Big Tech and the Biden White House in silencing opposition.
“Are you guys fucking serious?” White House Advisor Rob Flaherty asked Facebook after the company failed to censor critics of the Covid vaccine. “I want an answer on what happened here and I want it today.”
At other times, Flaherty was more direct. “Please remove this account immediately,” he told Twitter about a Biden family parody account. The company compiled within an hour.
His boss demanded Twitter remove posts from Robert F. Kennedy, Jr., writing: “Hey Folks-Wanted to flag the below tweet and am wondering if we can get moving on the process of having it removed ASAP.”
There are too many incidents to list, but it is clear that censorship was more than a thoroughly debunked conspiracy theory. Either Tribe did not read the decision, or his ideology blinded him from reality.
“A cesspool of disinformation”
The professors’ debunked conspiracy theory premise contradicts their position later in the article.
Like many of their peers, Tribe and Litman hold an incompatible set of views: on one hand, they argue that allegations of censorship are illusory. At the same time, they argue that the government is justified in suppressing speech because of the dangers of “disinformation.”
Censorship doesn’t exist, but it’s good that it does.
They write that the ruling incorrectly defends Americans’ right of “existing in a cesspool of disinformation about election denialism and COVID.” They hold that this is an incorrect application of the First Amendment. The natural corollary to their argument would be that the government is justified in censoring “disinformation.”
But the First Amendment does not discriminate against false ideas. Labeling speech “disinformation” or smearing it with associations about “election denialism” does not take away its constitutional protections.
“Under the First Amendment there is no such thing as a false idea,” the Supreme Court held in Gertz v. Welch. “However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas.” Tribe and Litman wouldn’t defer to the conscience of judges and juries – they would leave corrections to unelected White House bureaucrats.
“Some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation,” the Court held in United States v. Alvarez. The Framers knew the dangers of central government acting as arbiters of truth, so they banned that form of informational totalitarianism. Now, Tribe and Litman advocate to overturn that system of liberty.
It “will make us less secure as a nation and will endanger us all every day”
The professors resort to the familiar campaign of conflating dissent with danger. Justice Oliver Wendell Holmes compared handing out leaflets opposing World War I to “shouting fire in a crowded theater.” The Bush Administration eroded civil liberties in the War on Terror through the false dichotomy: “Either you are with us or you are with the terrorists.” Now, Tribe resorts to national security hysteria in defending the assault on the First Amendment. “If left standing,” he writes, the injunction “will make us less secure as a nation and will endanger us all every day.”
The professors explicitly accuse Judge Doughty of endangering Americans. So what does the judgment demand that calls for this accusation? Judge Doughty’s order prohibits government actors from communicating with social media companies to censor “content containing protected free speech.” The Biden Administration can denounce journalists, give its own press briefings, and take advantage of the friendly media environment; it just can’t encourage private companies to censor constitutionally protected speech.
“It is also axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish,” the Court held in Norwood v. Harrison. Judge Doughty applied that axiom to the digital age, and defenders of the regime have accused him of assaulting the republic.
The Biden Administration has adopted the same view as Tribe, writing in its appeal that the injunction hinders its ability to pursue “initiatives to prevent grave harm to the American people and our democratic processes.” Again, the language mimics Orwell’s description of Doublethink: “to believe that democracy was impossible and that the Party was the guardian of democracy.”
The appeal rests on the argument that the “immediate and ongoing harms to the Government outweigh any risk of injury to Plaintiffs.” Considering what Judge Doughty’s order prohibits, the Biden Administration is saying that the inability to work with social media companies to censor “content containing protected free speech” creates “immediate and ongoing harms” that outweigh Americans’ First Amendment liberties.
The Praetorian Guard
In sum, Tribe and Litman’s arguments are divorced from the facts of the case and the protections of the First Amendment. Their work is not legal scholarship; it is a defense of the regime. They advance unconstitutional agendas to pursue their political interests. More alarmingly, the White House has adopted their point of view.
Tribe is familiar with this tactic. He has promoted clearly unconstitutional programs related to the debt ceiling, student loans, and COVID because he agrees with their progressive aims. President Biden has enjoyed and followed Tribe’s advice in each initiative.
Tribe is not unfamiliar with the ramifications of censorship. “It would be a mistake to leave judgments about the ‘proper’ distribution of speech to politicians. Arming them with a roving license to level the playing field by silencing or adjusting the volume of disfavored speakers is an invitation to self-serving behavior and, ultimately, tyranny,” he wrote eight years ago. Now it is clear that he accepts, perhaps demands, tyranny provided it advances his political beliefs.
Maybe the tyrannical impulse is benign – Tribe may think abolishing the country’s constitutional guardrails would be best for the nation. The law, however, does not have a carve out for claims of moral pursuit.
In Robert Bolt’s A Man for All Seasons, Thomas More asks his son-in-law, William Roper, if he would give the Devil the protection of the law. Roper responds that he’d “cut down every law in England” to get to the Devil.
“Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat?” More asks. “This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down… do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”
Tribe and the Biden Administration may think that they have a divine mission in censoring alleged misinformation, that the Devil’s reincarnation has taken multiple forms in the bodies of Tucker Carlson, RFK Jr., Alex Berenson, and Jay Bhattacharya. Woodrow Wilson had a devout certainty in his persecution of dissidents, as did George Bush in his War on Terror. The self-professed nobility of their missions, however, does not excuse violations of Constitutional rights.
None of us ever wanted to live in a country in which the ruling regime openly expresses opposition to core constitutional rights that many generations of Americans thought were guaranteed by law. The injunction of Missouri v. Biden does nothing other than remind the government of those rights. And this is precisely why the Biden administration so strongly objects.