The U.S. Government’s Vast New Privatized Censorship Regime
Fauci, Jean-Pierre, and Facebook execs get asked pointed questions about alleged censorship. Our attorney, Jenin Younes, explains how public-private collusion and censorship violates the Constitution.
Senators and journalists are now asking pointed questions of the defendants in our Missouri v. Biden free speech lawsuit, regarding alleged public-private collusion and censorship. This seven-minute clip of Senator Josh Hawley’s questioning of a Facebook executive is certainly worth watching…
Here’s another recent video clip of White House Press Secretary Karine Jean-Pierre stammering a refusal to answer a question about the Biden administration’s alleged collusion with Big Tech to censor Americans. Correspondent Edward Lawrence asked Jean-Pierre on Sept. 2: “On social media companies, did the administration give Twitter and Facebook talking points over flagging what the president describes as misinformation?” Jean-Pierre asked Lawrence to repeat his question, which he did, adding, “How much coordination is there between the administration and social media companies?”
Jean-Pierre then stammered, “So, I–I–I don’t have anything to–to share with you on that, and I’m not going to comment on–on that right at this time.” Lawrence followed up with, “Because the Attorney Generals from Missouri and Louisiana said there’s a vast censorship enterprise across a multitude of federal agencies.” Again, she refused to comment.
Similarly, on September 14, Anthony Fauci was questioned regarding our lawsuit’s allegations during a Senate hearing in Washington. Zachary Stieber at the Epoch Times reported:
[Senator] Braun asked Fauci in this week’s hearing whether there were any discussions with any social media company employees about the origins of COVID-19.
“No, to my knowledge there was not,” Fauci said.
“I want to make sure I get correct your question. If the question is do we influencing [sic] social media in any way, the answer is categorically no,” Fauci added.
A plaintiff in the case disagreed, citing the voluminous documents produced in the first tranche of discovery.
“The evidence already uncovered on discovery in our case suggests that Dr. Fauci’s statement is grossly inaccurate, and that he knows it to be inaccurate but is saying it regardless to the United States Senate,” Dr. Aaron Kheriaty, chief of medical ethics at The Unity Project, told The Epoch Times via email.
Finally, our attorney, Jenin Younes of the New Civil Liberties Alliance, published a terrific piece today in Tablet magazine explaining the key issues at stake in our lawsuit against the Biden Administration. The article opens with an account of the government’s attempt to censor information regarding the Great Barrington Declaration’s focused protection proposal, and indeed mount a campaign of targeted slander slander against the statement’s authors, including two of my co-plaintiff’s in our lawsuit.
Younes then explains some recent legal developments:
Federal district courts have recently dismissed similar cases on the grounds that the plaintiffs could not prove state action. According to those judges, public admissions by then-White House press secretary Jennifer Psaki that the Biden administration was ordering social media companies to censor certain posts, as well as statements from Psaki, President Biden, Surgeon General Vivek Murthy, and DHS Secretary Alejandro Mayorkas threatening them with regulatory or other legal action if they declined to do so, still did not suffice to establish that the plaintiffs were censored on social media due to government action. Put another way, the judges declined to take the government at its word. But the Missouri judge reached a different conclusion, determining there was enough evidence in the record to infer that the government was involved in social media censorship, granting the plaintiffs’ request for discovery at the preliminary injunction stage.
The Missouri documents, along with some obtained through discovery in Berenson v. Twitter and a FOIA request by America First Legal, expose the extent of the administration’s appropriation of big tech to effect a vast and unprecedented regime of viewpoint-based censorship on the information that most Americans see, hear and otherwise consume. At least 11 federal agencies, and around 80 government officials, have been explicitly directing social media companies to take down posts and remove certain accounts that violate the government’s own preferences and guidelines for coverage on topics ranging from COVID restrictions, to the 2020 election, to the Hunter Biden laptop scandal.
She then cites several examples of censorship via government/big tech collusion uncovered in the documents obtained so far on discovery, including the following:
Correspondence publicized in Missouri further corroborates the theory that the companies dramatically increased censorship under duress from the government, strengthening the First Amendment claim. For example, shortly after President Biden asserted in July of 2021 that Facebook (Meta) was “killing people” by permitting “misinformation” about COVID vaccines to percolate, an executive from the company contacted the surgeon general to appease the White House. In a text message to Murthy, the executive acknowledged that the “FB team” was “feeling a little aggrieved” as “it’s not great to be accused of killing people,” while he sought to “de-escalate and work together collaboratively.” These are not the words of a person who is acting freely; to the contrary, they denote the mindset of someone who considers himself subordinate to, and subject to punishment by, a superior. Another text, exchanged between Jen Easterly, director of the Cybersecurity and Infrastructure Security Agency (CISA), and another CISA employee who now works at Microsoft, reads: “Platforms have got to get more comfortable with gov’t. It’s really interesting how hesitant they remain.” This is another incontrovertible piece of evidence that social media companies are censoring content under duress from the government, and not due to their directors’ own ideas of the corporate or common good.
Further, emails expressly establish that the social media companies intensified censorship efforts and removed particular individuals from their platforms in response to the government’s demands. Just a week after President Biden accused social media companies of “killing people,” the Meta executive mentioned above wrote the surgeon general an email telling him, “I wanted to make sure you saw the steps we took just this past week to adjust policies on what we are removing with respect to misinformation, as well as steps taken further to address the ‘disinfo dozen’: we removed 17 additional Pages, Groups, and Instagram accounts tied to [them].” About a month later, the same executive informed Murthy that Meta intended to expand its COVID policies to “further reduce the spread of potentially harmful content” and that the company was “increasing the strength of our demotions for COVID and vaccine-related content.”
She then digs into some of the legal background and relevant constitutional jurisprudence, which clearly establishes that this kind of collusion and government pressure violates citizens’ and private entities’ constitutional rights:
In 1963, the Supreme Court, deciding Bantam Books v. Sullivan, held that “public officers’ thinly veiled threats to institute criminal proceedings against” booksellers who carried materials containing obscenity could constitute a First Amendment violation. The same reasoning should apply to the Biden administration campaign to pressure tech companies into enforcing its preferred viewpoints.
The question of how the Biden administration has succeeded in jawboning big tech into observing its strictures is not particularly difficult to answer. Tech companies, many of which hold monopoly positions in their markets, have long feared and resisted government regulation. Unquestionably—and as explicitly revealed by the text message exchanged between Murthy and the Twitter executive—the prospect of being held liable for COVID deaths is an alarming one. Just like the booksellers in Bantam, social media platforms undoubtedly “do not lightly disregard” such possible consequences, as Twitter’s use of the term “mercifully” indicates.
And then there are the consequent downstream adverse effects of this kind of censorship—not only on those who are directly censored but on other users of the platform who self-censor to avoid similar punishments. Most concerningly, readers are deprived of access to contrasting information or open debate from which to inform their viewpoints, leading to the false impression of a scientific “consensus” when no such consensus exists:
The government’s involvement in censorship of specific perspectives, and direct role in escalating such censorship, has what is known in First Amendment law as a chilling effect: Fearing the repercussions of articulating certain views, people self-censor by avoiding controversial topics. Countless Americans, including the Missouri plaintiffs, have attested that they do exactly that for fear of losing influential and sometimes lucrative social media accounts, which can contain and convey significant social and intellectual capital.
Moreover, the Supreme Court recognizes that a corollary of the First Amendment right to speak is the right to receive information because “the right to receive ideas follows ineluctably from the sender’s First Amendment right to send them.” All Americans have been deprived—by the United States government—of their First Amendment rights to hear the views of Alex Berenson, as well as Drs. Bhattacharya and Kulldorff, and myriad additional people, like the reporters who broke the Hunter Biden laptop story for the New York Post and found themselves denounced as agents of Russian disinformation, who have been censored by social media platforms at the urging of the U.S. government. That deprivation strangled public debate on multiple issues of undeniably public importance. It allowed Fauci, Collins, and various other government actors and agencies, to mislead the public into believing there was ever a scientific consensus on lockdowns, mask mandates, and vaccine mandates. It also arguably influenced the 2020 election.
And finally, she addresses the issue that has been a central theme in my writings this year—the misuse of emergency provisions and public safety or “biosecurity” arguments to do an end-run around legal, constitutional, and ethical norms. This is an issue, it turns out, that the Supreme Court has previously addressed in relation to First Amendment rights:
The administration has achieved public acquiescence to its censorship activities by convincing many Americans that the dissemination of “misinformation” and “disinformation” on social media presents a grave threat to public safety and even national security. Over half a century ago, in his notorious concurrence in New York Times v. United States (in which the Nixon administration sought to prevent the newspaper from printing the Pentagon Papers) Justice Hugo Black rejected the view that the government may invoke such concepts to override the First Amendment: “[t]he word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment,” he wrote. Justice Black cited a 1937 opinion by Justice Charles Hughes explaining that this approach was woefully misguided: “The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press, and free assembly ... that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.”
She concludes by framing the importance of this case not just for free debate on public health issues, but for upholding our constitutional democratic norms on all issues of public importance:
Indeed, this case could not illustrate more clearly the First Amendment’s chief purpose, and why the framers of the Constitution did not create an exception for “misinformation.” Government actors are just as prone to bias, hubris, and error as the rest of us. Drs. Fauci and Collins, enamored of newfound fame and basking in self-righteousness, took it upon themselves to suppress debate about the most important subject of the day.
You can read the entire article here. We are still awaiting the communications and documents of Fauci and Jean-Pierre, which the judge recently ordered to be released:
Stay tuned for continued updates. And in the meantime, try to notice when you find yourself self-censoring on social media, and imagine what it would be like to have a digital public square in which that was no longer necessary.