'Murthy v. Missouri' Censorship Case Reveals Some Important Truths

P. Gardner Goldsmith | March 20, 2024
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From the days prior to the 2016 US presidential election – including the federal funding of online forces to push the “Russian Collusion” canards -- to the suppression of info about the Hunter Biden laptop, to the suppression of valid information about COVID-19, about mRNA jabs, masking, and the inherently immoral and unconstitutional lockdown paradigms in general, we who fought in the proverbial trenches have seen the government-generated censorship complex grow like a cancer until we, many of our friends, many professional scientists and medical doctors, not only were removed from numerous social media sites, we were openly maligned by politicians and media, and our livelihoods were harmed.

Thus, we get the absolutely monumental takeaways from Oral Arguments in the “Murthy v. Missouri” lawsuit, heard Monday before the full Supreme Court of the United States (SCOTUS).

The case formerly was titled “Missouri v. Biden,” and the Independent Institute’s K. Lloyd Billingsley provides a good thumbnail of key plaintiffs and their struggle to take the battle for freedom this far. He observes that the arguments focused on Joe Biden’s Administration and his Surgeon General Vivek Murthy using coercion, enticement, and threats of antitrust suits against social media companies in order to see them remove what the feds characterized as “objectionable posts.”

“The attorneys general of Missouri and Louisiana, joined by doctors such as Jay Bhattacharya of Stanford, argue that the administration censored dissenting speech on COVID-19 and other policies by pressuring tech platforms to remove or restrict posts.

Consider this account from Martin Kulldorff, former professor of medicine at Harvard and co-author of the Great Barrington Declaration (GBR) with Dr. Bhattacharya and Oxford University’s Sunetra Gupta, a leading infectious-disease epidemiologist. The GBR, signed by thousands of medical scientists, advocated an approach to the pandemic similar to the one taken by Kulldorff’s native Sweden, which declined to shut down schools. 

Kulldorff recalls that although Sweden had the lowest excess mortality among major European countries and “despite being a Harvard professor, I was unable to publish my thoughts in American media. Twitter (now X) put me on the platform’s Trends Blacklist.” Twitter did the same to Dr. Bhattacharya.

‘Seeking to prop up Anthony Fauci and the lockdown policies he promoted in response to the COVID-19 pandemic,’ the plaintiffs explain, ‘Twitter (and other Big Tech companies) intentionally blacklisted, censored, suppressed, and targeted the GBD and its signers.’”

And these companies did so because they were pressured by the feds.

Here are the takeaways from Monday’s Oral Arguments.

First, there is the question of “standing” and “traceability” for the plaintiffs and the overall actions of the feds.

Lower courts numerous times found validity in the claims of Battacharya and others that their professional careers were harmed by the government employing its tactics to pressure social media to suppress his statements. Yet, one of the first oral arguments Biden’s “Principle Deputy Solicitor General” Brian Fletcher tried to employ was that the keywords and posts which the government told social media to target were generalized, not particularized, thus, he claimed, claims of specific, traceable damage were impossible.

This is, of course, not only a false statement (as revealed by the Twitter Files work of Matt Taibbi and others, emails exist showing agents of the US government literally pinpointing specific Twitter and Facebook posts that were “problematic” and also showed how intensely the feds engaged the social media workers to remove those posts) it takes a typical collectivist philosophical tack of suppressing recognition of the fact that INDIVIDUALS are what actually comprise the “group.” If a government pushes for suppression of posts that contain ideas the government doesn’t like, the algorithms employed will take down specific posts by specific people, who always will be at the receiving end of government-inspired policies. In other words, particularization is incorporated into any “generalized” prohibition of specific words or opinions, and that particularization is, axiomatically, going to harm specific people who are censored.

Standing out in the question-and-answers was Justice Samuel Alito, who cut through Fletcher’s attempt to cloud the issue of “standing.”

“The district court found that the injury was traceable to the government’s actions, and the Fifth Circuit accepted that finding.”

Amazingly, though Fletcher continued to claim that there was no “traceability,” he actually admitted that a broad injunction against people taking action would harm people, but he flipped the narrative, applying it to government employees, and claiming that the Fifth Circuit’s broad injunction against the government engaging in this censorship activity “is a real problem” – for the people in government.

“Having that sort of vague (generalized) injunction, with these contestable legal terms, that have been interpreted very broadly as applied to past conduct, hanging over the heads of all of these government officials doing all of these things is a real problem.”

In other words, he objects to the broad injunction stopping these “officials,” but argues that the Biden Administration telling social media to broadly censor certain messages does not bring specific harm to people trying to post those kinds of messages.

Related: Civil Rights Defenders Sue, Claim Biden Admin Pushed Big Tech Censorship | MRCTV

Again, this is mentioned merely to expose the utter, towering hypocrisy of the censor-pushers like Fletcher, and I would like to reiterate that there are plenty of specific examples of particular posts that the Bidenistas targeted and examples of literal threats Biden himself made against social media companies.

In fact, as I noted for MRCTV in March of 2022, Joe Biden actually threatened to take “antitrust action” against social media companies if they did not comply with Administration orders to censor people.

And Alito noted:

“Mr. Fletcher, when I read all of the emails, exchanged between the White House and other federal officials and Facebook in particular, but also some of the other platforms, and I see that the White House and federal officials are repeatedly saying that Facebook and the federal government should be partners, ‘We’re on the same team…’ Officials are demanding answers, ‘I want an answer, I want it right away,’ when they’re unhappy they, they curse them out…”

Then he said: “I cannot imagine federal officials taking that approach to the print media.”

And he hit on the threat of antitrust and the other key issue we at MRCTV have been citing to people as the government’s big weapon in its FCC-backed control of the web: Section 230 of the 1996 Telecommunications Act.

“And so I thought, you know the only reason why this is taking place is because the federal government has got Section 230 and antitrust in its pocket, and, to mix my metaphors, it’s got these big clubs available…”

Precisely. This is what it’s all about.

As I have written for MRCTV, Section 230 of the 1996 Telecommunications Decency Act shields online hosts from being called “publishers” and being targets of state-level action concerning things like posts that might contain child pornography, threats, and depictions of violence. The section also shields the tech “hosts” from civil liability suits for defamation.

The key is that the section DOES allow hosts to eliminate posts and to still be called “platforms” rather than “publishers,” AS LONG AS the hosts do so “in good faith” – and “good faith” is, of course, determined by the FCC.

If the FCC doesn’t think you operated “in good faith” they can go after you, and so can state governments.

Thus, hanging over the heads of the social media owners is the danger that the Biden Administration, which has appointed the majority on the FCC board, will target them if they do not comply with the Bidenista censorship demands.

It’s obvious, it’s what free speech advocates have warned was a big problem, and it’s also part of the inherent threat the unconstitutional FCC represents to broadcasters of television and radio when the FCC claims the power “license” radio and TV and claims the power to revoke said licenses.

It is an impossible and useless exercise to argue that such attacks on the right to speak are, in any way, consistent with the First Amendment.

But some people could care less about the First Amendment.

Not only does Mr. Fletcher exhibit contempt for it, but one of the big takeaways from the Oral Arguments in “Murthy” was the threat to freedom posed by Justice Ketanji Brown Jackson, who revealed her belief that the strict wording of the First Amendment is unimportant, her belief that the right to freedom of speech is not really a right, and that the government can define for itself that there is a “compelling state interest” in breaching individual speech rights anytime the government wants to claim it’s “compelling” interest to do so.

As Glenn Greenwald observed on his System Update show’s X handle:

“KBJ doubles down: ‘My biggest concern is that your view has the First Amendment hamstringing the government in significant ways.’ That is, quite literally, the entire point of the First Amendment—of the entire Bill of Rights.”

Precisely.

On this and many of the more manifestly obvious levels, the “Murthy” Oral Arguments presented stunning revelations.

The SCOTUS ruling likely will present even more.

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