The federal government outdid itself yesterday. They actually applied to the Supreme Court of the United States for a stay of the Big Injunction against them. This, although the Fifth Circuit Court of Appeals already watered it down and enjoined only one thing: retaliating, or threatening to retaliate, against social media companies for not blocking speech the government does not like. Even Don Quixote, or the most wildly over-the-top producer of Kabuki Theater, could never have thought of this one.
The latest federal appeal
Vivek Murthy, Surgeon General of the United States, is, for reasons best known to the federal government, the lead applicant. He and various White House and CDC officials – and FBI Special Agent Elvis Chan and the replacement for Supervisor Laura Dehmlow – are asking the Supreme Court to stay the injunction, as currently modified, “pending the filing and disposition of [a] forthcoming petition for a writ of certiorari.” (Emphasis added.) Later in the application, the government says it will file that petition by October 13, 2023.The applicants include only those whose activities the Fifth Circuit Court of Appeals is still enjoining. They do not include those parties whom the Fifth Circuit let off the hook.
To support their application for a stay, the federal government, in the person of Surgeon General Murthy and Solicitor General Elizabeth Prelogar, denies having coerced or threatened anyone. Indeed they specifically say various social-media platforms let stand several pieces of “problematic” content without consequence. That’s a lie. Anyone who believes that, should consult the Twitter Files, especially those concerning the:
- Insertion into the highest echelon of Twitter (now X) of Jim Baker, ex-General Counsel of the FBI, the
- Activities of Jim Baker, including the attempt to suppress the Twitter Files when they first appeared, and above all, the
- Actions of the FBI, both at Twitter and at Facebook.
Same old, same old arguments
Beyond that, the federal government makes the same-old, same-old arguments that those who have suffered under social media censorship, lack standing. Both the U.S. District Court for the Western District of Louisiana (Monroe Division) and lately the Fifth Circuit Court of Appeals have explicitly upheld the standing of all plaintiffs. Furthermore, each court applies the One-plaintiff Rule: if any plaintiff has standing, the case must proceed. (See the docket pages for the case at the District Court level and at the Fifth Circuit level.)
But the standing arguments are merely tendentious. Surgeon General Murthy and his colleagues make a more egregious and dangerous argument for the continuance of their authority.
Of course respect for the freedom of speech does not mean saying the government should be absolutely silent. No one suggests that, whatever Solicitor General Prelogar says to the contrary. But the application seems to say that:
- Whatever the government says, is true, and that
- Whatever anyone else says to contradict what the government says, is false.
And that alone, Prelogar suggests, justifies the government’s special portals into social media platforms (as The Intercept revealed).
A brazen claim of federal authority
Prelogar cites some interesting authorities to justify the notion that the government has an unlimited brief against “misinformation and disinformation.” Most of these references go back before either the Trump Administration or the recent reversal-of-power in the House of Representatives at last Midterms. This archive of a press briefing by then-Press Secretary Jen Psaki should chill any reader to the bone. Consider this exchange between Psaki and NBC White House Correspondent Kristen Welker:
Q Facebook has decided to keep former President Trump off of its platform for now. Senator Ted Cruz tweeted the following: “For every liberal celebrating Trump’s social media ban, if the Big Tech oligarchs can muzzle the former President, what’s to stop them from silencing you?” What do you make of that comment? Does he have a point?
MS. PSAKI: Well, let me first say that this is an independent board’s decision, and we’re not going to have any comment on the future of the former President’s social media platform. That’s a decision that, it sounds like, the independent board punted back to Facebook to make in the next six months, as I know you all have reported.
The President’s view is that the major platforms have a responsibility related to the health and safety of all Americans to stop amplifying untrustworthy content, disinformation, and misinformation, especially related to COVID-19, vaccinations, and elections. And we’ve seen that over the past several months, broadly speaking. I’m not placing any blame on any individual or group; we’ve seen it from a number of sources.
He also supports better privacy protections and a robust anti-trust program. So his view is that there’s more that needs to be done to ensure that this type of misinformation; disinformation; damaging, sometimes life-threatening information is not going out to the American public.
Q You’re saying more that needs to be done. Are there any concerns though about First Amendment rights? And where does the White House draw the line on that?
MS. PSAKI: Well, look, I think we are, of course, a believer in First Amendment rights. I think what the decisions are that the social media platforms need to make is how they address the disinformation, misinformation — especially related to life-threatening issues like COVID-19 and vaccinations that are — continue to proliferate on their platforms.
Here, by the way, is Senator Cruz’ post:
And there you have it. Now consider this: General Prelogar quoted Jen Psaki’s explicit clarion call for censorship in her application. This is without a doubt the most brazen call for tyranny in history. CNAV would expect to read this in a book titled, say, Our Struggle. And remember: the German word for struggle is kampf.
Furthermore, so long as anyone is talking about Trump’s banishment from social media, consider how that came about. That rated a Twitter Files thread of its own. Did the government explicitly threaten Twitter, for example, if it did not ban Trump? Yes, they did!
The proper and improper remedy
If the government feels someone has lied about it or its programs, to the detriment of another, let the government prosecute, after the fact, for fraud. General Prelogar here argues for prior restraint. Prior restraint has never been permissible in our Constitutional system. New York Times Co.and Washington Post Co. v. The United States, 403 U.S. 713 (1971) – the Pentagon Papers Case. (Before anyone brings up the dissent by Chief Justice Warren Burger: he argued only against the haste of the decision. He did not argue that the government had made a good case to suppress those Papers; only that it never got a chance to make one.)
Let’s consider what the government considers “misinformation and disinformation.” True enough, no deliberation before any court is likely ever to get to those merits. But if they did, the obvious question arises: who’s lying? The government has consistently suppressed information that turned out to be true. This includes the danger and countereffectiveness of the COVID Vaccines, and the safety and efficacy of Ivermectin, hydroxychloroquine, etc. It also includes the wholesale violations of the Law of Averages in the Election of 2020 returns. (Indeed CNAV cannot say that on YouTube, and couldn’t say that on Twitter until Elon Musk bought it.) It includes the venal corruption of President Joe Biden and his family, especially his son Hunter. And it includes the false-flag pseudo-operation that was and is the January 6 Event.
Where does the case go from here?
The case does seem to be moving forward. Justice Samuel A. Alito, Jr., the supervising Justice for the Fifth Circuit, issued a one-week administrative stay. Tentatively it expires one minute before midnight Friday of next week.
Furthermore he gave the plaintiffs in Missouri v. Biden until Wednesday (September 20) at 4:00 p.m. EDT to respond. That response should be an eyeful, and CNAV eagerly awaits it. Of greatest interest will be their response to the outright lie that Facebook, Twitter, YouTube, et al. left flagged content up routinely and without consequence.
Appellate courts routinely stay decisions they end up upholding, probably as a courtesy to their minority members. So only the most die-hard apologists for this administration are reading (or should read) anything into Justice Alito’s administrative stay.
Still, this is extraordinary in and of itself: an interlocutory certiorari petition from an interlocutory appeal. And logically, one might expect the Supreme Court to consider itself with full authority to reinstate the original injunction. But they can only do that if the plaintiffs ask. Courts will never do anything for one who never asks. All the same, Surgeon General Murthy and other “clients” of Solicitor General Prelogar should be careful what they wish for. Justice Alito’s order clearly shows they’re going to get it – and they might not like it.
Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.
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