While most of the focus on Capitol Hill Wednesday was on Special Counsel John Durham’s testimony before the House Judiciary Committee, the Select Subcommittee on the Coronavirus Pandemic was holding its own hearing titled “Churches vs. Casinos: The Constitution is not Suspended in Times of Crisis.” Witnesses included Missouri Attorney General Andrew Bailey, Louisiana Solicitor General Elizabeth Murrill, former Wisconsin Solicitor General Misha Tseytlin, and (minority witness) University of Virginia Law Professor Micah Schwartzman.
The full hearing can be viewed below, but AG Bailey’s opening remarks were particularly impactful.
Bailey began his remarks by laying out the broad framework of Missouri v. Biden, the lawsuit brought by the states of Missouri and Louisiana against the federal government over First Amendment violations.
Thank you for the opportunity to appear before you here this morning. In May of last year, Missouri partnered with the state of Louisiana and private plaintiffs to file a landmark lawsuit against dozens of officials in the federal government to stop the biggest violation of the First Amendment in this nation’s history. My office obtained more than 20,000 pages of evidence detailing extraordinary censorship efforts by a variety of officials within the federal government. My office also deposed key witnesses, including Dr. Anthony Fauci and officials from the FBI, State Department, Department of Homeland Security, Office of the Surgeon General, and the CDC. The evidence that we’ve uncovered only begins to scratch the service of these First Amendment violations.
Ultimately, the lawsuit is about obtaining truth and accountability. Last month, a federal judge heard oral argument on a motion for preliminary injunction filed by plaintiffs in this case. The judge expressed skepticism over many of the federal government’s responses to queries posed by the court, even likening the situation to George Orwell’s novel, “1984.” Concerns have been noted by the United States Supreme Court. Justice Gorsuch recently opined that federal officials may have pressured social media companies to suppress information about the pandemic policies with which they disagreed. The 20,000-plus pages of documents my office has uncovered reveal that Justice Gorsuch’s suspicions are, in fact, a sobering reality.
He then gives an overview of the government’s methods of suppressing speech and its attempts to circumvent the First Amendment by outsourcing censorship activities to non-governmental actors.
The government’s strategy to suppress speech in violation of the First Amendment is threefold: First, officials attempt to harm Big Tech companies by threatening to remove their legal protections or by issuing statements deeply harmful to the companies’ public image. Second, backed by previous threats, officials communicate behind doors with tech, flagging specific speech that officials dislike and badgering the companies to suppress that speech. Third, once officials have threatened tech companies and flagged specific content, the implicit promise arrives: If tech companies censor when asked, the government will back down from their public statements to harm the companies. As former White House Press Secretary Jen Psaki has boasted from the White House podium, “They certainly understand what our asks are.”
And the censorship activities have grown so widespread that the Department of Homeland Security last year worked to create a Disinformation Governance Board to coordinate efforts to censor between government agencies. Following these efforts, the court has characterized DHS as the nerve center of a federally directed censorship enterprise, as we saw in coordination between officials at DHS and the FBI and their attempt to silence the Hunter Biden laptop story in the weeks leading up to the 2020 election. Big Tech companies have shown themselves eager to censor in recent years. It is also clear from the evidence that much of the speech affected would not have been removed but for the government’s express involvement.
The judicially misconstrued Section 230 of the Communications Decency Act has made it much easier for the government to create its vast censorship network by granting certain companies far more protection than Congress ever contemplated. The incorrectly interpreted Section 230 has enabled social media companies to consolidate control into the hands of a few enormously powerful actors. This consolidation reduces the pressure not to censor that would otherwise exist in a competitive market while also making it much easier for federal officials to exercise pressure over the social media field. The federal government itself recognizes the legal problems with its actions. In an attempt to make it harder to detect their blatant legal violations, officials have begun outsourcing their censorship activities to pseudo-private organizations. Emails obtained reveal that officials believe this structure will help them evade liability under the First Amendment, but any federal attempt to censor speech is still unconstitutional. The government cannot do by indirect means what it would be prohibited from doing directly.
Notably, the censorship activities are almost exclusively directed at conservative content — by the Biden administration’s own admission.
The evidence also shows the federal censorship enterprise targets conservative voices. Last month, Biden’s lawyers conceded in open court nearly all content suppressed by the federal government is conservative. This is not about truth — it’s always been about power. Perhaps most troubling: Biden’s lawyers recently shared with the judge that they have no plans to discontinue their censorship network. That admission makes this case one of the most important First Amendment cases in our nation’s history.
Bailey closes out his remarks by emphasizing the importance of the First Amendment and free speech and the critical role the lawsuit holds in protecting against the government’s violation of those sacrosanct principles.
The freedom of speech enshrined in the First Amendment is the bedrock of this great nation — it’s one of the fundamental rights guaranteed to all Americans. With this lawsuit, we’re fighting to protect our liberties from all government interference. No government official has the right to tell us what to think, what to say, or what to hear. That’s why this case is so important: The question of our time is whether Americans will enjoy the legacy of free speech, handed down to us by the founding generation, or whether government will control what we say, what we hear, and how we debate the veracity of claims and arguments. We are locked in a pitched battle for the very character of our nation. If we do not prevail over the government officials who seek to control speech, millions of Americans will be left with with what Justice Gorsuch described as a shell of a democracy, with civil liberties just as hollow. Thank you.
During the questioning, Committee Chair Brad Wenstrup (R-OH) asked Bailey if the Biden White House attempted to strongarm Big Tech companies to censor free speech. Bailey responded:
Unequivocally, yes. It’s in times of national emergency when we must be most vigilant to protect our fundamental rights, the rights given to us by God and codified and enshrined in the United States Constitution. And, contrary to that principle, the Biden coerced and colluded with Big Tech social media to silence American voices in relation to the pandemic.
Asked by Rep. Debbie Lesko (R-AZ) whether he thought that coordination between the White House and social media were unverified allegations (as asserted by the minority witness), Bailey stated:
Absolutely not. The emails that you’re describing are the tip of the iceberg that establish not only coordination but coercion and collusion — from the very top of the White House, across a spectrum of federal bureaucratic agencies, to establish a vast censorship enterprise that has gone beyong COVID — COVID was the Trojan Horse; that’s the excuse to get the enemy behind the wall. And it’s now spreading. This time and the nature of these violations call for the necessity of a wall of separation to be erected between Tech and State in order to preserve our First Amendment right to free, fair, and open debate.
Oversight Committee Chair James Comer (R-KY) asked Bailey whether he believed the CDC and other government officials agencies worked with big tech to censor dissent about COVID vaccines. Bailey answered affirmatively: “Absolutely.” Comer followed up by asking if the government entities recommended censoring posts suggesting vaccines prevent the spread of COVID-19. Bailey’s response:
There was an active suppression campaign, as detailed in email exchanges between, at a minimum, the White House and Big Tech social media corporations from March to May of 2021, as recited by one of the other members…and as evidenced in our suit, that demonstrate that the target of the suppression was anyone that questioned the effectiveness of the vaccine.
Comer asked if the recommendations included individuals who expressed public dissent about the vaccines. Bailey again confirmed this was the case. Comer also asked if Bailey believed the government entities worked with private companies to censor information about the origin of COVID-19 and whether it came from a lab. Bailey again confirmed this was the case, at which point Comer wryly observed: “Funny that you can answer my question, but Director Walensky cannot” (referencing their exchange during her testimony before the subcommittee earlier in June).
Comer then asked Bailey if he believes it is constitutionally defensible for the White House to collude with social media companies to censor opposing scientific viewpoints, to which Bailey replied, “No, that’s targeted censorship by the government of core, protected political speech.” Asked if he believed the Biden administration violated the First Amendment, Bailey affirmed: “Unequivocally, yes.”
Finally, Comer shared his observations of how the administration responded throughout the pandemic to various debates surrounding the virus and mitigation efforts, asking Bailey if he agreed that the government censored Americans because they did not like what they were saying. Bailey affirmed that he did, noting:
Yes, and I believe that in Dr. Anthony Fauci’s deposition, he accurately characterized the President’s position on this matter and his administration’s position on this matter. Dr. Fauci could be characterized in his deposition as saying that if he disagrees with it — if he doesn’t believe it to be true — then Americans shouldn’t have free, fair, and open debate on that topic. And it’s a scary world if the government gets to determine what is true rather than the citizens debating those topics and coming to the veracity of the claims on their own, through free, fair, and open debate.
Dr. Richard McCormick (R-GA), who recounted his own experience with censorship for expressing opposing viewpoints during the pandemic, asked Bailey his thoughts on the constitutionality of the government’s actions vis-a-vis Big Tech. Said Bailey:
First, let me say that there are numerous examples where President Biden himself, Vice President Kamala Harris, other officials with the White House, including former Press Secretary Jen Psaki, have explicitly called for the repeal of Section 230 of the Communications Decency Act — which is a boon to social media corporations, an enormous financial benefit to these corporations — if the corporations don’t enhance their censorship policies. Then agents acting on behalf of the federal government go to social media, make more specific, targeted requests of censorship. It is a relationship of coercion and collusion. It’s not Big Tech acting on their own — that would be bad enough. But in this instance, as we’ve demonstrated through more than 1400 numbered paragraphs of specific allegations backed up by evidence and documents that are available in our lawsuit, it’s targeted, it’s specific, and it’s at the behest of the federal government. And as Rob Flaherty, the Director of Digital Communications at the White House opined, it goes all the way to the very top of the White House. It’s grown so far that they need to establish additional bureaucratic structure to manage it.
But the remedy for disfavored speech in this nation has always been counter-speech, as you point out, not government censorship. In fact, government censorship is counterproductive to the public’s pursuit of truth. The founders knew that that’s why they included it as the very first amendment in the United States Constitution. And I would also point out, as I’ve stated, that it’s in times of crisis and emergency when we must be most vigilant in protecting those sacred and foundational rights.
McCormick then asked Bailey to elaborate on the constitutionality of mask mandates. Bailey responded:
Free speech is about not only speaking, but acting a certain way, as well, and we’ve got to be vigilant in protecting that. And when we see forced mask mandates that aren’t backed up by science or evidence, when we see the suppression of conversations about the effectiveness of masks, those undermine the rule of law, and they reduce the credibility of the outcome of the conversation because it’s an unfair debate; it’s a one-sided debate. And when the government uses its heavy hand to suppress that speech, people cease to trust the outcomes, and it undermines the rule of law and faith and confidence in the government.
Throughout his testimony, Attorney General Bailey steadfastly condemned the government’s efforts to censor its citizens while championing the principles of free speech and free, fair, and open debate.
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