TGIF: How the State Violated Free Speech during the Pandemic

Is anyone shocked by this observation?

Public statements, emails, and recent publicly released documents establish that the President of the United States and other senior officials in the Biden Administration violated the First Amendment by directing social-media companies to censor viewpoints that conflict with the government’s messaging on Covid-19....

This insidious censorship was the direct result of the federal government’s ongoing campaign to silence those who voice perspectives that deviate from those of the Biden Administration. Government officials’ public threats to punish social media companies that did not do their bidding demonstrate this linkage, as do emails from the Centers for Disease Control and Prevention (CDC) and the Department of Homeland Security (DHS) to social media companies that only recently were made public.

So states the New Civil Liberties Alliance (NCLA) in announcing its lawsuit against President Joe Biden, former chief medical adviser Anthony Fauci, and other government public-health officials,  departments, and spokesmen. The case now before a federal district court in Louisiana is called State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al. No social-media company was named as a defendant. Rather, the suit is about the government's illegal and unconstitutional conduct. (See the complaint for the eye-opening details.) In fact, the complaint states: "Notably ... prior to Defendants’ campaign of threats and pressure, social-media platforms generally declined to engage in the acts of censorship alleged herein." 

The plaintiffs are the states of Missouri and Louisiana and several health care experts, including Dr. Jay Bhattacharya of Stanford University (among other prestigious affiliations) and Dr. Martin Kuldorff of Harvard University, two of the three authors of the Great Barrington Declaration, published in October 2020 and signed by thousands of medical professionals. The Declaration challenged the government-led strategy of shutting down American society through a variety of mandates as though everyone -- young and old, healthy and ill -- were equally vulnerable to the dangers of COVID-19. The government's data on who was suffering serious, possibly lethal illness and requiring hospitalization contradicted that baseless premise early in the pandemic.

The Declaration, which today has signatures from more than 62,000 scientists and health care professionals (and 932,000 signatures overall) called instead for "focused protection" of the elderly and those with already-compromised immune systems. Otherwise, Americans should be left free to live normal lives. The shutdown of society, this view holds, would inflict untold harm in regard to health (because of deferred medical examinations/treatments), psychological well-being, children's education, and lost income. All of this and more have now been documented. "Focused protection," it must be emphasized, was not a radical position in 2020. Rather, it had been the mainstream approach to pandemics for the previous 100 years.

Unfortunately, the authors, who also included Dr. Sunetra Gupta of Oxford University, were smeared by government officials and spokesmen as fringe characters who could be safely ignored. At the same time, the national government pressured social media to suppress challenges to its message and policies. In other words, the government did everything it could short of direct censorship to keep the American people from knowing that eminently qualified doctors and other scientists disagreed with the party line.

Under the U.S. Constitution and case law, the government is not only barred from directly interfering with speech on the basis of content, but it is also prohibited from inducing or coercing private entities, such as social networks, to do so. The Supreme Court has spoken on this.

The plaintiffs contend that this is precisely what the defendants did during the pandemic through "express and implied threats" against the social networks, including the threat of antitrust action and the threat to withdraw the protection provided by Section 230 of the Communications Decency Act, which immunizes the platforms from liability for what participants post. 

NCLA says:

Government-induced censorship is achieved through a wide variety of mechanisms, ranging from complete bans, temporary bans, “shadow bans” (where often neither the user nor his audience is notified of the suppression of speech), deboosting, de-platforming, de-monetizing, restricting access to content, requiring users to take down content, and imposing warning labels that require click-through to access content, among others. These methods also include temporary and permanent suspensions of disfavored speakers.

This sort of censorship, which strikes at the heart of what the First Amendment to the U.S. Constitution was designed to protect—free speech, especially political speech—constitutes unlawful government action. The federal government is deciding whose voices and ideas may be heard, and whose voices and ideas must be silenced. Moreover, this state action deprives Americans of their right to hear the views of those who are being silenced, a First Amendment corollary of the right to free speech.

The lawsuit seeks no monetary damages, but it asks the court to declare that the plaintiffs acted illegally. It also asks the court to

Preliminarily and permanently enjoin Defendants, their officers, officials, agents, servants, employees, attorneys, and all persons acting in concert or participation with them, from taking any steps to demand, urge, pressure, or otherwise induce any social-media platform to censor, suppress, de-platform, suspend, shadow-ban, de-boost, restrict access to content, or take any other adverse action against any speaker, content or viewpoint expressed on social media.

Going further, we must demand an end to the government-university-science complex, which puts a heavy political thumb on the scale of scientific debate without which the truth cannot be ascertained. As the complaint states, "Yesterday’s 'misinformation' often becomes today’s viable theory and tomorrow’s established fact.... This prediction has proven true, again and again, when it comes to suppressing 'misinformation' and 'disinformation' on social media." (The complaint notes other examples of similar reversals despite official government efforts, including the Hunter Biden laptop story and the Wuhan lab-leak theory of the coronavirus's origins. These once-belittled accounts either have been confirmed, as with the laptop story, or have achieved reasonable credibility if not confirmation, as with the lab-leak theory.)

Government officials must not be permitted to suppress, directly or indirectly, public-health and other sorts of claims they disagree with. Officials of course can say what they believe are the facts, but they must not attempt to smear, marginalize, and silence dissenters. The very act of financing scientific research is prejudicial because of the stamp of exclusive legitimacy it implies. As the pandemic illustrates, a truly free marketplace of ideas is literally a matter of life and death.

TGIF: What Really Protects Liberty?

The COVID-19 pandemic has demonstrated, as if we needed another demonstration, that little stands between the government and our liberty. Champions of individual freedom have been properly disturbed by how much power governments at all levels have seized since the pandemic hit in 2020.

To make matters worse, officeholders and public-health officials object when the judicial branch occasionally overturns their power grabs because judges are said to be unqualified to rule on "medical" matters. So, if judges furnish constitutional and other legal grounds against power grabs, we're supposed to ignore them because they in fact are issuing medical opinions for which they are not qualified. That's pretty inventive reasoning, but unfortunately it is in the service of tyranny and serfdom.

Some judges have made good, that is, power-limiting, decisions during the pandemic, though they might well have gone the other way. (See John Hasnas's "The Myth of the Rule of Law.") It's only a slight exaggeration to say the judicial process is a coin toss.

When judges get it right, the devout constitutionalists among us cheer: "The system works!" But what about all the times the rulings went the other way? Where does that leave the constitutionalists? They will say that the problem isn't with the Constitution; it's with the judges. But considering that the Constitution doesn't interpret itself, who were they expecting to interpret it? Robots that have been correctly programmed? Who would do the programming? Even people within the competing schools of constitutional interpretation don't agree on everything.

Since it's people all the way down and the process is internal, not external to society, don't the constitutionalists have a wee problem?

James Madison called the Bill of Rights, which he wrote, a "parchment barrier." But he couldn't have really meant that because parchment is a poor material for making the heavy-duty, barrier liberty requires due to the predatory nature of politicians. The only real barriers in this regard are the people themselves -- people, that is, who refuse to give, carry out, or obey unjust orders. Paraxodically, orders require consent, and that can be withheld. (Think of the scene in Monty Python's Life of Brian in which Brian tells a prison guard that he doesn't have to follow orders and the guard replies, "I like orders.")

Strictly speaking, constitutions and statutes cannot compel unjust conduct or compliance. They are merely words. When governors ordered "non-essential" businesses and schools to shut down and people to stay home in 2020, those politicians didn't point guns at anyone. People obeyed, but I suspect that only a few did so lest they be punished. If someone had disobeyed, armed agents of the state might have been dispatched, but why did they obey orders? No gun was held to their heads. They might have been fired and others put in their place places, but no one would have been subjected to force.

So all these state agents acted to suppress liberty freely. They followed orders. Why? Because they believed it was proper to do so. Most of the public believed it too. So they were unlikely to interfere.

Why do all these people behave as they do? They do it because of their moral-political values, which they've absorbed since childhood. They believe deep down that the state -- which is just a large gang of people -- is mystically endowed with a moral authority that permits them to do things that the rest of us must never do. In other words, the people, who always outnumber their rulers, subjugate themselves. (See Etienne de la Boetie's classic, The Discourse on Voluntary Servitude.)

This means that the real constitution in any society is not necessarily and usually is not the written one. The real constitution is reflected in most people's day-to-day actions, attitudes, and de facto institutions. It may conform to or conflict with the written constitution. As Roderick Long writes, “what matters is a nation’s ‘constitution’ in the original sense of the actual institutions, practices, and incentive structures that are in place.” (See “Market Anarchism as Constitutionalism.”)

The upshot is that if people's values are not consistently pro-liberty, it won't matter in the long run much what the Constitution "says," and if they are pro-liberty, then it won't matter whether there is a written constitution -- or a state for that matter. In this respect, the debate between libertarians over whether the state is either necessary or proper starts to look rather different. Stateless societies would have constitutions too. As Long puts it:

Anarchy thus represents the extension, not the negation, of constitutionalism. Instead of thinking of anarchy as a situation in which government has been squeezed down to nothingness, it might be more helpful – at least for minarchists – to think of anarchy as a situation in which government has been extended to include everybody. This is what Gustave de Molinari, the founder of market anarchism, meant when he wrote, in 1884: “The future thus belongs neither to the absorption of society by the State, as the communists and collectivists suppose, nor to the suppression of the State, as the [non-market] anarchists and nihilists dream, but to the diffusion of the State within society.”...

Anarchy is the completion, not the negation, of the rule of law. 

But didn't Madison give us liberty-protecting checks and balances? Not really. What he actually bequeathed was a simulacrum of what a fully freedom-based system would provide. While he hyped his Constitution as featuring a separation of powers (and a context in which ambition would neutralize ambition), he overlooked the likelihood that the branches and special interests may discover that collusion against the people is more profitable than competition among themselves.

In contrast, as Long points out,

Far from eschewing checks and balances market anarchists take market competition, with its associated incentives, to instantiate a checks-and-balances system, and to do so far more reliably than could a governmental system…. Separation of powers, like federalism and elective democracy, merely simulates market competition, within a fundamentally monopolistic context.

These insights are valid regardless of the content of a given written constitution, although libertarian and conservative constitutionalists' love affair with the U.S. Constitution is curious. As the Anti-federalists pointed out when the Constitution was first proposed, the taxing power, absent from the Articles of Confederation, is virtually unlimited and the necessary-and-proper clause is downright scary. Then there's that power to regulate trade, the commerce clause! It also was absent from the Articles of Confederation. (Not that I would have been satisfied with that document. But the comparison is illuminating.)

I won't mention the executive branch's royal power over military and foreign policy. Its consequences have been too terrifyingly obvious to need elaboration here.

And let's not forget the Constitution's implied powers. I know, I know: the Constitution has no implied powers. The national government may only exercise powers expressly delegated. Right? Sorry. As Madison himself said during the debate over the proposed Tenth Amendment," it was impossible to confine a government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae." Ouch!

Of course, no article about the Constitution would be complete without quoting Lysander Spooner's irrefutable "The Constitution of No Authority," published in 1870, a time much beloved by constitutionalists:

But whether the Constitution really be one thing, or another, this much is certain—that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist

What's to stop a return of all the restrictions if COVID-19 rears its ugly head or when the next pandemic comes long? Not the Constitution. Constitutions are security blankets, and like all security blankets, they distract from real danger: the unspoken values people hold that are inimical to liberty. Only education and persuasion can instill pro-liberty values.

(Read more about these matters in my book America's Counter-Revolution: The Constitution Revisited.)

TGIF: Safety in Freedom

With the emergence of the Omicron COVID-19 variant, renewed restrictions on liberty or calls for their reinstatement have broken out around the world. The new wave is probably only beginning, and with it will surely come sermons on how we must face trade-offs between liberty and safety. This seems to be the new normal.

The usual justifications for this purported necessity always feel inadequate, with gaping holes in the case for expanding government power to extraordinary lengths. Since we all now have a good deal of experience with COVID under our belts, let's hope that the public's doubts about any new power grab will be strong and loudly expressed.

What brought this subject to mind was a recent Oxford Union debate, which I ran across on YouTube. While I've watched only a little, it quickly occurred to me that the case for a necessary trade-off between liberty and safety runs aground with the realization that liberty is a necessary condition for safety. After all, it's not always clear how one can best stay safe in a situation: that requires thought, discourse, action, and therefore liberty.

Moreover, that matter is separate from the question of how safe any particular person may wish to be. Indeed, people have different preferences with respect to risk and safety in part because life is complicated and trade-offs are ubiquitous. Increasing one's safety in some measure by abstaining from some desirable activity will likely require too big a sacrifice for some people, although for others the benefit will be well worth the cost. (A person cannot violate his own freedom.) So who's to decide? Why should a faceless bureaucrat or a charismatic politician make the call?

Few people understand that there's safety in liberty, specifically, the freedom to think, improvise, and innovate. This is true for individuals, but when the potential danger is social or global, the case for liberty is equally clear. That's precisely when we all need many minds searching for solutions without central direction. Knowledge is dispersed, and no one can say who will have a key insight. Competition is the universal solvent. And to be effective, thinking requires freedom of action.

Matt Ridley and Julian Simon before him elaborated how we all benefit from the often unintentional combination of ideas generated in different and unlikely places. By now, the serendipity that freedom produces ought to be expected. The results often are imaginative approaches to vexing problems that few would have dreamed possible.

The case for giving up freedom to acquire a measure of safety is actually an appeal to trust in an anointed central authority. And that means a threat of force is at least implied.

But where is the actual safety in that arrangement? Why should anyone believe that the anointed know what they are doing? They operate in a centralized, bureaucratic environment. The rulers expect the ruled to behave like children who have been told that all will be fine if they obey. Unfortunately, the ruled often think of themselves as children when it comes to the latest risk proclaimed by their rulers.

So are people really safer than they would have been in a free, decentralized, and competitive environment? We find no evidence for this in places that imposed harsh restrictions on liberty in response to COVID-19. Lockdowns, vaccine and mask mandates, and travel bans show no signs of delivering on the politicians' promises. There just is no good substitute for freedom at every level because no central authority is knowledgeable enough.

Finally, what about the risks that individuals might present to others and not just to themselves? There are big differences between 1) the potential risks to others that anyone may pose in simply going about the normal business of life and 2) the dangers produced by aggression, gross negligence, and inadvertent toxic pollution, where identifiable individuals entitled to due process can be shown to present demonstrable peril to others. For one thing, in the first case, people are not passive victims-in-waiting but generally informed agents capable of taking precautions against infection. Imagine the nightmare that would come from the principle that everyone in society may be viewed as a threat to everyone else merely by breathing. We don't have to imagine it, do we? That's how most governments throughout the world -- blunt instruments that they are -- responded to the pandemic. As a result, our livelihoods -- our lives-- are now subject to cancellation without notice.

(Photo credit: Dev Asangbam, Unsplash License)

TGIF: Evict the President

President Biden has reversed himself under pressure from his progressive flank and has given the go-ahead for a new moratorium on renter evictions throughout most of the United States for individuals making up to $99,000 a year (couples, $198,000). The twist is that Biden acknowledges that the Centers for Disease Control and Prevention (CDC), which reports to his secretary of health and human services, has no legal authority for the action.

Most courts have agreed about the lack of authority, syndicated columnist Jacob Sullum reports, and Supreme Court Justice Brett Kavanaugh said in June that congressional authorization would be required for an extension of the moratorium beyond last July. Despite that statement, the Supreme Court refused to lift a court's stay of another judge's ruling against the CDC's move. Biden apparently figures that by the time the court thwarts him, he will have accomplished his objective of giving relief to renters.

Doesn't that make Biden's order an impeachable offense? Shouldn't White House eviction proceedings begin in the Senate? Fat chance. Since it's a non-Trump who now flouts the revered rule of law, it's evidently okay. But let's not forget that the first CDC moratorium on evictions came last year, while Trump was still in office. (Some states and localities had already imposed their own moratoriums.)

CDC chief Rochelle Walensky says the moratorium will save lives: it's "the right thing to do to keep people in their homes and out of congregate settings where COVID-19 spreads." In this case, that wins cheers from people who would condemn a similar statement ("it's the right thing to do if X") in the harshest terms had it come from an administration of the opposing party. That's what passes for principle in politics.

Many objections could be made to the CDC order. It could be pointed out, for instance, that allegedly dubious estimates of the lives already saved and to be saved by a moratorium are used to justify it. In at least one case, the data used in a study were not released for independent verification. "These shoddy one-off studies are just ammunition for people who want to put a link saying 'studies prove' in their otherwise completely speculative articles," Aaron Brown, a professor of statistics at New York University and the University of California, San Diego, said in a Reason commentary and video.

But even if the studies were trustworthy, would that justify a government's agency's nullification of landlord property rights through its own interpretation of the Public Health Service Act? And even if that interpretation accorded with the legislation's stated intention, where did Congress's power come from? These questions should matter in a society theoretically committed to the rule of law and individual rights, but they don't matter much anymore.

If Congress and the CDC had the power they claim, imagine the floodgates that would open to wholesale violations of personal liberty. We have lived through the lockdowns rationalized by a pandemic, but that might end up looking like child's play. Once we accept the government's public-health assertions as grounds for mass house arrest and deprivation of property, we're in big trouble.

It could also be noted that, by and large, landlords do not constitute an especially wealthy class and might well make less money than their tenants. Those property owners will suffer or try to raise rents on other tenants who are not in default--or both. But even if that were not the case, so what? As a rule, wealthy people have rights too, though I can think of places where that idea would be scoffed at.

Some might say that people who have trouble paying their rent have suffered because of the government's lockdown response to the pandemic. I assume that's true in some cases. The problem is that when politicians do bad things to people, the perpetrators don't suffer the consequences. Rather, the costs of restitution, even when justified, fall on innocent parties: taxpayers, consumers (through inflation), and in this case, people who rent homes to others.

It goes without saying that the moratorium is popular with those who on principle oppose private property. But it doesn't go nearly far enough for some people. We've heard calls not for just a temporary stay, but for the abolition of rent and "landlordism" (and mortgages). "Cancel the Rent" protests have been staged around the country.

Opposition to the freedom to rent one's property to others is a classic case not only of disparaging freedom but of failing to look for what the 19th-century French liberal political economist Frédéric Bastiat called the unseen, or secondary, consequences of economic policy. One might feel good at the thought of rent being outlawed, but no one who thought for more than a moment would believe that would be the end of the story. Since the owners would be dispossessed, who would build housing henceforth? But more likely, any ban on renting would be gotten around by calling rent by another name. Why? Because property owners and would-be renters would want the relationship: it yields mutual gains. Not everyone wants the responsibility or burden of owning a home; much depends on a person's stage of life and plans. The rental market permits much-appreciated flexibility. This would be true even if government did not make housing so expensive through elitist land-use controls like zoning and other regulations.

The long-term answer to the housing issue is the free market--which means repeal of all special-interest interventions that keep prices high. The short-term answer is to remove all the pandemic restrictions on economic activity. Meanwhile, let landlords and tenants work things out for themselves.

Government's Perverse Incentives

It might seem reasonable to think that in the early days of a pandemic involving an unfamiliar pathogen, the public ought to allow the government leeway in its imposition of extreme measures, such as the virtual shut down of economic activity. But the initial impression ought to dissolve when one reminds oneself that we're talking about government, a monopolistic organization shot through with perverse incentives because it gets its revenue through coercion (taxation) and faces no profit-and-lost test. (We also must understand that extreme measures were imposed on the basis of a widely criticized computer model, not on any facts.)

Obviously everyone will know less about a newly emerged virus on Day 1 (whenever that may be) than on Day 30 and beyond. That ought to mean that policymakers and their advisers in the world of science should be prepared and eager to retreat from the early extreme measures when the data point in that direction. But, again, we're talking about politicians, bureaucrats, and the anointed experts who have their ears and don't wish to lose them. They all face perverse incentives that induce bureaucratic sclerosis. (Other perverse incentives also apply.) This phenomenon has long been identified with the Food and Drug Administration. Look at the incentives facing a bureaucrat who must choose between approving a new drug or not. If he approves and headline-catching unanticipated rare side-effects emerge, the bureaucrat's name on the dotted line could be mud, no matter how beneficial the drug is on the whole. Career ruined. But if he doesn't sign off and people keep dying because the drug remains unavailable, few among the public will call the bureaucrat a killer because his responsibility will escape most people's notice.

You can see the parallel with the pandemic. Even if new information showed the initial extreme measures to be inappropriate, officials would have almost no incentive to remove them. If they did and the number of cases and death rose, they would be pilloried in the press, whether or not their policies had anything to do with the rise. But if they didn't remove the extreme measures and cases or deaths surged, they would not be on the hook. In fact, they would say their policy actions kept the surge from being even greater. (The policy makers would be even less accountable for the deaths directly caused by the policies themselves, which is the case with the shutdown.)

However formidable, these perverse incentives are not insurmountable, and occasionally someone in the government world admits a mistake. But this is not to be expected often. Government is deadly.

The only cure is full freedom, decentralization, and open debate in an environment where dissenter are not officially stigmatized, shunned, or repressed. In other words, we need a radically freed market, which rewards rather than penalizes the identification and correction of errors.

Our Foolish Politicized Era

It's ridiculous to think you can divine people's politics merely from their views on the pandemic or any given policy response to it. Similarly, it's absurd to rebut a view by referring to the holder's politics.

How to Panic the Public

1. Disseminate worst-case scenarios, taking care to ignore the dubious assumptions that go into modeling while vilifying anyone, no matter how well-qualified, who refuses to ignore them.
2. Emphasize the (alleged) benefits of a draconian government response, taking care to ignore the costs while vilifying anyone, no matter how well-qualified, who refuses to ignore them.
3. Repeat as necessary, preferably often.

An Economy Cannot Be Crippled

Lockdown doesn’t cripple “the economy.” It cripples people who are trying to live. Strictly speaking, there’s no economy. There are people interacting in particular ways regularly.

What the Love of Power Trumps

How interesting that the people most worried about Trump’s authoritarian personality demand draconian government responses to the pandemic. Love of power must trump fear of Trump.