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Following Thursday’s contentious U.S. House of Representatives hearing on censorship, Children’s Health Defense (CHD) today hosted a legal roundtable on First Amendment rights and the government’s suppression of free speech.
The roundtable, broadcasted earlier today on CHD.TV and hosted by Mary Holland, CHD president on leave, included four attorneys who work with CHD on censorship-related cases, including Kim Mack Rosenberg, acting general counsel for CHD, and attorneys Rick Jaffe, Jed Rubenfeld and Roger Teich, who are involved in censorship cases.
The roundtable participants shared reactions to yesterday’s hearing and the testimony of Robert F. Kennedy Jr., CHD’s chairman on leave, and to the attacks levied against him by Democrat lawmakers.
They also discussed ongoing lawsuits related to censorship and medical freedom, and issues of free speech more broadly.
Government censorship occurring under ‘veil of secrecy’
Much of today’s discussion focused on yesterday’s hearing — especially the frequent attacks levied against Kennedy and attempts to prevent him from publicly testifying.
Rosenberg said it was “really sad and somewhat painful to watch these very uncivil attacks on Mr. Kennedy and on others,” adding that through such attacks, the First Amendment “got lost … by a number of the committee members.”
Jaffe said that as “a lifelong Democrat,” the hearing was “sad and embarrassing.”
“I’m going to say words I never thought I would say as a Democrat … I think Rep. Jim Jordan [R-Ohio, chair of the House Judiciary Committee] did a good job. He was reasonable, he was fair, and the Democrats were just horrible,” Jaffe said.
“I never thought I’d see the day where Democrats would make such a blatant attempt to not only suppress speech, but just to lie,” Jaffe said. “The level of ad hominem attacks, I thought was … let’s just call it regrettable.”
Rubenfeld addressed the efforts to prevent Kennedy from speaking. If they had succeeded, he said, the hearing would have been held in an executive session, which would have been “groundless” and “shocking.”
Rosenberg said it was “a very deep vein of irony that it was a hearing on censorship where they tried to censor the speakers.”
Injunction in Missouri case provides backdrop for hearing
The roundtable discussion addressed the broader freedom of speech concerns raised by Missouri v. Biden, a lawsuit challenging alleged government collusion with social media platforms to censor authors who challenged establishment narratives, especially around COVID-19.
Rubenfeld said the “groundbreaking” July 4 ruling in Missouri v. Biden, where an injunction was issued against several federal agencies and government officials, barring most of their communication with social media platforms, served as the “background” for Thursday’s House hearing, during which “many references were made to that case.”
“We are in the middle of an unprecedented development in public discourse and speech in America,” Rubenfeld said. “A handful of companies exercise unprecedented control over the content of what hundreds of millions of Americans can see and hear,” a development he said has “never happened” in human history.
This development has not gone unnoticed by the federal government, which has sought to leverage it to its advantage, Rubenfeld said. “That’s just too tempting a target for the government. … The government’s going to try to get those companies to suppress speech the government disfavors,” he said.
Teich, referring to Judge Terry Doughty’s ruling after reviewing 20,000 pages of previously secret documents, said: “A federal judge has found that ‘misinformation’ was what the government said it was.”
Teich said the findings made so far in Missouri v. Biden should lead to “some common ground that ought to be front and center” regarding government censorship of speech, even though, he added, “as a country, there is no common ground anymore.”
Rubenfeld noted that CHD has been actively engaged in the Missouri v. Biden lawsuit, filing an amicus brief in the case.
“CHD and Mr. Kennedy himself can take a lot of credit for that case. We’re involved in those proceedings. They’re using legal theories that we helped develop. And I think everybody should be very proud of that. That’s a historic development and a great deal of the hearing focused on that case.”
Holland noted that the Missouri v. Biden findings also showed “there are literally hundreds of federal employees right now monitoring social media and instructing social media or inducing social media to deplatform people, take information down, sandbag it, change the algorithms and so on.”
According to Teich, such government actions are taking place under a veil of “secrecy,” which he said “is the hallmark of this censorship enterprise.” He questioned how Americans “can hold officials accountable … if we don’t know what they’re doing.”
Should Congress pass an anti-censorship law?
Jaffe said Thursday’s hearing highlighted “the importance of censorship and what role, if any … the government should have in controlling messages under the guise of public health.”
Such issues bring policy proposals to the fore, Rubenfeld said, calling for “a federal statute that stops the large social media companies from discriminating on the basis of political opinion.”
Rubenfeld noted that while it is illegal for telephone companies to eavesdrop on calls or “cut somebody off … on the basis of their political opinion,” social media companies today engage in both practices.
“What we could do is have a statute that imposes on them the exact same kinds of anti-discrimination regulations that the telephone networks had to comply with. So, a social network should not be able to discriminate on the basis of political opinion any more than the telephone networks were,” he said.
According to Rubenfeld, Florida and Texas recently passed state laws with such provisions, “but those are being held up in judicial proceedings.”
He added that while it’s unclear whether states possess such authority, “the federal government certainly would,” via an amendment to Section 230 of the Communications Decency Act, which gives internet providers legal protections for hosting, moderating and removing most user content.
CHD involved in Facebook lawsuit over ‘malinformation’
The attorneys also discussed CHD’s involvement in two other censorship lawsuits.
One is a lawsuit against Facebook in the 9th Circuit U.S. Court of Appeals, “a putative class action that hasn’t been certified as a class yet, but for consumers of media and social media who have been damaged by the censorship,” according to Rosenberg. The case was heard 14 months ago and a decision is pending.
Even though it is a social media company being sued, Rosenberg said, “The claim is, once again, that the … federal government was in there telling Facebook what to censor and what not to censor, what was true, what was false, what counted as ‘misinformation’ and what counted as truth.”
Some of the censored information was known to be true, Rubenfeld said, adding:
“There’s really two dangers here: the government telling Americans what’s true and what’s false … And then you go a step further and the government and the social media companies are agreeing [that information is true] but suppress it anyway because it’s ‘dangerous.’”
Once this happens, “you’ve really crossed into uncharted waters,” he said.
“It turns out that Facebook in collusion with the federal government, wasn’t merely being told by the federal government what’s false and, and, and what’s true, and that you should censor the false stuff. They were agreeing that even certain true information, that is certain information that everybody agreed, even Facebook agreed, was true,” he said.
Rosenberg noted that, as a result, “there are individuals out there who have suffered COVID-19 vaccine injuries, for example, and have been unable to share on their social media their own stories because it doesn’t follow the popular narrative.”
“The constitution becomes more important, not less important, in challenging times,” she said. “Our rights have been truncated and attacked — especially during the past three years.”
The roundtable participants drew upon Kennedy’s testimony Thursday, where he addressed how the term “malinformaton” was recently created. Rosenberg said that such “malinformation” is “completely true information [that] just goes against the narrative that is the prevailing narrative today.”
Teich said that CHD’s lawsuit against Facebook also includes a fraud claim, on the basis that the platform is deceiving its users by removing information known to be true.
He referenced CHD content that was labeled as “false” and removed from social media platforms, saying that such actions constitute “a form of knowing falsehood that is fraud … under existing law.”
Facebook claimed in response that “there was no fraud, because the only people they’ve deceived are their own users,” from which they don’t take money, Teich said.
Challenging the ‘online censorship cartel’
The other legal case, also being heard before Judge Doughty of the U.S. District Court for the Western District of Louisiana Monroe Division, is an antitrust lawsuit CHD filed against the Trusted News Initiative (TNI), a consortium of legacy media companies including The Associated Press, Reuters, The Washington Post and the BBC, which CHD alleges colluded to censor non-establishment views.
Rubenfeld said the TNI case challenges the practices of a “kind of online censorship cartel” that “brought together all the major social media companies” along with “certain huge legacy media organizations.”
TNI’s members not only colluded to “suppress reporting made by non-mainstream online news publishers and many others that contradicts and competes” with their own reporting, Rubenfeld stated but went a step further in calling that same information “misinformation.”
“When they collude with each other to suppress what other people are publishing, that’s an antitrust violation,” Rubenfeld said.
The lawsuits against government actors and social media platforms are “principally injunctive actions,” he said, seeking a court determination that a First Amendment violation has been committed or requiring social media companies to “stop working with the government on this stuff.”
Progress in medical censorship lawsuits
The attorneys also discussed CHD’s involvement in medical speech cases, involving “censorship of doctors and their ability to share information and their ability to provide information even to their own … patients,” according to Rosenberg, including cases in California, Maine and Washington.
“It’s really extraordinary, the lengths that government and medical boards are going to, to try to silence doctors from effectively treating their patients and even effectively sharing information with the public,” she said.
Jaffe referred to a July 2021 press release from the Federation of State Medical Boards. This statement instructed state boards to “go after doctors who speak out in public, who go against the COVID narrative,” he said.
Jaffe said that as a result of this directive, several state medical boards launched disciplinary proceedings against doctors, while states like California attempted to pass laws barring doctors from disseminating so-called “misinformation” and “disinformation,” even in private consultations with their patients.
According to Jaffe, there have been positive results for CHD so far in these cases.
He noted that California’s law was struck down, proceedings by Washington’s state medical board against a doctor who published articles questioning establishment COVID-19 views were halted, while in another case, an injunction was granted, stating that “there’s no such thing as contemporary scientific consensus.”
Rubenfeld said he never thought in his lifetime he would see basic principles of the First Amendment denied or violated as systematically as they are, noting that “doctors are being threatened with loss of their license if they simply express their opinion about a hugely important public health matter that we don’t know enough about yet.”
“We are living through a period of attack on the First Amendment of a kind that I don’t think I’ve ever seen in my lifetime,” he said. “I just urge everybody in their own lives to try to just keep speaking the truth as they see it.”
Jaffe said that “despite the nastiness” and attacks levied during Thursday’s hearing against Kennedy and other critics of establishment views on COVID-19 and other issues, that it “was a good day for the First Amendment.”
“I think the bottom line is, the more we talk about these issues, the better it is for everyone, because at the end of the day … most people don’t want the government being the arbiter of true and false.”
The Defender on occasion posts content related to Children’s Health Defense’s nonprofit mission that features Mr. Kennedy’s views on the issues CHD and The Defender regularly cover. In keeping with Federal Election Commission rules, this content does not represent an endorsement of Mr. Kennedy who is on leave from CHD and is seeking the Democratic nomination for president of the U.S.