by Greg Piper
The whole-of-government approach to limit the spread of purported misinformation, disinformation and “malinformation,” from the White House to federal agencies and their private partners in Big Tech, think tanks and speech-policing organizations, is turning inside out.
Judicial scrutiny is supplementing the efforts of President-elect Trump’s choice for Federal Communications Commission chairman to dismantle the “censorship cartel” and Department of Government Efficiency co-leader Elon Musk to slash and burn the administrative state, with the State Department’s Global Engagement Center already a reported target.
A federal judge approved further legal discovery in a lawsuit by Louisiana, Missouri and censored doctors against federal officials and agencies including GEC for pressuring Big Tech to censor, months after the Supreme Court ruled they didn’t have standing for a preliminary injunction.
Alluding to Vice President Kamala Harris’s much-mocked verbal crutch, President Trump nominee Judge Terry Doughty ruled he was “burdened by what has been,” the SCOTUS ruling.
But he said the plaintiffs showed evidence that is not “impermissibly speculative”: a congressional investigation of Facebook parent Meta that found internal admissions it censored the COVID-19 lab-leak theory because it was “under pressure from the [Biden] administration” to do so, and CEO Mark Zuckerberg’s similar admission to Congress this summer.
The feds are “uniquely in control of the facts, information, documents, and evidence regarding the extent and nature” of the censorship pressure, and the already disclosed emails show “the pains that certain persons and entities went through to hide their tracks,” Doughty ruled while limiting further discovery to resolve factual questions for jurisdiction.
“We end with the unignorable reality that regime change is imminent” – Trump’s second presidential term – and the “wild” possibility that Robert F. Kennedy Jr., one of the “Disinformation Dozen” targeted by the White House, “may soon replace or control” the defendant Department of Health and Human Services as Trump’s nominee for secretary.
But that by itself is too speculative to dismiss the case, the ruling concludes.
One of the censored doctors, Stanford medical professor Jay Bhattacharya, is reportedly a top candidate to lead the National Institutes of Health, whom then-NIH Director Francis Collins targeted as a “fringe” epidemiologist for opposing COVID-19 lockdowns.
Freedom of Information Act documents obtained by investigative journalist Jimmy Tobias and posted Monday show Collins’ Principal Deputy Director Lawrence Tabak, who recently testified at the House Select Subcommittee on the Coronavirus Pandemic’s final hearing, was involved in potential censorship within NIH in January 2021.
Tabak agreed to discuss “potential concerns/policy conformity” with a manuscript on gain-of-function research in light of the COVID-19 pandemic co-authored by National Institute of Environmental Health Sciences bioethicist David Resnik, who allegedly asked for then-Science Policy Director and Chief of Staff Carrie Wolinetz to review it.
Wolinetz warned Tabak the manuscript “suggest[s] parity between unsubstantiated manmade and/or laboratory origin theories and peer reviewed studies which provide scientific evidence that the virus is of natural origin” and connect the lab-leak theory to NIH-funded research in 2015, which she called “specious” given that “there is no evidence for lab release.”
She also has “more global concerns with the notion that an NIH employee would be providing what amounts to critiques of HHS policy that is implemented by NIH, or suggestions that contradict messaging by NIH leadership, in this type of article,” Wolinetz told Tabak.
The manuscript was not published for another three and a half years. It appeared this July in the Springer Nature journal Monash Bioethics Review, 14 months after Wolinetz left her final NIH post as senior adviser to then-acting Director Tabak, investigative reporter Alison Young noted.
Journalist Alex Berenson’s opposition to the government’s motion to dismiss his censorship-by-proxy lawsuit, which has gone further than the state-led lawsuit, disclosed what he calls “as close to a smoking gun as we could hope to find now.”
Musk’s X, formerly Twitter, gave him an Aug. 21, 2021, email from then-Twitter lobbyist Todd O’Boyle that told O’Boyle’s boss he had just contacted “WH, Andy and Scott Gottlieb” – the White House, President Biden’s COVID adviser Andy Slavitt and the Pfizer board member who was formerly President Trump’s Food and Drug Administration chairman – “to keep the target off our back.”
“It shows both that O’Boyle feared the pressure he and Twitter faced and that he viewed the conspirators as a group acting together,” Berenson wrote Sunday. “Four days later – at the instigation of Dr. Gottlieb – he pushed through my permanent ban from Twitter, depriving me of a worldwide audience.”
Slavitt, a defendant, comes up again in Berenson’s argument that he can sue for conspiracy to violate his First Amendment rights as a member of a protected class, given that Slavitt said on a July 2021 podcast that social media companies need to “cut down on the amount of false information that people who haven’t been vaccinated see.”
Berenson is also arguing he can sue for monetary damages because “I have no other way” to hold them accountable, such as through administrative claims, for violating his rights.
Echoing President Trump’s first-term Federal Communications Commission Chair Ajit Pai, commissioner and next Chair Brendan Carr said Apple, Microsoft, Meta and Google parent Alphabet may lose their liability shield under Section 230 of the Communications Decency Act for failure to show “good faith” in their outsourced content-moderation decisions.
Carr accused the Big Tech firms in letters made public Friday of playing “significant roles” in the “unprecedented surge in censorship” in recent years, working with the Biden administration and self-appointed “media monitors” to “defund, demonetize, and otherwise put out of business” media organizations that flouted preferred narratives.
He demanded they turn over information about their work through web browsers, app stores and social media with “the Orwellian named NewsGuard,” which uses its partnerships with advertising agencies to allegedly censor media targets but may not qualify for the good-faith prong of Section 230 based on ideological and arbitrary enforcement of its ratings.
NewsGuard, which targeted Just the News among other insufficiently obedient outlets, is under House Oversight Committee investigation and was reviewed in a House Small Business Committee report on the “censorship-industrial complex” this year.
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Just the News reporter Greg Piper has covered law and policy for nearly two decades, with a focus on tech companies, civil liberties and higher education.
