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The Renewed Injunction Neglects the Power of the Intelligence Community


Ostensibly, the Fifth Circuit Court of Appeals ruling in Missouri v. Biden was cause for celebration in the battle against censorship. Further analysis, however, suggests that the judges may have greenlit the most insidious aspects of the censorship apparatus. This may be reversed at trial; if not, it will enable the US intelligence community to hijack the First Amendment.

The Court upheld the central premise of the plaintiffs’ case: that the White House likely coerced platforms to impose censorship and “commandeered their decision-making processes, both in violation of the First Amendment.” 

Defenders of the regime like Larry Tribe can no longer argue that the plaintiffs’ argument is predicated on “a thoroughly debunked conspiracy theory.” The ruling is a triumph in recounting the crimes of the last few years.

Along with Judge Terry Doughty’s 155-page order, the case details how the Biden Administration worked in tandem with social media giants to silence its critics. They have memorialized an aspect of what Justice Neil Gorsuch described as “the greatest intrusion on civil liberties in the peacetime history of this country.”

Perhaps yearning for a victory, opponents of censorship rejoiced upon hearing that the Court of Appeals had partially upheld the injunction from July 4. At Brownstone, we wrote that it was a “tremendous victory for free speech.” But that ignores what the decision left in place. 

The Ongoing Threat of the Intelligence Community

The American intelligence community and private-public partnerships were central actors in the assault on the First Amendment. The Department of Homeland Security worked with social media platforms to censor disfavored content through its subsidiary, the Cybersecurity and Infrastructure Security Agency (CISA). 

As we explained in June, CISA was instrumental in purging online dissent. It distinguished speech based on political favoritism and used a process called “switchboarding” to censor “malinformation – truthful information that, according to the government, may carry the potential to mislead,” according to a report by the House Judiciary Committee. 

But CISA did not act alone. The Fifth Circuit explained how the Department of Homeland Security created a three-pronged attack against what it deemed misinformation. “In switchboarding, CISA officials worked alongside the Center for Internet Security and the Election Integrity Project, two private organizations. The officials’ actions apparently led to content being removed or demoted by the recipient platforms,” including Twitter and Facebook.  

By combining the resources of Big Tech, the Security State, and private organizations, the censorship apparatus succeeded in skewing the Covid debate and suppressing free speech.

The Election Integrity Project’s professed goal is to fill the “critical gap” that it sees from the fact that no federal agency “has a focus on, or authority regarding, election information originating from domestic sources within the United States;” they fail to acknowledge that the First Amendment demands this deliberate and “critical gap.” These groups served as the censors’ henchmen, carrying out orders so that the figureheads of American government didn’t get their hands dirty. 

Judge Doughty’s original injunction barred the government from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project… Stanford Internet Observatory, or any like project or group.” 

The Fifth Circuit overturned this order from the injunction, reasoning that switchboarding was merely an attempt “to convince” third parties to adopt misinformation policies rather than an effort “to coerce” them. The judges found the record lacked “sufficient evidence that CISA made threats of adverse consequences – explicit or implicit – to the platforms for refusing to act on the content it flagged,” nor was there evidence that CISA had “meaningful control” over the tech companies. 

The record offers a basis for this conclusion. Unlike the White House and Rob Flaherty, CISA did not send urgent or explicit demands to take down posts, nor did it make direct reference to adverse consequences. When read without context, their communications appear to be suggestions that fall short of the standard for coercion. 

But the Fifth Circuit’s understanding ignores the nature of the interactions. The most powerful agencies in the United States went to Big Tech platforms with calls for censorship. Considering it a benign “attempt to convince” strains credulity. 

These groups’ charter mission is to combat foreign enemies. They are concerned with regime change and terrorism, not courting amiable relationships with American businesses. Repeatedly, they have demonstrated a hostility to constitutional restraints. 

Their requests come with the backing of the US Military and the threat of retribution. Our elected officials have referenced their dominance over the Republic. 

 In 2007, the chairman of the Senate Intelligence Committee, Jay Rockefeller, remarked, “Don’t you understand the way intelligence works? Do you think that because I’m the chairman of the Intelligence Committee that I just say, ‘I want it, give it to me’? They control it. All of it. All of it. All the time.” 

Senator Chuck Schumer told Rachel Maddow in 2017, “Let me tell you, you take on the intelligence community, they have six ways from Sunday at getting back at you.”

They used the Covid response to expand their domestic authority. CISA was responsible for dividing the country into categories of “essential” and “non-essential” in March 2020, creating a roadmap for states to impose lockdowns and a modern-day caste system. 

That same week, the National Security Council and the Department of Homeland Security replaced the Department of Health and Human Services as the lead government agencies in the coronavirus response. The NSC appointed Deborah Birx to her role on the Covid response team. Deputy National Security Advisor Matthew Pottinger violated the chain of command to call the first interagency coronavirus meetings that year. He was instrumental in promoting lockdowns and mask mandates. 

The Fifth Circuit failed to acknowledge the critical role the intelligence community played in the Covid response and the assault on the Bill of Rights. By reinstating agencies’ power to partner with groups designed to circumvent the First Amendment, the Court risks the continued erosion of First Amendment freedoms under public-private totalitarianism. 

There may be a legal distinction between the White House’s efforts and CISA’s, but their actions effectuate the same result. The Court acknowledges that CISA’s switchboarding “apparently led to content being removed or demoted by the recipient platforms.” 

The intelligence community carried out a domestic operation against you, the citizen. The Department of Homeland Security siphoned your tax dollars to censor you from questioning the repeated assaults on your liberties. They made you fund the groups that denied you the right to read dissent regarding the origins of Covid, the efficacy of the shots, and the wisdom of lockdowns. 

Until we get further rulings, it appears that process can continue. 

Like Sherlock Holmes, we can deduce quite a bit from the dogs that don’t bark. When Judge Doughty issued his injunction on July 4, the censorship apparatus was irate. The Praetorian Guard of cable news hosts and the New York Times editorial page was outraged. Censorship advocates deliberately misrepresented the order to advance their agenda. The Biden Administration immediately appealed the decision. 

Doughty’s order threatened the continuation of their reign. Their reaction – a primal roar in response to a threat to their survival – confirmed the damage it would impose to the censorship apparatus. 

In stark contrast, the dogs are silent this week. The Biden Administration has not filed an appeal. The New York Times has lacked its typical moral indignation. CNN could barely contain its elation that the new injunction “narrowed the injunction’s scope so that it only applied to the White House, the surgeon general, the CDC and the FBI.”

This time, there is no threat. They can again outsource their dirty work, using private parties to continue their assault on the First Amendment. 

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