And we're back with another edition of the Federalist Radio Hour. I'm Matt Kittle's
senior elections correspondent at The Federalist and your experienced Shirpa on today's Quest for Knowledge.
As always, you can email the show at radio at the Federalist dot
com, follow us on x at FDR LST, make sure to subscribe wherever
you download your podcast, and of course to the premium version of our website
as well. I'm joined today by Janine Unis. She is legal Litigation council
for the New Civil Liberties Alliance, the organization that represented the private plaintiffs in
the jaw Boning case jaw dropping case, at least as far as the ruling
is concerned, Murphy versus Missouri. He joins us now to talk about the
Supreme Court ruling and what it means for free speech in big tech dominated America.
Janine, thanks so much for joining us on the Federalist Radio Hour.
Thank you so much for having me. First of all, this was stunning
to me as a journalist, a long time journalist, longer than I would
like to acknowledge in this podcast, as someone who has made his living off
of the First Amendment, this to me seems like a direct assault on the
First Amendment free speech, those first primary rights that most of us just take
for granted. But what was surprising to me as well, as this was
decided in a six' to three majority decision based on standing. Before we
get there, let's talk about this case and what it ultimately is all about
for those who have not closely followed it. Berthy versus Missouri, of course,
is all about what I like to consider the deep state, big government
getting involved meddling into you know, big tech social network platform so to speak.
More than anything, they are content providers, Let's be clear on that.
But of course, during twenty twenty, the election, the COVID era,
all kinds of blocking of valuable and what turned out to be true factual
information regarding COVID restrictions and you know, election critical election information. The court
ruling today says that the plaintiffs in the case have no standing, even as
they did acknowledge that there clearly could be some abuses here with the federal government
working hand in hand with big tech. What was your first response as a
litigator in this case. Well, so, I wasn't particularly surprised after watching
the argument. In fact, I sort of thought that they were going to
duck the merits question and do away with it on standing. In a way,
I was a little bit pleasantly surprised, which might sound counterintuitive, but
I was worried based on when I saw the argument that they were going to
say the government can do this, and I think that would have been more
devastating for the First Amendment. This poses a lot of problems because it makes
it very difficult to bring a case. So I think Justice Alito had a
very good line in his dissent where he said, if a course of campaign
is carried out with enough sophistication, it may get by, And I sort
of think that's what the Court has greenlighted today. Yeah, so we're going
to get to I think a stinging rebuke by Justice Alido of the majority in
this case momentarily, But how does the Supreme Court, the majority argue that
the plaintiffs that you represent in particular, have no standing in this case.
So basically what they say is that because our plaintiffs can't produce evidence that they
were censored they specifically were censored because of the government, they don't have standing.
They can show that they were censored on the sort of topics that the
government was demanding censorship about, but they were never mentioned in an email,
for instance, and I was worried that the court was going to do that.
I actually had a similar case before this one called ching Gheezi versus HHS,
which wound up in the Sixth Circuit, and that we were dismissed on
that basis. And actually the Missouri and Louisiana who originally brought the suit asked
made to join and represent private plaintiffs because I brought that lawsuit which raised you
know, sort of based on similar premises. So they knew that I was
familiar with the legal arguments and that I believed very strongly in the merits.
So I mean, it's a big problem for the First Amendment. Another thing
to note is that this was in the context of a preliminary injunction, which
is emergency relief. So they also said that, you know, the plaintiffs
couln't show that they would suffer future harm, which is one of the factors
that you look at when issuing a preliminary injunction, that perhaps won't be a
problem when we get to the merit stage, when we go back to the
district court to pursue the case on the merits. Well, it's interesting to
me to say that they can't prove future harm. I think we can take
a look at the future by what has happened in the past. In her
majority opinion, as my colleague at the Federalist Shawn Fleetwood rites Cony Barrett,
Justice Amy Cony Barrett wrote that at this stage of litigation, plaintiffs have quote
not established standing to seek an injunction, as you note, against the named
federal agencies, and that is such, the Supreme Court lacks jurisdiction to reach
the merits of dispute. She goes on to write, the plaintiffs, without
any concrete link between their injuries and the defendant's conduct, ask us to conduct
a review of the year's long communications between dozens of federal officials across different agencies
with different social media platforms about different topics. This court standing doctrine prevents us
from exercising such general legal oversight of the other branches of government. We therefore
reverse the judgment of the Fifth Circuit and remand the case for further proceedings consistent
with this opinion. As you note, we had a District Court ruling on
the fourth of July last year that said, you know, this appears to
be among the more egregious assaults in the first Amendment that we've seen. We
had a Fifth Circuit that said, yes, we agree with you, but
we're going to rain this decision in just a bit to a handful of affecting
a handful of government agencies. But again, for those who have followed this
case, it is I think the word is galling to suggest that nobody was
hurt in this case. The American public in general was hurt in this case,
right, well, sort of to play devil's advocate, and obviously I
agree with her with you, but I guess she's saying, you can't show
that you were hurt because of the government. You might have been hurt because
of the platforms, but they did have their own content moderation policies. They
were censoring people. But this was also based on some factual errors. And
as you noted in the portion that you read, she basically said, we
didn't conduct the review of the record that the Distort Court did. The Distort
Court really got into the facts, it really understood it. This is a
very very voluminous record that shows dozens of agencies, probably close to it at
this point, close to one hundred federal officials that we know of, who
were colluding with coercing, pressuring, influencing the companies to effectuate their censorship desires
essentially. So I and you know, when I read the way they recounted
the facts, I thought, Okay, it sounds like they read the government's
brief and just believed everything they said. And you know, I don't think
that the government portrayed the facts accurately. There were numerous occasions on which the
platforms and the majority got this wrong. I think the platforms said, basically,
we're going to censor more people, We're going to interpret our policies more
broadly, or we're going to change our policies because we're under pressure from the
government, especially the White House, but federal agencies as well well. I
must tell you it makes me worried about the Chevron case up if they're so
easily going to defer to the experts of the government, and that's what the
Chevron case is really all about, is reigning in the government experts, so
to speak, and not believing what the experts have told us, And really,
isn't that, Janine. At the core of this case is that we
were told by the government experts. The government experts told the social media outlets,
the content providers in social media what to do, what not to do,
social media outlets in so many cases followed along. I mean, this
really is the core issue behind believing the experts during COVID and the elections and
the lockdowns and all kinds of different issues. That's right, Although I wouldn't
be as worried about the Chevron case because that argument went much better for the
plaintiffs, which by the way, represents some of those too, so more
anticipating that decision. Yeah, and for full disclosure, your office, your
organization also represents the Federalist in a particular case as well, so we should
note that. Right, we'll talk about your organization in the many different areas
of liberty issues that you're dealing with. But obviously the stunning case for the
First Amendment is this. But no, again, speaking to the core issue
here is that now the government seems to get a free pass to decide what
is again disinformation and appropriate information. Well, just to give you a little
bit of hope, first of all, we are not giving up. So
the case is still you know, we're pursuing it on the merits stage in
the district court, and we want to get more discovery, and you know,
to the extent they're saying, well, you don't have this. You
can't show that Jill Hines, for instance, is one of our plaintiffs who
they said became the closest to proving standing. You can't quite show that causal
connection between what the government was demanding and her being censored. Well, we're
going to go back and we're going to try to get those documents. And
the district court has shown that it believes in our case and it saw that,
you know, it said this is the most arguably the most massive attack
on free speech in the history of the United States, which I agree with
the you know, the federal government was censoring entire narratives, entire lines of
thought. If you questioned the efficacy of the vaccines in twenty twenty one,
even if you are a vaccine expert like our client Martin Kuldorf, you would
be censored on social media as he was. The fact that he can't have,
you know, produce an email from a government official telling Facebook or Twitter
to censor Martin Kuldorf. Is that that is you know, they're saying that
sinks his standing is absurd. How is he supposed to get that without without
you know, much more discovery. I mean, they're making it very difficult
to bring the case, but they're not making it impossible. And there so
one of the reasons I sort of anticipated this was, I don't know if
you were aware that the so RFK Junior has moved to join our case in
the district court, and his motion was granted. We didn't oppose it.
He sought to join in the in the Supreme Court at a late stage and
we did oppose the x. We said, basically, you know this is
we're way too far along for you to join. And the court denied his
application, but Alito dissented and basically implied, some of my fellow members of
the court might have issues with standing, so you should let him join to
avoid losing the case on that basis. And for those who don't know,
there were explicit emails from officials within the federal government demanding that RFK Junior be
removed from social media alone, and then he was mentioned as a member of
the Disinformation doesn't, and they were then the disinformation doesn't which included him,
was then removed. Just amazing, And so do you believe that had Alito's
Alito's take on this prevailed, if if RFK Junior had been allowed into the
case, with that information allowed into the case, that that could have made
a difference in the outcome. I think it very well could have, because
he had the kind of information that they're saying our plaintiffs lacked, like he
was explicitly mentioned, as you know, the White House demanding a takedown of
him, and then he was taken down. And another person is Alex Berenson,
who has his own lawsuit. He got internal Twitter emails showing where they
were talking about how the White House is putting us under pressure to remove him
from Twitter, and then he was taken down even though he had received assurances
from Twitter that his account was safe. So he's another person. He you
know, he has his independent lawsuit. He would probably be deemed to have
standing in this case. It's you know what is so difficult for those of
us who are toiling in the fields of journalism every day. My colleagues and
I can tell you that the Biden administration has been absolutely horrible about following Freedom
of Information Act laws. It refuses to turn over information, It's been subpoena
to turnover information, still refuses to turnover information. We have myriad examples of
that. So how do you make a case against a government for suppressing speech
when that government won't turn over the information that you have sought. Well,
that's I mean, that's an excellent question, and that's the issue. I
mean, they essentially put you in a catch twenty two. And that would
be so even if the government wasn't trying to subvert these Foyer requests and that
you know, the district court in my case in Changizi basically said, you
know, you would need those kinds of emails. Well, how are you
supposed to get those emails if you throw it out before discovery? We were
at least saying, just give us, you know, some preliminary discovery,
let us prove that we can. Let us get these you know, documents
and see if we can prove more of a direct causal link. But if
you toss it at the free discovery, then we're never going to be able
to get that. So basically, I mean Alito's right that what This case
holds is that if the government does its unlawful, censorious activity in the darkness
and nobody knows what's going on, they can get away with it. Janine
Unice is Litigation Council for the New Liberties New Civil Liberties Alliance, and the
organization represents the private plaintiffs in the jaw owning case Murthy versus Missouri. She
joins us on this edition of The Federalist Radio Hour, Let's get to Alito's
stinging descent. I had plenty of examples thanks to my colleague Jordan Boyd,
who wrote a great piece on that today at the Federalist. She notes Justice
Samuel Alito mince no words in his public evisceration of the Supreme Court six y
three Murthy the Missouri decision to green light the Biden administration's flagrant First Amendment violations.
In one part of the dissent, Alito rights, we are obligated to
tackle the free speech issue that the case presents. The Court, however,
shirks that duty and thus permits the successful campaign of coercion in this case to
stand as an attractive model for future officials who want to control what the people
say. Here and think I would imagine as an attorney for the plaintiffs in
this case, you would wholeheartedly agree with that. But the bottom line here
is what does the future hold for free speech and the distribution of information in
this country based on what we've seen in this ruling, Well, your right
to be pessimistic about the future of free speech. I mean, the court
has essentially green lighted the government doing, you know, instrumentalizing these companies in
order to silence fees. It doesn't like now one, you know, I
try to look for some rays of hope. Another ray of hope among those
I've mentioned is that there was some implication that it would have gone differently if
we had sued the private companies as state actors. Now we didn't do that.
It was obviously a theory that we've floated, but we just don't.
As a matter of our mission, we'd only see the government, So we
didn't do that. Other people might be able to do that, and that
would that would create create an incentive for the companies not to just go along
with this kind of thing, because then if they can be sued under the
theory that they're effectively state actors, depriving people of their constitutional rights. They
could lose a lot of money. So I think that's another way that things
could go to sort of get the government out of the business of social media
censorship. May be the most encouraging thing that I've heard so far in our
conversation is that I think a lot of people think that the is over,
and it certainly makes it very difficult to move on the standing issue that the
Supreme Court decided. But as you noted, this is not over. You
plan to bring up some key evidence, important points when this goes back to
the lower courts. Let's talk a little bit about this that aspect and where
you go from here legally speaking. Sure. So, Actually I don't know
if you were aware of the emails that came out during doctor Warren's's congressional testimony
about a month in a row. Yes, yeah, he had basically had.
He was Fauci, doctor Fauci's senior advisor, and he had a lot
of emails saying that you know, Tony clearly referring to doctor Fauci, uses
secret back channels in order to ensure that he doesn't have to comply with Foyer
requests, and Tony is too smart to use his nih email, he's his
Gmail and hand server. So I actually filed emotion last week in the District
Court saying that we should get more discovery on Fauci and various actors that he
was communicating with, apparently using Gmail based on this evidence, because if this
appeared to be mostly related to the lab leak theory that he was involved in
suppressing, but if he was using Gmail and email deletion, that was another
thing. Doctor Warren says that they deleted emails. If he was using those
as tools to avoid having to reveal controversial or embarrassing or unlawful activity that he
was involved in, then there's every reason to believe that he was involved in
censoring like the Great Barrington Declaration which two of our clients wrote, or other
kinds of things about COVID, that he would be using Gmail for those emails
and deleting them too. So we already filed that motion last week saying we
should get discovery on that, and we will continue to do that. In
fact, we can put forth to the District Court that now discovery is even
more important because we need evidence that our clients were censored at the behest of
the federal government. Ultimately. I think that's interesting because there have been a
lot of details that have come to light, a lot of emails, a
lot of communications, a lot of very troubling communications from the government that have
come to light since the filing of this case. As you mentioned, you
know, the internal documents about Anthony Fauci. What a genius he was,
of course for suppressing this information from the public. I'm curious, do you
think ultimately the government could help in your case, could help restore freedoms on
this line, because we have clearly conservatives in the House in particular going after
this information that I think, as you noted, could be very beneficial to
your case. Yeah. Sure. So it was funny I was slated to
testify before the Small Business Committee about actually the case in which we represent the
Federalist was it was the main one, but this case was touched upon a
little bit, and it started at ten am. So this decision came down.
I saw, oh, like right as I was supposed to start testifying
that it had come down, And that was one of the things we emphasized
in the hearing. Well, like, this makes Congress's job all the more
important. We need we clearly need check on the executive because they're continuing to
engage in these sorts of activities. How much worse does this get now that
basically the signal is sent to the Biden administration, which was very much engaged
in this, and of course they were engaged in this under the Trump administration
too. Let's be fair about it. There were you know, government bureaucrats
suppressing information in the twenty twenty election critical to the voter. In the twenty
twenty election, we think about, in particular the Hunter Biden laptop. That
remains a key point that you know, big tech and the corporate media cabal,
the accomplice media finally now decided that why that laptop is for real?
Wouldn't that have made a difference at some level, don't you think in late
October of twenty twenty. Oh absolutely, yeah, yeah, no, no,
no, go ahead, because I think what occurred then with the laptop,
with the COVID stuff, all of the policies of the government, I
think extremely informative for what lies ahead in the Biden administration. Unfortunately, six
members of the Supreme Court didn't think so much on that front. Yeah,
So a few things there. First of all, I'll clarify that I say
this, I'm actually not a Republican and I'm not a Trump supporter in any
way, But to be fair to his administration, they were not engaging in
this the way the Biden administration was or at all were sure. Sure,
yes, there were agencies that I think were acting sort of rogue or even
contrary to the Trump administration's interests because they were covering up the Hunter Biden laptop
story and that sort of thing. You know, Biden took office and then
sort of used the White House to effectuate this censorship regime and started coordinating with
the agencies, and they even established this disinformation government at sports. So I
mean, if I were a Republican politician, and certainly if I were in
the Trump campaign, I would be making hay out of this and saying that,
you know, the Biden administration is going to continue, this is going
to make it worse, and we're going to stop the censorship. That seems
to be a political a political wedge that Republicans could use. Do you think,
from all that you have experienced, all the documents that you've seen,
do you think that this ruling could ultimately affect November's election I think so if
it's publicized enough, and I think if, as I said, if Trump
uses it to his advantage. I think there are a lot of people who
have a real problem with the censorship. And I'll say, I mean,
I'm just using myself as an example. I you know, I have a
lot of with both Biden and Trump, I was sort of inclined not to
vote for either of This might make me lean a little bit more Trump because
I'm so opposed to the censorship. So a lot of sort of independent or
undecided voters out there could be swayed, I think on this basis interesting.
So what does this mean to the for the groups that were really involved in
this level of suppression of speech suppression? I mean, I think about this
little agency, little known until the last few years in the homeland Department of
Homeland Security, you know, that had disinformations are for goodness sakes, they
had to in essence invent a word about mal information or information that the government
would rather you not have. Not that it's not factual, but it's it's
uncomfortable for the government for you you to have that information. The government feels
that that's inappropriate information to have. This decision I would imagine must only embolden
those agencies to do what they've done. That's right. In fact, I
was going to use the term embolden before you, So I can't. I
mean, I can't agree more unfortunately, And I think again, what the
signals is that absent to change in administration, this is going to continue and
get worse. And I do you know, I think I hope that Trump
takes this and you know, makes the stand, says we're not going to
continue this, and is truthful about that, and doesn't because that would make
a really big difference. And I think at this point we might need a
solution like that, since it's clear that the Court has not has not stood
up for our rights. I would say that great minds think alike. But
I don't want to insult you putting my mind in the arena of your mind,
because you have been at the center of some fascinating and vitally important cases,
liberty cases facing this country and it's citizens. And I wanted to talk
to you a little bit more before we close the conversation about what the Litigation
Council for the New Civil Liberties Alliance excuse me, what the New Civil Liberties
Alliance is doing you as litigation council for that organization, the many areas where
you're fighting for constitutional principles. So what we mostly do is fight the administrative
state. So a lot of what we do has to deals with separation of
powers and executive agencies doing things that they really shouldn't be doing and maybe Congress
could do, but they can't. And this just happens all the time where
they're effectively making laws that deprive people of their rights. So we have cases
dealing with the SEC. For a long time, the SEC was able to
have like just administrative tribunals where you were tried by an administrative law judge who
wasn't independent. We've been challenging that kind of thing with some success, the
case called Relentless, which is challenging Chevron judicial deference to executive to agencies.
That's our main mandate. We also do pure free speech stuff. So I
had a case just challenging California's AB twenty ninety eight, which punished doctors for
spreading COVID misinformation so called to patients, which just met meant giving in diffart
from the states when it came to vaccines and asks and that kind of thing
that was a state law. It was not terribly usual for us to do
that kind of thing, but I brought that challenge with success. Actually,
we got a preliminary injunction there and then the legislature appealed the law. So
we have a variety of interests, but mainly we're interested in protecting Americans constitutional
rights. So many liberties are on the line. But I just back to
the Chevron case again. I don't know how, after what we as Americans
have survived in this country over the last four years or so, I don't
know how a Supreme Court and I mean concerned privatives liberals alike on that court
could ever simply just defer to the so called experts. Again. Yeah,
I mean, you make an extremely good point, the idea that they've proven
that they're completely inept. And one of the points I think it's important to
make is our clients, two of them, Jay Bondichari and Martin Kuldorf,
who co authored the Great Barrington Declaration. They are epidemiologists at Stanford and Harvard.
They disagreed with lockdowns as an approach based on their knowledge of epidemiology.
They were censored heavily on social media and other forms of media, so people
like them, even extremely qualified people who disputed the government's approach approach were shut
down in silenced, So the public got the illusion of a consensus that didn't
actually exist, that most people of most of the public thought all experts think
we should do lockdowns and mass mandates and vaccine mandates. And there were actually
lots of really smart, qualified dissenters, but they were silenced. And it
turns out that that had to do with the federal government's actions. And I
think that should horrify all Americans. Where do these folks go to get their
reputations back? That's a question. I mean. Martin actually publicly revealed that
he had been fired from Harvard for refusing the vaccine after he had a bad
mouth of COVID and had natural immunity so he didn't want to get it.
He saw that the risks is outwing the benefits. At that point, Jays
suffered horrible persecution at Stanford, and I think things are better now. But
you know, I think a lot of people really admire them and have seen
their courage and that they were right, and you know, they were.
They ended up being right about everything basically. So I think they have followings,
but it's been difficult for them over the years because they faced so much
hostility. It all feels like the Red Scare to me, or at least
the perceived Red Scare. If you've followed history, you know some of what
happened with communists in this country was you know, we can argue about the
means and the methods, but there was a real concern about communist getting deeply
involved in some of our institutions. But you know, some of the abuses
that had occurred in the Red Scare remind me that the more things change,
the more they seem to be the same. Right. I mean, I
will always be fighting this battle. I think final question for you is I
get back to Murphy and the Missouri and that is, do you think this
case, and you know all of the details surrounding it, all of the
information that's come out involving what big Tech did, do you think there'll be
a little more circumspect, at least in the commercial interest moving forward. Yeah,
And as I alluded to earlier, I think that people could bring lawsuits
of arguing that they were effectively acting as arms of the state. You know,
they can't do this. They can't be doing the government's bidding and then
saying like, oh, we're private companies. So I think people who are
censored on Twitter and other social media platforms can and should sue, especially if
they could tie like they're living to it, because they can presumably get damages
and that might deter the companies from engaging in this kind of you know,
so called content moderation. The other thing is the Net Choice case cases haven't
come down yet. Those have to do with state laws from Texas and Florida
that basically prohibit the platforms from censoring people for expressing certain viewpoints. I expect
those will be decided tomorrow or Friday, or maybe early next week because that's
the end of the Supreme Court's term. So that's another way that we might
be able to deal with this. Are you hopeful in those cases that there
will be checks on speech suppression? Not particularly? The Florida law had some
problems. It favored politicians over regular so I think there was argument that it
was sort of viewpoint discrimination on its own. The Texas law I think was
much better. I the argument went better than I thought for the states,
but I still think it might be an upheld battle, but nevertheless, I'm
not totally hopeless. So maybe they'll the court will come down with something that's
a little bit helpful. Well, I must tell you I'm feeling a little
more hopeful after our conversation today that this fight is not over, nor should
it be. There's got to be other means to protect speech in America,
and it sounds like that is exactly what you intend to do. Yeah,
that's great, it's not over. Well. I appreciate you being here joining
us on the Federalist Radio Hour podcast, but I particularly appreciate the fight that
you are engaged in. It's so very critical. Thanks to my guest today,
Janine Unis, Litigation Council for the New Civil Liberties Alliance. You've been
listening to another edition of the Federalist Radio Hour. I'm Matt Kittle, senior
correspondent at the Federalist. We'll be back soon with more. Until then,
stay lovers of freedom and anxious for the fray.