How are we to understand scientific consensus? Who is authorized to speak on behalf of doctors and scientists as a whole, and how do those who present themselves as messengers of the majority reach their material findings? In the aftermath of the COVID-19 pandemic, these questions, and others like them, have important consequences for the future of American science and medicine.
The complaint in Missouri v. Biden arises from the controversy surrounding the Great Barrington Declaration, a declaration written in October 2020 and authored by renowned epidemiologists criticizing contemporary, aggressive COVID-19 policies. Plaintiffs allege that the federal government coerced social media companies to silence opposing viewpoints under the pretense of halting “disinformation” and “misinformation” thereby violating the First Amendment.
Hoeg v. Newsom is born of similar allegations at the state level. On September 30, 2022, the California State Legislature passed Assembly Bill No. 2098 that purports to rein in “disinformation” and “misinformation” about the COVID-19 virus and vaccines. The Bill states that “It shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.” Plaintiffs – all physicians licensed by the Medical Board of California – allege that the Bill violates their First and Fourteenth Amendment rights by interfering with their ability to freely communicate to patients and dissent from mainstream viewpoints in their professional capacity as trained doctors.
Observers have noted that achieving scientific consensus on an emergent and politicized disease is very difficult. For example, the purported scientific consensus on masks, lockdowns, natural immunity, and various other COVID-related matters has remained in flux over the past three years. Some argue that government attempts to stifle debate are concerning and illustrate the purpose of the First Amendment.
Jenin Younes is Litigation Counsel for the New Civil Liberties Alliance (NCLA) and represents plaintiffs in both cases. Please join us as Jenin delivers updates on these cases and discusses the ongoing power struggle over the dissemination of medical information.
Jenin Younes, Litigation Counsel, New Civil Liberties Alliance
[Moderator] Margaret A. Little, Senior Litigation Counsel, New Civil Liberties Alliance
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Sam Fendler: Hello, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I'm an Assistant Director of Practice Groups with The Federalist Society. Today, we're excited to host “Government Censorship, Disinformation, and Scientific Consensus — A Litigation Update on Missouri v. Biden and Hoeg v. Newsom,” featuring Jenin Younes. Jenin is litigation counsel for the New Civil Liberties Alliance and represents plaintiffs in both cases that we'll discuss today.
Our moderator is Peggy Little. Peggy Little is Senior Counsel at New Civil Liberties Alliance and serves as an executive committee member of The Federalist Society's Litigation Practice Group. If you'd like to learn more about our guests, you can find their full bios on our website, fedsoc.org. After Jenin gives her opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window and we'll do our best to answer as many as we can.
Finally, I'll note that, as always, all expressions of opinion today are those of our guest speakers, not The Federalist Society. Peggy, thank you very much for joining us today, and the floor is yours.
Margaret Little: Thank you. Today, we are going to be focusing on two very large and current topics: government censorship, disinformation, and scientific consensus. We'll be focusing on two cases, Missouri v. Biden and Hoeg v. Newsom, and our speaker is Jenin Younes. She represents renowned epidemiologists and co-authors of The Great Barrington Declaration, Drs. Jay Bhattacharya and Martin Kulldorff, as well as two other plaintiffs in the Missouri v. Biden case. That is a case that uncovered the Twitter Files and continues to yield evidence of a widespread censorship campaign by the White House and senior officials throughout the Biden administration to censor viewpoints that conflict with the government's messaging on COVID-19.
Jenin also represents five physician plaintiffs in Hoeg v. Newsom, which is challenging the state of California's infamous Assembly Bill 2098, which empowers the Medical Board of California to discipline physicians who disseminate information regarding COVID-19 that departs from the "contemporary scientific consensus." In late January, Jenin secured a preliminary injunction enjoining California officials from enforcing that law. Jenin's work has been at the forefront of these questions.
Jenin, let's start with some background. Tell us how you came to know Dr. Jay Bhattacharya and Martin Kulldorff.
Jenin Younes: Thank you so much, Peggy. So I was actually -- Two years ago or more now—two and a half years ago—I was a public defender in New York, and I had become active in writing against COVID lockdowns and other mandates related to COVID restrictions. I ended up writing for an organization called the American Institute for Economic Research, which invited Drs. Bhattacharya and Kulldorff there to strategize with other people—journalists, lawyers—who are like-minded on the topic about how to fight back against this and get the idea out into the public square that lockdowns are not accepted, they're not the general strategy accepted for dealing with pandemic, that there was actually no scientific consensus in the scientific community that that was the proper approach.
So I ended up going there and meeting them. I was there the weekend they wrote the Declaration, and we've continued to stay in touch during my time at NCLA. So that's the very beginning. I then brought a case called Changizi v. The Department of Health and Human Services. About a year ago, I filed the complaint, and there were three plaintiffs there: Dr. Changizi, who's a cognitive theoretical scientist, and two lawyers, Michael Senger and Daniel Kotzin, who had all tweeted against COVID restrictions since the very beginning, since March of 2020.
We noticed that they and other people had started getting suspended at a much higher rate, beginning about the spring of 2021, and this was at the same time that members of the Biden administration, like the president himself, his then-press secretary Jennifer Psaki, Surgeon General Vivek Murthy, began making statements saying that the tech companies were responsible for people's deaths from COVID if they didn't censor so-called misinformation about it, especially about the vaccines, but also other things, like lockdowns and masks.
We suspected that the fact -- and saying that the tech companies should and would be held accountable if they didn't do more to stop the spread of this misinformation. We suspected that the timing wasn't purely coincidental, and the more I looked at it, the more I thought it was clear that the tech companies were reacting to the threats of the government and were ultimately responsible for the suspensions and other censorship.
That, of course, presents a First Amendment problem because, if the government is using the private companies to do what it can't do directly, which is censor views on topics like COVID that differ from the government's, that's state action, and in my opinion, is a First Amendment violation.
Margaret Little: Okay. So what happened in that first case that you brought for Dr. Changizi?
Jenin Younes: So, unfortunately, the judge granted the government's motion to dismiss that case on, coincidentally, May 5th of 2022, the same day that the Attorneys General of Louisiana and Missouri brought a similar lawsuit on behalf of the citizens of their state. So they made very similar claims that the federal government had been directing social media censorship and that it was a First Amendment violation.
This lawsuit was actually broader. So it wasn't just about COVID. It's also about climate misinformation, the election, Hunter Biden laptop. It encompasses a lot of different topics. They wanted to have private plaintiffs join, and they asked me to represent the private plaintiffs, first because they had used parts of my complaint. They thought I obviously understood the issue, was very interested in it. And also, I had personal relationships with the plaintiffs, so it made sense for NCLA and me to represent them.
Margaret Little: And so, the status of the first case that you brought, were you allowed discovery?
Jenin Younes: No. No, and that's one of our main -- So it's on appeal right now in the Sixth Circuit, and one of the points we're making is that we weren't going to have access to internal communications, like between people and government or the government and the tech companies, without discovery. So how are we supposed to know exactly what's going on with respect to the government directing the censorship?
All we are arguing is that what the government was saying they were doing, they were doing, and at least that's reason enough for us to get to discovery and find out exactly what was going on. And in fact, we've gotten significant discovery in Missouri that has showed that we were right.
Margaret Little: Yeah. So how did that change when you joined Missouri?
Jenin Younes: So that we filed that case in the Western District of Louisiana, and the judge there granted preliminary injunction-related discovery, which is quite rare for judges to grant discovery at that early stage. So we've actually been in discovery. We're finally wrapping that up. We've been in discovery since like July or August of 2022, so quite a long process.
We initially got a lot of discovery in the form of documents, like text messages, emails, mostly between the tech companies and government employees, and this showed a high level of collusion. Especially CDC, DHS, you have very high-up officials who are telling the tech companies, "You should be censoring this type of post from this type of poster." Even the specific person should be kicked off the platform, like Robert Kennedy is one, the Disinformation Dozen, Naomi Wolf specifically named. So what you have is the government telling the companies to censor certain types of material and certain types of posts. Go ahead, Peggy. Sorry.
Margaret Little: So why don't you give us the highlights? And this is a case that I think people are very, very interested in and would like to hear, with some specificity, maybe the top six connections you were able to uncover between direction from government officials to the social media executives and what they said about what they should do. And in that context, you might also help us understand the difference bans, shadow bans, deboosting, and deplatforming.
Jenin Younes: Sure. Sure. So there's a lot of telling them to remove certain kinds of posts, especially about the vaccines. Now, some of it, like most of us would recognize, is not valid scientific information, like the vaccines have microchips, the vaccines will cause you to get cancer. I don't think there's any evidence of that so far. But then it veers into posts like the vaccines might cause menstrual problems, which we now know to be true, so the CDC was actually telling the companies to censor that type of thing.
So the government's defense thus far has been that, obviously in light of all these emails, they can't say that this wasn't happening, that they weren't working with the companies, but they're saying, "Well, we were just helping the companies. The companies had misinformation policies. We were just helping them to effectuate those. We were telling them -- We were giving them our scientific advice as the CDC about what should be considered misinformation."
I think that argument falls flat in light of the public threats that were made by members of the administration that the companies would be held accountable for regulation or other legal consequences, but the highlight, or the big thing for me, was a bunch of emails came out not so long ago at the beginning of January from someone in the White House named Rob Flaherty, who's the director of digital media strategy, I believe is his title.
And at the beginning of 2021, the first three months or so, he was sending the tech companies, especially Google and Facebook, extremely aggressive messages, saying things like, "You're not doing enough. People are dying because of you. You're increasing vaccine hesitancy. You're the problem. If you don't start censoring vaccine misinformation, we're really going to do something about it."
And then the tech companies are responding and saying, "Okay, okay. We're changing our policies. We're taking down more posts." So this is quite obviously the companies reacting to the government's pressure, coercion, however you want to put it. This is obviously not some kind of collaborative situation, which I still think should be considered a First Amendment violation. I don't think that the government and private companies should be able to work together to censor people, but it's obviously a stronger case when it's government coercion, which is quite obviously what was going on here.
And another thing that Rob Flaherty said was, "I don't even care if it's even true content. If it's stoking vaccine hesitancy, it should be taken off." So that presumably includes people telling stories about vaccine injuries, which we know has happened. I mean, we don't have exact clarity on the numbers. And I think that is quite disturbing. I mean, it's all quite disturbing that they're not even, at this point, pretending it's just about getting rid of misinformation.
Margaret Little: Right. Now, there is a point, though, as you say, to some need for moderation, if there is truly -- Well, let's put it this way. The social media sites do have to regulate some content for porn, for other sorts of things. And so, where do you think they overstep the line here?
Jenin Younes: Well, porn and stuff like, if people were exchanging messages about selling drugs, that would be illegal anyways. That's illegal. I mean, when things are illegal, they're obviously not protected, and I obviously don't have a problem with the tech companies removing them or necessarily even the government being involved in that if the government's trying to -- Sort of relatedly, DHS has played a role in trying to combat foreign actors from interfering with our elections, just trying to manipulate Americans. That's sort of a fuzzy line. I can understand why the government would be involved there. I think it's a little harder to delineate exactly where that line is.
But here, we're talking about people just expressing opinions that differ from the government's. Some of those opinions are patently false, like the vaccine has a microchip. Some are not. "I had a stroke after getting the vaccine." But all of that is protected First Amendment speech, and so the government should certainly not be playing a role in censoring it. And if the companies want to censor it on their own, I think that's a long conversation.
And I know people -- I tend to think the libertarian conservative community is pretty divided on that issue, whether the companies should be able to do this. Since they are so powerful and they sort of control the modern public square, it's difficult, but what I think we can say for sure is the government should have no role in this,
Margaret Little: The plaintiffs that you represented, did they experience some of this interference with their expression of opinion, and can you discuss that?
Jenin Younes: Yeah. Martin Kulldorff, for example, who was an epidemiologist at Harvard and, incidentally, one of the top-cited infectious disease experts and, I think, vaccine safety experts in the world, had tweeted something like, "Not everybody needs to get the vaccine. Children don't need it, people who've had COVID before." And that was marked as misinformation, and I think only he could see it. He had similar experiences on LinkedIn, too, for similar types of things.
Jay Bhattacharya, an epidemiologist at Stanford, was placed on a Twitter blacklist. We actually learned that from the Twitter Files. So he was blacklisted immediately, which meant that his account was downgraded, so his tweets weren't directly censored, but this is what shadow banning is, which you mentioned earlier, where the algorithm then -- I don't know technology that well, so I might not be using words exactly the right way, but the algorithm kind of downgrades your account so your tweets appear less to other people. So that means your influence is hampered, basically.
Margaret Little: Okay. And there's a lot of ways this can happen, shadow banning, deboosting, deplatforming, demonetizing, which you're discovering a lot about these days. What would you say was the most disturbing pattern that you found, and out of which agencies was that generated?
Jenin Younes: Yeah. So what I mentioned coming from the White House, Rob Flaherty, I think was probably the most disturbing because it was the most aggressive, and it was the most obvious that this was the White House telling the companies do this and the companies clearly reacting, clearly saying, "We're changing our policies because, more or less, you're putting us under pressure." And, of course, the true content thing.
But as far as the agencies, CDC and DHS played a very, very heavy-handed role in this. I would say CDC especially with the COVID misinformation, and then DHS has a role with the election misinformation, but they were even playing a role with the COVID misinformation. So there were emails from DHS employees saying that questioning masks should be considered a national security threat and that should be removed. I mean, the idea that we have the Department of Homeland Security saying that Americans who question masks pose a national security threat and their tweets should be removed, I mean, should be stunning to most people, I think.
Margaret Little: Now, is this discovery still ongoing?
Jenin Younes: So it's wrapping up right now. So we got all these emails. It was about 16,000 pages of email, so it's quite a lot. The judge, after that, based on what we saw in those emails, ordered depositions of some people that we requested. So probably the most interesting to most people is Anthony Fauci. We deposed him in November of 2022. There's been a little bit of a fight about some other high-ranking officials.
So initially, the judge ordered Jen Psaki, the former White House press secretary, to be deposed as well as the Surgeon General, Vivek Murthy. There was a fight in this Fifth Circuit, the Court of Appeals, and the jurisdiction, and so some of that didn't end up happening. But we deposed Carol Crawford at the CDC, who is like the leader on digital media. She's the one who was in very close touch with the social media companies and constantly telling them what kinds of things to censor, what kinds of posts should come down.
And then, Fauci, obviously, was a very interesting deposition. But now we're finally wrapping up. I believe there should be a hearing on the preliminary injunction probably within the next month, maybe two months.
Margaret Little: In these depositions or otherwise, maybe in public statements, have the various officials involved offered any defense of why this was okay to do?
Jenin Younes: Not really. Most of them have sort of denied that it happened. So Fauci himself said that he's too busy running a six-plus-billion-dollar institute to have time for social media, so he denied having any involvement in any of this. Carol Crawford at the CDC did acknowledge that this was going on. She couldn't not because there are hundreds of emails back and forth where she's telling them what to censor, but she didn't seem to -- She didn't think there was a problem with it. What she basically said was, "No, the companies, they had a misinformation policy. They were just looking for our guidance. We were giving it to them." Yeah.
Margaret Little: Okay. Are those materials available for people to see anywhere?
Jenin Younes: A lot of them are. They're on our website. I believe they're on the Missouri and Louisiana Attorney General's website. We got, as I mentioned, about 15,000, 16,000 pages. So the judge's order says we can't release anything that has people's emails or phone numbers, so we weren't able to get everything redacted just due to the sheer number of documents, but we used the most interesting ones. Those are redacted. Those are part of filings, so those are available on the websites.
Margaret Little: Great. And what do you think is going to happen at the hearing? Do you have any predictions?
Jenin Younes: Yeah. I mean, the judge clearly, based on his earlier rulings, seems to think this is a very big problem. You know, there have been these decisions in the interim; for instance, the one granting discovery. He's indicated that if we think what's going on is going on—as we've found out more and more, it turns out we were correct—that that would be a First Amendment violation. So I can't imagine that he would order all this discovery if he didn't think that our theory was sort of accurate.
Margaret Little: Okay. And tell us a little bit more about some of the effects on the people that you represent in Missouri v. Biden. What has happened to their lives in a way that people would want to know about?
Jenin Younes: Well, I mean, they've suffered immensely, especially Drs. Bhattacharya and Kulldorff. Dr. Bhattacharya actually wrote a very compelling piece in Tablet about a month ago about his experience at Stanford University where he was really maligned. He was afraid for his life because he thought that lockdowns were a bad idea. People were threatening him, and Stanford really did nothing to protect him or his right to speak. They didn't facilitate any kind of dialogue on lockdowns. They actually held a panel about COVID policy and had nobody who opposed lockdowns. And when he asked them why, they said, well, it was just too upsetting to most people, too upsetting to even hear a point of view from an epidemiologist who thinks that lockdowns are a bad idea. And obviously, he's had his material censored, which is upsetting.
So Kulldorff as well has had a difficult time. I don't think I can go into it any more than that, but there have definitely been personal repercussions to their activities. And then, being censored as a scientist is very upsetting. I think it's been hard for them to see that the country and the government does not actually have an interest in a valid or real debate on these topics but has really only wanted to have one side decide what the policies are without any input from people who dissent.
Margaret Little: Right. Well, that certainly is unfortunate. There are two other plaintiffs along with the Drs. Bhattacharya and Kulldorff. Can you tell us a little bit about them?
Jenin Younes: Yes. Aaron Kheriaty is a psychiatrist. He was a professor of medical ethics at UC Irvine until he was let go for not getting the vaccine, even though he had natural immunity. So he actually brought a case some people might have heard of against the university, unfortunately lost. And Jill Hines runs an organization in Louisiana called Health Freedom Louisiana, and they fight mandates, all of these "health-related" mandates.
Margaret Little: Is there any evidence that the government has backed off from some of this delisting or shadow banning or whatever in terms of --
Jenin Younes: No, there isn't. And actually, to the contrary, it looks like they're almost -- They're not embarrassed. In the middle of all of this stuff coming out in the Missouri case about Rob Flaherty's emails, these other things that I would be very embarrassed about it if I was in the Biden administration, his current press secretary, Jean-Pierre, was giving talks about how -- or giving press conferences saying that they had their eye on Twitter, especially Elon Musk. They were going to make sure that Twitter behaved responsibly and continue to censor misinformation. So there's not been, I don't think, any recognition or concern for what's going on here.
Margaret Little: How many social media outlets are involved here?
Jenin Younes: Well, we don't know. Certainly the big ones: Facebook, Twitter, YouTube, Google, which are owned by the same -- Instagram, owned by Facebook, too, LinkedIn. But I think it probably goes beyond that. Even Pinterest, Snapchat, I think there's some government involvement there. We don't know the full extent. So the judge actually ordered third -- One thing I forgot to mention earlier: The judge actually ordered third-party discovery on the tech companies. So we got some stuff from them as well, and what that actually showed was that far more government officials and agencies were involved in this enterprise than we had known previously.
The government gave us different answers and left out a bunch of people in agencies. I mean, that's pretty solid evidence that they weren't forthcoming. They were trying to downplay this and not give us the names of lots of people. So it's actually through the tech companies that we've learned a lot of this, and that's allowed us to get more discovery. And because they weren't honest from the beginning, the judge has, I think, been questioning their honesty and so has been more willing to order discovery because it's clear they're not forthcoming.
Margaret Little: That's certainly unfortunate to hear. How long do you think this litigation will go on? Do you have any sense of whether it's going to be one of these cases that goes on forever, or do you think that that the courts will offer some correction and relief more quickly?
Jenin Younes: Sort of both things. Given that it's been 10 months in the preliminary injunction phase, I think it's likely to go for a really long time until it's finally wrapped up. I do think there'll probably be a ruling on the preliminary injunction before the summer would be my guess. So we'll have some indication and some kind of legal ruling, even though it's a preliminary injunction and not a final decision, but that could get appealed. I think we'll get an indication of where the courts are going or what they think of these arguments and ideas before years have passed, but I'm guessing the case won't wrap up or finished completely for a number of years.
Margaret Little: Okay. Now we have a second case to discuss because I want to leave plenty of time for questions. And so, we’re now going to turn to Hoeg v. Newsom, and as I indicated at the beginning, this has to do with a statute. Jenin, can you start by telling us about that statute?
Jenin Younes: Yes. So this is California's Assembly Bill 2098, and it prohibits doctors from disseminating misinformation to patients about COVID. Now, the problem, or the legal argument we make, is about the definition of misinformation, which is defined as false information that contradicts the contemporary scientific consensus contrary to the standard of care. There are no conjunctions or commas or anything to separate those three braces.
Margaret Little: Why don't you repeat the critical phrase here so that our listeners can understand what has been legislated through two houses of the California government legislature?
Jenin Younes: False information that contradicts the contemporary scientific consensus contrary to the standard of care.
Margaret Little: Okay. That's kind of complicated.
Jenin Younes: Yeah. Border nonsensical, as the judge said.
Margaret Little: And was this also signed by the governor?
Jenin Younes: It was. He appended a signing statement, expressing some reservations, saying he was worried that were First Amendment problems, but he was confident it would only be used when there was a malicious intent. But the law contains no such requirement within it, so that's just wishful thinking.
Margaret Little: Okay. So tell us about how you found your clients and what you did next.
Jenin Younes: My clients were also people I knew through -- We'd all been active in fighting COVID restrictions, so they were just people I knew through that world. Aaron Kheriaty, who I mentioned before, is one of the plaintiffs. He's in both cases. And then Tracy Hoeg, who's a doctor in the Sacramento area; Ram Duriseti, an ER physician at Stanford; Azadeh Khatibi, who is a doctor, an ophthalmologist, but she's actually joining the suit as a patient because she suffered from a life-threatening illness herself.
When she was diagnosed, she followed the consensus of one doctor rather than the majority—he was an outlier—and his recommendations, and she ended up surviving when she was given like a 10 percent chance of surviving or something like that. So her point is that if you're only allowing doctors to speak when they agree with the consensus, people like her might not be alive today.
And then, the fifth plaintiff is Pete Mazolewski. He's a surgeon. I forgot exactly where in California he is. So they are all arguing that the law violates the First Amendment rights because it's viewpoint-based discrimination, and then that it's unconstitutionally vague.
Margaret Little: Well, isn't there also a legitimate scientific issue here that consensus is not something that scientists—good scientists—think necessarily governs the scientific and medical process, if I understand that correctly?
Jenin Younes: Absolutely. Yeah. So one of our arguments is that the definition of misinformation, false information that contradicts the scientific consensus contrary to the standard of care, is unconstitutionally vague. That's a due process issue. And one of the many points we make in that argument is that, who knows what the contemporary scientific consensus is? Who gets to decide? Is it all doctors and scientists? Some? Only in certain fields? How often do we decide what's contemporary? Is it every month? Is it every year?
And when you look at the reality of COVID, where things have changed by the day, a year and a half ago, Rochelle Walensky, the CDC director, said you won't get COVID if you've been vaccinated. We all know that's not true now. There's pretty clear evidence that mask mandates are ineffective, all of this. So for various reasons, we don't know what the consensus is, and then doctors have historically not been required or restrained to act within a consensus. They're supposed to use their best judgment.
And as our plaintiffs actually argued in their declarations, the studies show that the contemporary scientific consensus takes about 17 years to reach the average doctor. So the latest science is -- So if you're on the cutting edge of a field and you're actually the best and the top, you're going to know things that the average doctor doesn't, and you might be practicing against the consensus.
And one concrete example we have is that one of the plaintiffs, Ram Duriseti, the ER doctor at Stanford, he's treated hundreds of COVID patients. At the beginning of the pandemic, he thought ventilation for severe cases was a bad idea, but everybody was saying, "No, ventilate, ventilate." He turned out to be right. One of the reasons we know he's right is that he was not forced to abide by a consensus or suffer discipline. He was able to follow his instincts, which turned out to be correct, and we wouldn't have necessarily known that if people like him weren't allowed to do what they believed was best.
Margaret Little: So tell us about the hearing.
Jenin Younes: Yeah. The hearing was late January, January 23rd. We were actually heard along with another case that raised the same issue. And we had Judge Shubb in the Eastern District. He had been a First Amendment lawyer, so we --
Margaret Little: This is the Eastern District of --
Jenin Younes: California.
Margaret Little: California. Thanks.
Jenin Younes: Sorry. So we knew he knew his stuff. He, to my surprise, focused much more on the vagueness than the First Amendment issue and ended up -- He called the law nonsense at the hearing, so I thought we had a good shot, the definition of misinformation. So one of the arguments we made was false information that contradicts the contemporary scientific consensus contrary to the standard of care. Is it or? Does the board have to show one of those things? Does it have to show all of them? How do they relate to each other? How do they differ from each other? Doctors don't know, and he really got that.
So the state was trying to argue that you'd have to show all three elements so that it was -- You know, so the doctors already have to operate according to the standard of care, so this wasn't imposing any new burden on them. It was just adding some other phrases because they're supposed to have to show all of them.
Well, we aren't given -- What's the point of the law? If this really isn't doing anything else, then why even have it? Obviously, what you're trying to do is silence doctors who differ from the state, and that's clear from the language of the statute itself as well as the legislative record, which makes clear what they're trying to do is shut up doctors who questioned state orthodoxy on COVID.
Margaret Little: And what did the Court hold?
Jenin Younes: So the Court granted the preliminary injunction two days later in a thirty-five-page decision. I suspect he had been working on it beforehand, but he granted it on the vagueness grounds. He dropped a footnote and said, because he was reaching it on the due process grounds, he wasn't going to address the First Amendment, but indicated he thought we had a very good argument.
Margaret Little: And did you get an amicus support in your --
Jenin Younes: We did, from the ACLU as well as another organization called something about choice and medical freedom or something. So the ACLU supported our case. What's happening right now is that the state has actually decided not to appeal our case, but there was another case in the Central District that went the other way; the plaintiffs lost, and that's now upon appeal in the Ninth Circuit. So we provided amicus support there, and the ACLU also is providing amicus support. And we're hoping that the Ninth Circuit recognizes this law for what it is.
Margaret Little: That sounds great. I'd like to close, before we get to questions, with a topic I will call the great reckoning. And I'd like you to just tell our listeners the various reports and research and published conclusions that have come to light over the past several months. You know, you can start with natural immunity. There was a study in Lancet. And just tell us about these studies one by one and what they have uncovered.
Jenin Younes: Yeah. So there was a recent study in Lancet showing that natural immunity is better than vaccine-induced immunity, which anyone who was paying attention has known for basically two years. It's been very clear. The CDC has played a very active role in trying to cover that up for reasons I won't speculate about, and it was misinformation to say that on Twitter a year ago. I know because I was censored for it.
Mask mandates, likewise, it's considered misinformation. Drs. Bhattacharya and Kulldorff were censored for saying that they didn't think mask mandates were a good idea, especially for kids. And now there's been this Cochrane Review. It's sort of a meta study of all the studies. Mask mandates do nothing.
Of course, the argument against has been they said people didn't always wear their masks properly. So people have been saying, "Well, it's because people aren't wearing their masks properly. It's not that the mandates don't work, but the problem is a public health intervention has to actually work in practice."
The reason people don't wear their masks properly is because you can't ask people to wear masks all day, every day for years on end without ever taking it off and breathing. I mean, it just doesn't work as a way to live. So obviously, that study should be considered very strong evidence that mask mandates were entirely ineffective.
And then, there have been many studies about lockdowns now. There was one from Johns Hopkins. There was a recent one—I forgot where it was conducted—also saying basically no difference between countries that locked down and didn't in terms of deaths. So our plaintiffs were right.
Margaret Little: How about the school closures?
Jenin Younes: School closures, same. I incorporate school closures and lockdown sort of --
Margaret Little: Sure.
Jenin Younes: I think one of the things that this really teaches us is our clients were right, and they were silenced for seeing things that differed from the state by the state on their fields of expertise when these are some of the top experts in the world, and lots of people suffered and died. You know, our mental health problems have skyrocketed.
Tons of children who left school during lockdowns have never returned. They're going to lead shorter, poor lives for many reasons. Lots of people lost their businesses forever. Lots of people died because they didn't go to the hospital because they were afraid of COVID, even though they had heart attack symptoms. People missed cancer screenings, and those death rates are going up.
So this has had very severe consequences and deleterious consequences for society, and it's because -- I think if there had been a robust debate, lots of Americans would have seen that this was not a good idea, but instead, people like Drs. Bhattacharya and Kulldorff were silenced and shut up, and that's led to great harm to society.
So I think that these cases exemplify why we have our First Amendment. I mean, the First Amendment also protects false information and protects the people who are saying the microchip doesn't work, but this is why we have it because, once you get the state involved in censorship, where does it end? And we're seeing that the people doing the censorship don't know where to draw the lines, and that's why we don't have the government drawing the lines.
Margaret Little: Okay. Well, we have some questions, but do you have a final thing you want to say, or do you want to just --
Jenin Younes: No, I'm happy with that. I'm happy to answer questions.
Margaret Little: Okay. So first question is, are you familiar with the FDA sending cease and desist letters to doctors who posted misinformation?
Jenin Younes: I've heard of that. I actually don't know a ton about it. I don't think I was ever contacted by someone who that happened to
Margaret Little: Another questioner has asked -- They're very familiar with the Twitter Files, and they say that the defense seems to be that the government, the FBI, CIA, whatever, is just suggesting bans, not directing them. What would you say to that?
Jenin Younes: First of all, as I was talking about earlier, we know from the coercive statements that, especially in a COVID context, it was not just suggestions; it's threats, and some of what appears to be a more collaborative operation is because there were these threats made in the past. I mean, if you threaten someone and then they appear to be cooperative after that, I don't think that can be considered voluntary.
To the extent, some of it, I think, may have been more collaborative, especially when it comes to the DHS trying to stop foreign interference in elections and that ending up silencing Americans who, for instance, thought that Trump won the election, which happened quite a bit. That does look a bit more collaborative, but I think that we need -- I think that the First Amendment should prohibit the government from working with private industry to censor viewpoints.
And I would draw an analogy to the Fourth Amendment where the government can't hire a private company to go into your home because the government doesn't have enough evidence to get a warrant. You know, the government shouldn't be able to outsource what would be unconstitutional activity if it did it itself to a private company, whether or not the private company wants to be doing that.
Margaret Little: So another questioner wants to know what kind of damages could be awarded if plaintiffs prevail, and they specifically note that they have thought followed Jay Bhattacharya travails and would like to know what kind of damages he might be entitled to.
Jenin Younes: So we're not seeking damages in these cases right now. I think that could -- I think it can change if it shows that people were really intentionally and maliciously targeted. We do know, for instance, that Bhattacharya and Kulldorff for targeted by Fauci. Fauci has emails with someone named Francis Collins at the NIH where they're talking about, "We've got to take down these fringe epidemiologists," but we don't have enough evidence right now that they were responsible for the harms that they experienced on social media. I think you would need more direct evidence that they were censored at these people's behest.
Right now, our argument is that we don't even have to have that direct evidence. This has a strong chilling effect. And it's going to be very unusual that we can prove any specific person was censored because of the government, but if the government's involved in this, anybody who was censored on social media during this period of time, their First Amendment rights were violated.
And also, there's a reciprocal First Amendment right to receive information, so all Americans were deprived of that right. So right now, probably not looking at damages, but that could change. And then, also, if we set good precedent with this case, and then in the future the government continues to engage in this kind of conduct, then I think people could be looking at damages.
Margaret Little: Another questioner wants to know if we've run into any issues or roadblocks with courts granting qualified immunity to the state or federal defendants or public officials?
Jenin Younes: Not yet.
Margaret Little: Okay. And the next question is, well, what is your endgame? What do you want to get?
Jenin Younes: We want the courts to recognize that the government can't work with, pressure, coerce, collude, anything with private industry to censor people based on viewpoint, and I think this is really important. You know, there's not a lot of directly-on-point case law, and I think it's because, prior to social media, you just didn't have the government able to be involved in censoring individual Americans the way that you can now with social media.
I mean, yeah, there are sort of analogous examples where the government tells the newspaper, "Please don't print this or we're gonna prosecute," the Pentagon Papers, that kind of thing, but it wasn't as -- Because a newspaper does have editorial discretion and because it doesn't serve as a platform for basically just anyone wants to go on it, it didn't have the same kind of impact. And that's why I think it's really important that, in the digital age, we recognize that this is a huge First Amendment violation.
Margaret Little: Another questioner asked how far along the spectrum from persuasion to compulsion does the government have to go before there is state action implicating the First Amendment?
Jenin Younes: So in my opinion, again, I don't think the state should be able to be involved in censoring at all. I think persuasion should be considered a First Amendment violation. Obviously, coercion as a stronger case. It's definitely easier to make that case. So I guess I fall on the side of government involvement in this should be considered unlawful.
Margaret Little: Okay. We have an interesting question here. The Twitter Files revealed a September 2020 proposal by the FBI officials to create encrypted communications channels, something called Signal app, with the social media companies. Can future communications be enjoined, and what is the likelihood of learning via discovery about the content of government social media companies' Signal communications?
Jenin Younes: That's a really good question. You know, I'd have to give that one some thought. Do you have any thoughts on it?
Margaret Little: Well, I would think government communications, we're entitled to know those, and so they would have to reveal the Signal communications unless there was some wartime exception or something. There really isn't that here.
Jenin Younes: Yeah, that sounds right to me.
Margaret Little: Okay. All right. That was a find. Another person asks, suppose the speakers who are suppressed were not world experts in their fields, like the two epidemiologists and doctors that you've mentioned. How, if at all, would that change your analysis or your argument?
Jenin Younes: It doesn't, and some of our plaintiffs aren't -- Two of the other plaintiffs aren't world epidemiologists. Actually, the three plaintiffs I have in the other case I mentioned, Changizi, that preceded Missouri are not -- One is a scientist, but two are lawyers. You know, I don't think it matters at all. I would defend the person who says the vaccines have a microchip's right to say that, even though I don't agree that that's true statement.
Margaret Little: And you would insist upon your right to debate that.
Jenin Younes: Exactly. Exactly. I like using these plaintiffs as an example because I think it helps people to see why we have a First Amendment. You know, this sort of shows how the debate which was so important that really should have taken place in a healthy democracy didn't because these people were silenced, but, of course, all Americans have a First Amendment right to speak on this and any other subject.
Margaret Little: So a questioner who arrived late wants to know whether Section 230 has any bearing on this issue?
Jenin Younes: Not directly. We do argue in the complaint that the companies kind of want to have it both ways. So they're saying, "Well, we get Section 230 protection. We can't be held responsible for what people say on our platform, but also, we want to censor people because they're saying the wrong thing," and that they shouldn't be able to have it both ways. Either they're a publisher and they should be held responsible, or they're not, and then they shouldn't be censoring people for expressing viewpoints.
Margaret Little: Have any of the deponents in the depositions invoked the Fifth Amendment?
Jenin Younes: Not in any of the ones that I watched. I have to admit I didn't watch all of them. There were lots of them, and they were very long, but they mostly answered the questions, even Dr. Fauci.
Margaret Little: Okay. And did any of the social media companies refuse the government's demands, to your knowledge?
Jenin Younes: There were a couple of instances on which they pushed back. I'm trying to remember. There were a couple of times they were asked to censor things that were clearly like -- There was one that was -- It was posts that were saying they didn't think vaccine mandates were a good idea, and the companies said, "No, this is an opinion. You know, we're not going to do that." So they did push back on occasion. Rob Flaherty frequently derided them anyway, and then they would actually cave. So again, more evidence. They didn't cave every time; there were a couple of times they didn't, but --
Margaret Little: Yeah, because the follow-up question on that was were any penalties visited upon the resistors, and how would you describe that situation on the pushback?
Jenin Younes: So there weren't direct penalties, but it's threats. It's that, "We are going to penalize you if you don't do this." When the companies pushed back, they would say, "Look, this is an opinion. We're not --" And this was very rare. There may be two or three emails out of the thousands that were pushing back at all. They say, "No, we're not going to do this. This is someone's opinion." And he says, "Okay." But if he really thought that it should be censored, he pushed.
And then, you have a lot of people in the Biden administration saying they're going to be held accountable. They threatened 230 reform, which the companies are really afraid of because, if they can be held responsible for whatever anyone says on their platforms, social media can't really exist the way that it does and you can't have people posting whatever they want all the time.
Margaret Little: Right. Someone has asked, what is the exposure of these tech companies for cooperating? Is there some sort of relief available under Section 1983 or anything else? And are any government officials at risk of criminal liability?
Jenin Younes: Criminal liability? Probably not now, although some people have a theory that there could be, especially when they very clearly knew they were violating the First Amendment. As far as the companies, it's a little hard to say. I mean, I think the companies, it's almost in their interests to claim that they were coerced or to go with the coercion theory of this because, if they were doing it voluntarily, then I think they could almost be considered state actors and perhaps sued for violating people's First Amendment rights, which could expose them to liability.
And I think people who earn a living from their social media accounts, someone like Alex Berenson, who people might have heard about, who was directly censored because of the government on Twitter. His account was basically removed after Biden called him a threat. And he earned a lot of money off his Twitter account. I think they might be able to get some money from the tech companies if they are considered state actors. So I'm not exactly sure where this will go, but we're not suing the tech companies in this lawsuit.
Margaret Little: Okay. Someone did ask about Alex Berenson, so I'm glad you offered that information. That question answered that. Someone asks an interesting one. Dr. Fauci denied participating in these activities because he is so busy. Is there any evidence to the contrary?
Jenin Younes: Yeah. There were some contradictory things. At some point, he was asked about a podcast he went on. This was in connection with the lab leak theory. He went on with Peter Daszak, which, by the way, is another example of something that was considered misinformation and we now know probably was true. He's claimed not to remember doing a podcast with Daszak, and he said, "I do so many podcasts. I've done hundreds of podcasts." I mean, if he's so busy, I don't know why he's doing podcasts, but...
Margaret Little: Okay. Could there be a class action in the future of Americans who are denied access to unorthodox information?
Jenin Younes: Yes. Let's just say there may be something along those lines in the pipeline.
Margaret Little: Now, you don't have to answer this question, but I'm going to read it anyway. On a scale of one to ten, how satisfying was it to depose Anthony Fauci? And relatedly, if the Court finds that certain public officials violated the First Amendment rights of your clients, is there a legal mechanism by which these officials can be held accountable?
Jenin Younes: As far as Fauci on a scale of one to ten, I'd give it a seven because he didn't speak that much on the -- He didn't have that much knowledge, or claimed not to have that much knowledge, on the topic we wanted, but he didn't give some other very interesting information that I think was revealing about his mindset, or at least confirmed the type of mindset he has, which is that he knows everything and isn't really open to input from other people.
And also, to be clear, I didn't personally depose him. The Solicitor General of Missouri did, but I was in the room and helped with preparations and that sort of thing. The other question, whether he could be held personally accountable? Is that --
Margaret Little: Yeah.
Jenin Younes: Yeah. Well, we're currently suing all of these people in their official capacities. I think more information would have to -- more damning information would have to come out for us to try to sue them in their individual capacities, and I think that would be more difficult. I don't see it happening now, but it's not impossible.
Margaret Little: Okay. Now, here's a really interesting thing. I'm certainly learning something and maybe you, too. Signal. Remember, there was the earlier question about --
Jenin Younes: Yeah.
Margaret Little: Signal is like Snapchat in that the communications are not preserved. If the FBI did that, they were essentially conspiring to plan spoilation of otherwise discoverable communications, violates NARA, etc.
Jenin Younes: Yeah, that's a very interesting point. I don't know enough about the law surrounding that to give a very informed answer. It seems like it presents a problem.
Margaret Little: Okay. Someone has asked, have you looked at the repercussions against federal employees and military personnel who have had their employment terminated, retirement suspended, or were administratively discharged from the military?
Jenin Younes: For not getting the vaccine or --
Margaret Little: I'm assuming that's -- It doesn't say that, but I think that's -- And there was some litigation happening.
Jenin Younes: Yeah. We didn't actually challenge the military vaccine mandate. We did challenge a number of Biden's other mandates for federal contractors and employees. So we argued that those were unconstitutional. We haven't gotten decisions yet.
Margaret Little: Okay. And somebody else brought up the Signal thing and said maybe a remedy is to ban government communications on systems that do not preserve messages, which I suppose would be something to think about in terms of future litigation.
Jenin Younes: Yeah.
Margaret Little: Do you think that the conduct of the government or any of its employees was criminal?
Jenin Younes: Probably not the way that the law exists now. I mean, I think it's so bad that it's disappointing to me that the law doesn't help hold them more personally accountable, and I think it's a really big problem. You know, I do think some of these people know that they were flouting the First Amendment, but they know that they weren't going to be held personally responsible, so "Okay, what's the worst thing that's going to happen to me? A court's going to say I can't do what I already did. Too bad." And so, I think that is a really big issue, and I think it encourages government officials to act lawlessly when they don't suffer any real-world consequences for what they've done.
Margaret Little: Now, we have something called a wild suggestion, asking if we reached out to Elon Musk, whether voluntarily or through a third party, because he might have access to other relevant communications to your cases and he would appear to be willing to share such information. And I will just throw in that he apparently did invite certain reporters and Bari Weiss in to look at the Twitter Files. Have we been made privy to any of that information?
Jenin Younes: Yeah. So our client was a -- I think he was the first person Musk called. Musk called him one night and invited him to the Twitter --
Margaret Little: Wait. Who? Who did he call?
Jenin Younes: Jay Bhattacharya. Sorry.
Margaret Little: That's okay.
Jenin Younes: And so, that was actually how Jay found out he was on a blacklist. And so, he spoke to Musk, and Musk knows about the lawsuit and has indicated that he wants to help. His lawyers, they're doing what they can. There's a lot of -- There's a lot of documents. But he apparently told Jay that he doesn't care about the repercussions for Twitter; what he cares about is free speech and exposing anything that the government has done that's unlawful here, so hopefully he will continue to do that.
Margaret Little: So do you predict there'll be a sharing of information through the various channels in which the Twitter and other files are coming out?
Jenin Younes: I do. Yeah, I do think so. I don't know if there'll be anything new.
Margaret Little: Okay. Let me see. I can't tell if I'm at the end of the questions. No, I'm not. Okay. Let's see here. The question thing is jumping up and down a bit for me. There's more information on the Signal and how it might violate what's known as the National Archives and Records Act for our listeners. So I think the thought would be that that would be a concerted effort to engage in spoilation.
Jenin Younes: Yeah.
Margaret Little: Let me see here. Are you aware of any existing laws regarding banning what would be called ephemeral communications, such as Signal?
Jenin Younes: No. I mean, it seems as though the government shouldn't be using things where their messages disappear unless there is some exception for law enforcement. I don't know. So there could be an exception I'm unaware of that's --
Margaret Little: Right. Do you think if they were engaged in that sort of activity, the social media companies, should that bear on their Section 230 immunity?
Jenin Younes: Oh, that's a good question. I don't want to see their immunity taken away. I think that would be bad for social media. And one of the exceptions to their immunity is they can't facilitate unlawful activity or they should be taking that down, which is how I think they should be dealing with it, just things that are purely unlawful; other than that, no content moderation. I don't know that that's the solution with respect to the Signal issue.
Margaret Little: Someone is asking about a case called Snyder v. Phelps. They say it's a somewhat obscure U.S. Supreme Court case that may have some poignancy here because it apparently suggests that you have a First Amendment right to refuse to receive a vaccination.
Jenin Younes: I don't think I came across that case, although it does ring a bell.
Margaret Little: Okay.
Jenin Younes: But I do remember a vaccine mandate case. I don't think I found it particularly -- We didn't do any religious exemption cases, so maybe that's --
Margaret Little: Okay. Well, I think I'm at the end of our question list, and we have only a couple minutes left in our allotted time. Sam, do you have any questions, anything that you'd like to follow up with?
Sam Fendler: No, this has been great. I appreciate the opportunity and I appreciate you both. We do have a couple of minutes. I don't know if, Jenin or Peggy, you have some final thoughts that you want to leave the audience with.
Margaret Little: Jenin is the expert here. I learned a lot from our questioners as well as Jenin.
Jenin Younes: So a lot about Signal. I would just say -- I sort of got at this before, but I think, in this pandemic era, we really gave up a lot of rights, and I think this shows how dangerous it is. The fact there's a pandemic should not lead us to allow the government to infringe on our First Amendment rights, whether to gather and worship or to speak or any of that. And we saw how badly that went, and that's why I think we need to be more vigilant and fight back harder next time around.
Margaret Little: Okay. Well, we certainly have, I think, a wealth of information that came out due to your efforts and those of many other people who have been plowing in the same fields. And I do feel like I, unfortunately, am a lot wiser and somewhat sadder about the state of our government.
Jenin Younes: Yeah. Yeah.
Sam Fendler: Excellent. Well, to Jenin and Peggy, both of you, I want to thank you on behalf of The Federalist Society. I think this was a true litigation update, and our listeners appreciate the ability to ask you so many questions. Thank you both for addressing them and for your time and expertise.
I also want to thank the audience for joining us. We greatly appreciate your participation. Please check out our website, fedsoc.org, or you can follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars. Again, I want to thank you all for tuning in, and we are adjourned.