‘What Will We Not Know?’ Is the Question That Worries Philip Hamburger as the Supreme Court Weighs His Most Explosive Case

Philip Hamburger doesn’t, at least when one first talks with him, sound like a constitutional radical. The first thing he said when I reached him by phone at his office at Columbia University’s law school is that he was uncaffeinated. It doesn’t take but a few questions, though, to comprehend that he is leading a potentially historic challenge to the government in a new era of censorship.Our topic is Missouri v. Biden. The case, by Missouri and four private plaintiffs, alleges that the federal government has been attempting to suppress political speech. It’s the case in which the chief United States judge for the Western District of Louisiana, Terry Doughty, declared that the “United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’”The phrase is from Orwell’s immortal novel “1984,” about totalitarian government. In the novel, the government departments are named for the opposite of what they do. The ministry of truth propagates lies. So for a United States judge to use that kind of language is no small thing. It’s clear from a few minutes on the phone that Professor Hamburger knows it.I point out to him that much of the speech that the government is targeting — related to, say, the Covid vaccines or the election — is true. It is simply speech that dissents from the government’s view. “Misinformation, malformation, disinformation,” Mr. Hamburger says, “what’s interesting about these labels is that they recast what used to be called opinion as information.”This is what is so explosive about this case. The district court enjoined the government from seeking to censor, or even communicating with, in most cases, the social media companies. The Fifth Circuit sustained. The government appealed to the Supreme Court, which froze the injunction temporarily, allowing the government to continue its efforts to limit “disinformation.” Mr. Hamburger’s non-profit law firm represents the four private plaintiffs. Two of these plaintiffs, epidemiologists Jayanta Bhattacharya and Martin Kulldorff, are the authors of the Great Barrington declaration, which criticized Covid lockdowns and garnered signatures from other highly credentialed scientists. Soon after, though, Dr. Anthony Fauci and other government officials soon orchestrated a “takedown” of the “dangerous” declaration.What gets Mr. Hamburger, he suggests in our conversation, is that the Biden Administration has taken “the information warfare mechanisms familiar from our foreign conflicts and turned them inward to domestic matters.” It has, he says, recast speech that conflicts with government policy as misinformation — “a sleight of hand that’s profoundly dangerous.”One example for Mr. Hamburger is Washington’s stifling of online groups for those injured by the Covid vaccines, which his civil rights group, the New Civil Liberties Alliance, is challenging in another lawsuit. “The sharing of pain was entirely personal, private speech,” he says, “but the government suppressed it. Why? Because information about vaccine injuries was against their narrative.” Judge Doughty’s analogy to Orwell, therefore, “is more than apt,” Mr. Hamburger says. “The government, unable to persuade people to do what it wants, is simply silencing its opponents.” Even more, it is censoring complaints about censorship itself, he says, offering up his own analogy, this one an old maxim: “See no evil, hear no evil, speak no evil.” Protecting citizens from unchecked federal power is a mission to which Mr. Hamburger has dedicated his career. He formed the New Civil Liberties Alliance to curb the authority of what he deems “the Administrative State,” a technocratic style of governance that has chipped away at the American Founders’ concept of a government of enumerated and separated powers. The New York Sun, in editorials, has lauded the litigation and pro bono advocacy of Mr. Hamburger’s alliance. Though he has never sat on any bench, the paper proposed in July of 2021 that historians could eventually speak of the Hamburger Court, for the way he, through his amicus briefs, is “coming into view as potentially having a historic impact on American law.”Which brings me back to Missouri v. Biden. In its application to the Supreme Court, the Biden Administration claims that the Fifth Circuit’s “startling” decision put “unprecedented limits on the ability of the President’s closest aides to use the bully pulpit to address matters of public concern.” The bully pulpit as a constitutional concept is intriguing.On no constitutional grounds, though, can the Biden administration defend its crusade for censorship, Mr. Hamburger says. That would transform the word bully — meaning excellent — into bully, meaning thug. The administration argues that the demands for censorship and the decisions about which speech should be curtailed came from different actors, he explains. “The ‘startling’ feature of this case,” the plaintiffs wrote in their response on Wednesday, “is defendants’ unprecedented disregard for the First Amendment.” Hundreds of pages of court documents disclose years of federal pressure on social media platforms to suppress billions of online posts about electoral politics, medical and scientific debates, and foreign policy.Coercion should not be the only legal test of the administration’s free speech violations, Mr. Hamburger says. “Voluntary cooperation with private companies to suppress speech is also unconstitutional.” The government, he says, violates the First Amendment by “supplying coordination” between platforms like Facebook and Youtube so that they can censor the same content.“The government seems to have assumed that if they worked through private parties,” they would be “cleansed of their First Amendment sins,” Mr. Hamburger says. Deflection of wrongdoing, though, does not exonerate the wrongdoer. “If you hire a hitman to kill somebody,” he points out, “it’s not just the hitman who’s guilty.” The Supreme Court, in a procedural move, stayed the Fifth Circuit’s injunction until midnight tomorrow. On that day it will likely decide whether to continue its stay of the preliminary injunction, and it later may grant a writ of certiorari to review the merits of that injunction, which has yet to be tried. The case, though, is “the tip of the iceberg” in Mr. Hamburger’s concerns over the survival of free speech. The Fifth Circuit included in its injunction the White House, Surgeon General, Centers for Disease Control and Prevention, and the Federal Bureau of Intelligence, and agreed on Monday to consider reinstating the injunction to entities it initially excluded.One such entity, in addition to State Department officials, is the Cybersecurity and Infrastructure Security Agency. The plaintiffs told the court last week that this agency is “the ‘nerve center’ of federal censorship efforts.” Judge Doughty warned that the agency believes the “most critical” infrastructure “is our ‘cognitive infrastructure.’” Mr. Hamburger sees a culture of complacency among Washington’s decision-makers. “Everyone talks about the high-minded professionals in the Justice Department” who would rather resign than depart from their so-called principles, he says. “I haven’t seen one individual in the Justice Department stand up against censorship. Not one has said, this is wrong, I’m not going to defend it.”I asked Mr. Hamburger why. He pointed to “the alignment of political opinion within institutions,” which suggests one should “distrust the alleged expertise of our guardians in the Justice Department, the FBI, and elsewhere. How can they ever be relied upon in the future?” He sees the integrity of our government at stake. “If you can censor during an election, it’s not clear what the value of the election is.”It’s not partisan with Mr. Hamburger. Regardless of which party is in power, he foresees that the “Administrative State” will interfere with online discourse, covertly and injuriously, until it changes the composition of the Supreme Court. “It may be that censorship is already so well-embedded that it will continue despite injunctions,” he says. He worries that Missouri comes several years too late.The First Amendment alone, moreover, might not serve as a strong enough defense, Mr. Hamburger says, for “some illegalities, once perpetrated, have an effect that persists.” He adds that we “need a system that stops censorship in its tracks. We need a system that dissuades officials from even beginning censorship — that ensures they never do it, that they don’t even start.” He expresses hope in a Texas anti-censorship statute which treats the domineering social media platforms as common carriers responsible for viewpoint discrimination even if it was at the behest of Washington. The Supreme Court will soon decide whether to hear the case, and its ultimate decision “will determine whether or not we will continue to have censorship in this country.”Uncaffeinated as he might have been during our conversation, Mr. Hamburger was steadfast in his quest to restore his vision of constitutional America. The urgency of his concluding query to me would have stirred the dystopian dramatist Mr. Orwell himself: “What do we not know, and what will we not know, until censorship has fully controlled our system of government?”

‘What Will We Not Know?’ Is the Question That Worries Philip Hamburger as the Supreme Court Weighs His Most Explosive Case

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