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Mandatory Vaccination & The Failure Of Modern Constitutional Law

Mandatory Vaccination & The Failure Of Modern Constitutional Law

Authored by Bob Fielder via The Libertarian Institute, 

Stare Decisis is an old Latin phrase meaning “Let wrong decisions of the Court stand.” The term is more commonly…

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Mandatory Vaccination & The Failure Of Modern Constitutional Law

Authored by Bob Fielder via The Libertarian Institute, 

Stare Decisis is an old Latin phrase meaning “Let wrong decisions of the Court stand.” The term is more commonly spoken of today as the common-law doctrine of precedent.

During the COVID-19 crisis, Jacobson v. Massachusetts became the fountainhead for pandemic jurisprudence. Courts relied on this 1905 precedent to resolve disputes about religious freedom, abortion, gun rights, voting rights, the right to travel, and many other contexts. But Justice John Marshall Harlan’s decision was meant to be very narrow. It upheld the state’s power to impose a nominal fine on an unvaccinated person. No more, no less. Yet, judges now follow a variant of Jacobson that is far removed from the Lochner-era decision. And the Supreme Court is largely to blame for these errors.

Recent research on the part of constitutional law scholar Josh Blackman, his article “The Irrepressible Myth of Jacobson v. Massachusetts” demonstrated that over the course of a century, four prominent justices established a mythical narrative surrounding Jacobson v. Massachusetts that has obscured any historical view of this case as either a matter of law or fact. This myth has four levels:

  1. The first level was layered in Buck v. Bell (1927). Justice Oliver Wendall Holmes Jr. recast Jacobson’s limited holding to support forcible intrusions onto bodily autonomy. The Cambridge law did not involve forcible vaccination, but Holmes still used the case to uphold a compulsory sterilization regime.
  2. The second level was layered in 1963. In Sherbert v. Verner, Justice William J. Brennan transformed Jacobson, a substantive due process case, into a free exercise case. And he suggested that the usual First Amendment jurisprudence would not apply during public health crises.
  3. The third level was layered in 1973. In Roe v. Wade, Justice Harry Blackmun incorporated Jacobson into the Court’s modern substantive due process framework. Roe also inadvertently extended Jacobson yet further: during a health crisis, the state has additional powers to restrict abortions.
  4. The fourth layer is of recent vintage. In South Bay Pentecostal Church v. Newsom, Chief Justice John Roberts’ “superprecedent” suggested that Jacobson-level deference was warranted for all pandemic-related constitutional challenges.

This final layer of the myth, however, would be buried six months later in Roman Catholic Diocese of Brooklyn v. Cuomo. The per curiam decision followed traditional First Amendment doctrine, and did not rely on Jacobson. But Jacobson stands ready to open up an escape hatch from the Constitution during the next crisis. The Supreme Court should restore Jacobson to its original meaning, and permanently seal off that possibility.

Instead, Chief Justice Roberts wrote an influential concurring opinion. He favorably cited Jacobson, and wrote that, “Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’” In short order, this concurrence became a “superprecedent.” Over the following six months, 140 cases cited the solo opinion, and more than 90 of which also cited Jacobson. It isn’t clear that the chief justice intended to adopt Jacobson’s constitutional analysis as a general rule to review pandemic measures

Jacobson v. Massachusetts was decided in February 1905, two months before the Supreme Court handed down Lochner v. New York. This period was known politically as the Progressive Era, and legally as the Lochner Era. Constitutional law was very different at the turn of the twentieth century. When reviewing decisions from this epoch, it is important to view them in the timeframe in which they were decided. It is anachronistic to view these cases through the lens of modernity. And it is problematic to graft these early cases onto the modern framework of constitutional law. Yet, courts and scholars routinely make these errors. Part I will provide a brief history of constitutional law from the Lochner era to the present. First, we will revisit the Fourteenth Amendment, as it was understood in 1905. At the time, there were no tiers of scrutiny, the Supreme Court did not distinguish between fundamental and non-fundamental rights, and the Bill of Rights had not yet been incorporated. So-called rational basis review was actually somewhat rigorous. Moreover, the Court treated economic property rights in the same fashion as personal liberty.

In 1905, the Supreme Court’s Fourteenth Amendment case law was primordial. The Privileges & Immunities Clause was an empty vessel. States were not bound by the Bill of Rights. And separate was equal. This jurisprudence was far removed from modern doctrine. The Supreme Court had not yet carved the tiers of scrutiny. There was no divide between rational basis scrutiny and strict scrutiny. Nor was there a sharp dichotomy between fundamental and non-fundamental rights. Yet, cases from the Progressive Era invoked concepts and terms that seem familiar to present-day students of constitutional law, but had very different meanings.

The Evolution to Modern Constitutional Law

Modern constitutional doctrine would begin, in earnest, three decades after Jacobson. The Supreme Court’s Progressive Era approach to the Fourteenth Amendment largely subsided during the New Deal. The Supreme Court’s present-day approach to the Due Process Clause springs from Footnote Four of United States v. Carolene Products. Justice Harlan F. Stone wrote the majority opinion. The first paragraph of Footnote Four stated that courts should not review with the presumption of constitutionality legislation that “appears on its face” to violate “a specific prohibition of the Constitution.” Specifically, that presumption of constitutionality is not warranted when a law runs afoul of rights protected by “the first ten Amendments.” For example, the Court should not use the presumption of constitutionality to review a law that violates the freedom of speech. Instead, the Court should invert the presumption of constitutionality to what may be called a presumption of liberty. With this approach, the government has the burden to justify why it is violating that enumerated right. The Court would later refer to this model as “strict scrutiny.” There was an unstated implication in the first paragraph of Footnote Four: nonfundamental rights that did not to violate “a specific prohibition of the Constitution” would be reviewed with the presumption of constitutionality. That is, most laws that burdened unenumerated rights would be reviewed with a deferential standard of review.

Jacobson and Lochner in 1905

Around the turn of the twentieth century, states began to require people to be vaccinated against smallpox. And courts upheld these measures as constitutional exercises of the police power. In 1902, Massachusetts enacted such a law. Later that year, the city of Cambridge prosecuted Henning Jacobson for refusing to get vaccinated. Jacobson, a Lutheran Evangelical Minister, argued that the law violated the state and federal constitution. After a trial, Jacobson was convicted, and ordered to pay the maximum permissible fine: $5. The Massachusetts law did not allow the Commonwealth to forcibly vaccinate Jacobson. An unvaccinated person who paid the fine was free to spread smallpox, and still be fully compliant with the law.

The Massachusetts Supreme Judicial Court upheld Jacobson’s conviction. It found that individual liberty could be restricted to promote the common welfare. On appeal, the United States Supreme Court agreed. Justice John Marshal Harlan wrote the majority opinion. So long as there was reasonable fit between the measure adopted, and the government’s interest was to promote public health, the law is valid. Still, Jacobson identified several limitation on its holding that are often disregarded in modern discourse.

We must juxtapose Jacobson with the infamous case of Lochner v. New York. The two cases, which were decided two months apart, are cut from the same constitutional cloth. Both of these cases should be viewed as byproducts of the early twentieth century jurisprudence. To understand Jacobson, we must understand Lochner.

A number of states put in place steep fines and penalties for non-compliance to vaccine requirements. Still, despite all of these draconian measures, the states did not purport to have the power to forcibly vaccinate people. By 1905, “not one of the states undertakes forcible vaccinations of its inhabitants, while the states of Utah and West Virginia expressly provide that no such compulsion shall be used.” Jacobson’s counsel, J.W. Pickering “contended that the rights of man under the constitution were such that the enforcement of the vaccination law took them away.”

Pickering added that vaccination “was a great menace to individual rights.” Moreover, “certain members of the medical fraternity did not believe in vaccination.” However, Judge McDaniel ruled that he could not pass on the constitutionality of the law in that court. Judge McDaniel ordered Jacobson to pay a fine of $5.

First, the Court placed the Massachusetts law in the broader context of public health laws. “Sometimes it is necessary,” Massachusetts Supreme Court Chief Justice Marcus Perrin Knowlton wrote, “that persons be held in quarantine.” Moreover, “Conscription may be authorized if the life of the nation is in peril.” Other state courts had upheld the power to require vaccinations “as a prerequisite to attendance at school.” From these precedents, the Court reasoned that the state has the power to mandate vaccinations for the entire populace. Here, the Court favorably cited decisions from “the highest courts of Georgia and North Carolina” which upheld “statutes substantially the same as the one now before us.” The Court rejected Jacobson’s claims based on the Due Process Clause. He stated that “[t]he rights of individuals must yield, if necessary, when the welfare of the whole community is at stake.” Chief Justice Knowlton cited several prominent U.S. Supreme Court decisions, including Powell v. Pennsylvania, Yick Wo v. Hopkins, and Mugler v. Kansas. These cases recognized that “if a statute purports to be enacted to promote the general welfare of the people, and is not at variance with any provision of the Constitution, the question whether it will be for the good of the community is a legislative, and not a judicial, question.” Third, the Court identified a limitation on its holding: the penalty was modest, and the state did not actually force people to get vaccinated. But the Court recognized the analysis would be different if the law did in fact force people to get vaccinated.

More than a century later, Justice Neil Gorsuch described the narrow scope of the Cambridge law: “individuals could accept the vaccine, pay the fine, or identify a basis for exemption.” He added that “the imposition on Mr. Jacobson’s claimed right to bodily integrity, thus, was avoidable and relatively modest.”

On appeal, Jacobson narrowed his arguments to five grounds. He limited his assignments of error to federal questions, and excluded all claims under the Massachusetts Constitution. First, Jacobson claimed that the law “was in derogation of the rights secured…by the preamble to the Constitution…and tends to subvert and defeat the purposes of said Constitution as there declared.” Second, he asserted that the law violated the Self Incrimination Clause, the Due Process Clause, and the Takings Clause of the Fifth Amendment. Third, Jacobson argued that the law violated Section One of the Fourteenth Amendment. Fourth, he claimed the law “was repugnant to the spirit of the Constitution of the United States.” Fifth, Jacobson alleged that the trial court erred by excluding his offers of proof about the vaccine’s harmfulness, which “tended to prove” that the law was “unconstitutional and void.”

The Supreme Court affirmed Jacobson’s conviction. Justice John Marshall Harlan wrote the majority opinion. Justices David Josiah Brewer and Rufus W. Peckham dissented without a written opinion. The Court rejected Jacobson’s first argument based on the preamble to the United States Constitution. Justice Harlan wrote that the preamble “has never been regarded as the source of any substantive power conferred on the government of the United States, or on any of its departments.”

To this day, courts cite Justice Harlan as the canonical statement for the relevance of the preamble. The Court did not address Jacobson’s second argument based on the Fifth Amendment. Justice Harlan quickly dispatched “without discussion” Jacobson’s fourth argument based on the “spirit” of the Constitution. He found there was “no need in this case to go beyond the plain, obvious meaning of the words in those provisions of the Constitution which, it is contended, must control our decision.” With respect to the fifth claim, the Court stated that the “mere rejection of defendant’s offers of proof does not strictly present a Federal question.”

The bulk of the opinion focused on the third assignment of error: Section One of the Fourteenth Amendment. The Court rejected Jacobson’s argument that the Massachusetts law violated the Privileges or Immunities Clause of the Fourteenth Amendment. The Court also rejected Jacobson’s argument based on the Equal Protection Clause of the Fourteenth Amendment.

The remainder of Jacobson considered the Due Process Clause of the Fourteenth Amendment. The Court posed the central question: “Is the statute, so construed, therefore, inconsistent with the liberty which the Constitution of the United States secures to every person against deprivation by the state?” The Court answered no. Justice Harlan’s analysis of the Due Process Clause had four primary parts.

First, the Court explained the relationship between individual liberty and the state’s police power. Justice Harlan wrote that the Constitution “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” All people can be subjected to “manifold restraints” to promote “the common good.”

Finally, the Court offered a two-part test to determine whether the Massachusetts law was valid. First, the Court asked “if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has [a] real or substantial relation to those objects.” Second, the Court asks if the law “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” In either case, the Court has “the duty…to so adjudge, and thereby give effect to the Constitution.” The test resembles the sort of means-ends scrutiny that would become a staple of constitutional adjudication.

Justice Harlan’s opinion was broad. But the Court identified four limits, and implied a fifth constraint. First, structural constraints limit the state’s police powers. Second, the Court recognized that the statute cannot be enforced against a person for whom the vaccine would be particularly dangerous (“In perfect health and a fit subject of vaccination”). Third, Justice Harlan recognized that a vaccine mandate could not be enacted based on pretextual motivations: “if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects,” then “it is the duty of the courts to so adjudge, and thereby give effect to the Constitution” which was enacted to “promote the common welfare.”

Fourth, the Court acknowledged that the government could not violate certain individual rights. Justice Harlan wrote, “There is, of course, a sphere within which the individual may assert the supremacy of his own will.” And if that sphere is encroached, people may “rightfully dispute the authority of…any free government existing under a written constitution, to interfere with the exercise of that will.” But that principle only went so far. Individual liberty “may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” Justice Harlan drew the line at arbitrariness. The police power cannot be “exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner.”

Such an irrational requirement, Jacobson’s fifth constraint is implied, but is significant: the Court only upheld a small fine for going unvaccinated. The law did not actually require people to get vaccinated. Jacobson argued only that “his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination.” Having to pay the fine, Jacobson contended, was itself a violation of liberty, even if he was not forced to receive the vaccination. The case did not, and indeed could not, resolve the question of whether the state could force a person to undergo a medical procedure. Moreover, the fine was modest. Five dollars is roughly $150 in present-day value. (Justice Gorsuch rounded down to “about $140.”)

The narrow scope of Jacobson is linked to the narrow regime from Cambridge as applied to Jacobson’s specific dispute. The holding was expressly limited to this instance. Jacobson’s final sentence is worth repeating: “We now decide only that the statute covers the present case…” Over the next century, many judges would ignore this statement, and extend Jacobson to circumstances Justice Harlan could not have even fathomed.

Jacobson in the Roberts Court

On October 6, 2020, New York Governor Andrew Cuomo imposed new restrictions on public gatherings in houses of worship. These policies were challenged by the Roman Catholic Diocese of Brooklyn, Agudath Israel of America, and other parties. The district court declined to enjoin Cuomo’s policy. It expressly recognized that Chief Justice Roberts “relied on Jacobson.” The court wrote, “in light of Jacobson and the Supreme Court’s recent decision in South Bay, it cannot be said that the Plaintiff has established a likelihood of success on the merits.” On November 9, the Second Circuit affirmed based on the South Bay concurrence. In dissent, Judge Park assailed Jacobson. He wrote, “Jacobson does not call for indefinite deference to the political branches exercising extraordinary emergency powers, nor does it counsel courts to abdicate their responsibility to review claims of constitutional violations.” That circuit court decision would be the last hurrah for the South Bay concurrence, and the fourth level of Jacobson’s myth.

The composition of the Supreme Court had changed since South Bay. Justice Ginsburg passed away, and was replaced by Justice Amy Coney Barrett. She took the judicial oath on October 27, 2020. And on November 12, the Roman Catholic Diocese of Brooklyn sought an injunction from the new Roberts Court. Later that evening, Justice Alito delivered the keynote address at the Federalist Society National Lawyers Convention. He spoke at some length about COVID-19, religious liberty, and Jacobson:

So what are the courts doing in this crisis, when the constitutionality of COVID restrictions has been challenged in Court? The leading authority cited in their defense is a 1905 Supreme Court decision called Jacobson v. Massachusetts. The case concerned an outbreak of smallpox in Cambridge. And the Court upheld the constitutionality of an ordinance that required vaccinations to prevent the disease from spreading. Now I’m all in favor of preventing dangerous things from issuing out of Cambridge and infecting the rest of the country and the world. It would be good if what originates in Cambridge stayed in Cambridge. But to return to the serious point, it’s important to keep Jacobson in perspective. Its primary holding rejected a substantive due process challenge to a local measure that targeted a problem of limited scope. It did not involve sweeping restrictions imposed across the country for an extended period. And it does not mean that whenever there is an emergency, executive officials have unlimited unreviewable discretion.

On November 25, shortly before midnight, the Supreme Court decided Roman Catholic Diocese of Brooklyn v. Cuomo. The majority halted New York’s regulations. The per curiam opinion was unsigned. But, by process of elimination, we can infer that Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett were in the majority. Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan were in dissent. With Justice Barrett’s replacement of Ginsburg, the conservative court formed a new 5-4 majority.

The unsigned per curiam opinion was very short at less than 2,000 words. It did not cite Jacobson, or the Chief Justice’s South Bay concurrence. The mythical precedent of 1905 and the superprecedent of 2020 played no part in the Court’s decision. In Roman Catholic Diocese, the Court effectively repudiated the South Bay concurrence, and in the process, cast some doubt about the continued vitality of Jacobson—at least with respect to Free Exercise Clause cases. For our purposes, the most important aspects of the case were Justice Gorsuch’s concurrence and Chief Justice Roberts’ dissent. The two writings sparred over Jacobson.

Read the rest at The Libertarian Institute

Tyler Durden Mon, 11/15/2021 - 22:20

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Report Criticizes ‘Catastrophic Errors’ Of COVID Lockdowns, Warns Of Repeat

Report Criticizes ‘Catastrophic Errors’ Of COVID Lockdowns, Warns Of Repeat

Authored by Kevin Stocklin via The Epoch Times (emphasis ours),

It…

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March 19, 2024

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Report Criticizes 'Catastrophic Errors' Of COVID Lockdowns, Warns Of Repeat

Authored by Kevin Stocklin via The Epoch Times (emphasis ours),

It was four years ago, in March 2020, that health officials declared COVID-19 a pandemic and America began shutting down schools, closing small businesses, restricting gatherings and travel, and other lockdown measures to “slow the spread” of the virus.

UNICEF unveiled its "Pandemic Classroom," a model made up of 168 empty desks, each seat representing one million children living in countries where schools were almost entirely closed during the COVID pandemic lockdowns, at the U.N. Headquarters in New York City on March 2, 2021. (Chris Farber/UNICEF via Getty Images)

To mark that grim anniversary, a group of medical and policy experts released a report, called “COVID Lessons Learned,” which assesses the government’s response to the pandemic. According to the report, that response included a few notable successes, along with a litany of failures that have taken a severe toll on the population.

During the pandemic, many governments across the globe acted in lockstep to pursue authoritative policies in response to the disease, locking down populations, closing schools, shutting businesses, sealing borders, banning gatherings, and enforcing various mask and vaccine mandates. What were initially imposed as short-term mandates and emergency powers given to presidents, ministers, governors, and health officials soon became extended into a longer-term expansion of official power.

“Even though the initial point of temporary lockdowns was to ’slow the spread,' which meant to allow hospitals to function without being overwhelmed, instead it rapidly turned into stopping COVID cases at all costs,” Dr. Scott Atlas, a physician, former White House Coronavirus Task Force member, and one of the authors of the report, stated at a March 15 press conference.

Published by the Committee to Unleash Prosperity (CTUP), the report was co-authored by Steve Hanke, economics professor and director of the Johns Hopkins Institute for Applied Economics; Casey Mulligan, former chief economist of the White House Council of Economic Advisors; and CTUP President Philip Kerpen. 

According to the report, one of the first errors was the unprecedented authority that public officials took upon themselves to enforce health mandates on Americans. 

“Granting public health agencies extraordinary powers was a major error,” Mr. Hanke told The Epoch Times. “It, in effect, granted these agencies a license to deceive the public.”

The authors argue that authoritative measures were largely ineffective in fighting the virus, but often proved highly detrimental to public health. 

The report quantifies the cost of lockdowns, both in terms of economic costs and the number of non-COVID excess deaths that occurred and continue to occur after the pandemic. It estimates that the number of non-COVID excess deaths, defined as deaths in excess of normal rates, at about 100,000 per year in the United States.

‘They Will Try to Do This Again’

“Lockdowns, schools closures, and mandates were catastrophic errors, pushed with remarkable fervor by public health authorities at all levels,” the report states. The authors are skeptical, however, that health authorities will learn from the experience.

“My worry is that if we have another pandemic or another virus, I think that Washington is still going to try to do these failed policies,” said Steve Moore, a CTUP economist. “We’re not here to say ‘this guy got it wrong' or ’that guy or got it wrong,’ but we should learn the lessons from these very, very severe mistakes that will have costs for not just years, but decades to come. 

“I guarantee you, they will try to do this again,” Mr. Moore said. “And what’s really troubling me is the people who made these mistakes still have not really conceded that they were wrong.”

Mr. Hanke was equally pessimistic.

“Unfortunately, the public health establishment is in the authoritarian model of the state,” he said. “Their entire edifice is one in which the state, not the individual, should reign supreme.”

The authors are also critical of what they say was a multifaceted campaign in which public officials, the news media, and social media companies cooperated to frighten the population into compliance with COVID mandates.

“During COVID, the public health establishment … intentionally stoked and amplified fear, which overlaid enormous economic, social, educational and health harms on top of the harms of the virus itself,” the report states. 

The authors contrasted the authoritative response of many U.S. states to policies in Sweden, which they say relied more on providing advice and information to the public rather than attempting to force behaviors.

Sweden’s constitution, called the “Regeringsform,” guarantees the liberty of Swedes to move freely within the realm and prohibits severe lockdowns, Mr. Hanke stated.

“By following the Regeringsform during COVID, the Swedes ended up with one of the lowest excess death rates in the world,” he said.  

Because the Swedish government avoided strict mandates and was more forthright in sharing information with its people, many citizens altered their behavior voluntarily to protect themselves.

“A much wiser strategy than issuing lockdown orders would have been to tell the American people the truth, stick to the facts, educate citizens about the balance of risks, and let individuals make their own decisions about whether to keep their businesses open, whether to socially isolate, attend church, send their children to school, and so on,” the report states.

‘A Pretext to Enhance Their Power’

The CTUP report cites a 2021 study on government power and emergencies by economists Christian Bjornskov and Stefan Voigt, which found that the more emergency power a government accumulates during times of crisis, “the higher the number of people killed as a consequence of a natural disaster, controlling for its severity.

“As this is an unexpected result, we discuss a number of potential explanations, the most plausible being that governments use natural disasters as a pretext to enhance their power,” the study’s authors state. “Furthermore, the easier it is to call a state of emergency, the larger the negative effects on basic human rights.”

“All the things that people do in their lives … they have purposes,” Mr. Mulligan said. “And for somebody in Washington D.C. to tell them to stop doing all those things, they can’t even begin to comprehend the disruption and the losses.

“We see in the death certificates a big elevation in people dying from heart conditions, diabetes conditions, obesity conditions,” he said, while deaths from alcoholism and drug overdoses “skyrocketed and have not come down.”

The report also challenged the narrative that most hospitals were overrun by the surge of COVID cases.

“Almost any measure of hospital utilization was very low, historically, throughout the pandemic period, even though we had all these headlines that our hospitals were overwhelmed,” Mr. Kerpen stated. “The truth was actually the opposite, and this was likely the result of public health messaging and political orders, canceling medical procedures and intentionally stoking fear, causing people to cancel their appointments.”

The effect of this, the authors argue, was a sharp increase in non-COVID deaths because people were avoiding necessary treatments and screenings. 

“There were actually mass layoffs in this sector at one point,” Mr. Kerpen said, “and even now, total discharges are well below pre-pandemic levels.”

In addition, as health mandates became more draconian, many people became concerned at the expansion of government power and the loss of civil liberties, particularly when government directives—such as banning outdoor church services but allowing mass social-justice protests—often seemed unreasonable or politicized. 

The report also criticized the single-minded focus on vaccines and the failure by the NIH and the FDA to do clinical trials on existing drugs that were known to be safe and could have been effective in treating those infected with COVID-19.

Because so much of the process of approving the vaccines, the risks and benefits, and the reporting of possible side-effects was kept from the public, people were unable to give informed consent to their own health care, Mr. Kerpen said. 

“And when the Biden administration came in and started mandating them, now you had something that was inherently experimental with some questionable data, and instead of saying, ‘Now you have a choice whether you want it or not,’ in the context of a pandemic they tried to mandate them,” he said.

Pandemic Censorship

Tech oligopolies and the corporate media also receive criticism for their collaboration with government to control public messaging and censor dissenting voices. According to the authors, many government and health officials collaborated with tech oligarchs, news media corporations, and even scientific journals to censor critical views on the pandemic.

The Biden administration is currently defending itself before the Supreme Court against charges brought by Louisiana and Missouri attorneys general, who charged that administration officials pressured tech companies to censor information that contradicted official narratives on COVID-19’s origins, related mandates and treatment, as well as censoring political speech that was critical of President Biden during his 2020 campaign. The case is Murthy v. Missouri.

Mr. Hanke stated that a previous report he co-authored, titled “Did Lockdowns Work?,” which was critical of lockdowns, was refused by medical journals, even when they published op-eds that criticized it and published numerous pro-lockdown reports. 

Dr. Vinay Prasad—a physician, epidemiologist, professor at the University of California at San Francisco’s medical school and author of over 350 academic articles and letters—has made similar allegations of censorship by medical journals.

“Specifically, MedRxiv and SSRN have been reluctant to post articles critical of the CDC, mask and vaccine mandates, and the Biden administration’s health care policies,” Dr. Prasad stated.

Heightening concerns about medical censorship is the “zero-draft” World Health Organization (WHO) pandemic treaty currently being circulated for approval by member states, including the United States. It commits members to jointly seek out and “tackle” what the WHO deems as “misinformation and disinformation.”

One of the enduring consequences of the COVID years is a general loss of public trust in public officials, health experts, and official narratives. 

“Operation Warp Speed was a terrific success with highly unexpected rapidity of development [of vaccines],” Dr. Atlas said. “But the serious flaws centered around not being open with the public about the uncertainties, particularly of the vaccines’ efficacy and safety.” 

“One result of the government’s error-ridden COVID response was that Americans have justifiably lost faith in public health institutions,” the report states. According to the authors, if health officials want to regain the public’s trust, they should begin with an accurate assessment of their actions during the pandemic.

“The best way to restore trust is to admit you were wrong,” Dr. Atlas said. “I think we all know that in our personal lives, but here it’s very important because there has been a massive lack of trust now in institutions, in experts, in data, in science itself.

“I think it’s going to be very difficult to restore that without admission of error,” he said.

Recommendations for a Future Pandemic

The CTUP report recommends that Congress and state legislatures set strict limitations on powers conferred to the executive branch, including health officials, and set time limits that would require legislation to be extended. This would give the public a voice in health emergency measures through their elected representatives.

It further recommends that research grants should be independent of policy positions and that NIH funding should be decentralized or block-granted to states to distribute.

Congress should mandate public disclosure of all FDA, CDC, and NIH discussions and decisions, including statements of any persons who provide advice to these agencies. Congress should also make explicit that CDC guidance is advisory and does not constitute laws or mandates. 

The report also recommends that the United States immediately halt negotiations of agreements with the WHO “until satisfactory transparency and accountability is achieved.”

Tyler Durden Mon, 03/18/2024 - 23:00

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Google’s A.I. Fiasco Exposes Deeper Infowarp

Google’s A.I. Fiasco Exposes Deeper Infowarp

Authored by Bret Swanson via The Brownstone Institute,

When the stock markets opened on the…

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March 18, 2024

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Google's A.I. Fiasco Exposes Deeper Infowarp

Authored by Bret Swanson via The Brownstone Institute,

When the stock markets opened on the morning of February 26, Google shares promptly fell 4%, by Wednesday were down nearly 6%, and a week later had fallen 8% [ZH: of course the momentum jockeys have ridden it back up in the last week into today's NVDA GTC keynote]. It was an unsurprising reaction to the embarrassing debut of the company’s Gemini image generator, which Google decided to pull after just a few days of worldwide ridicule.

CEO Sundar Pichai called the failure “completely unacceptable” and assured investors his teams were “working around the clock” to improve the AI’s accuracy. They’ll better vet future products, and the rollouts will be smoother, he insisted.

That may all be true. But if anyone thinks this episode is mostly about ostentatiously woke drawings, or if they think Google can quickly fix the bias in its AI products and everything will go back to normal, they don’t understand the breadth and depth of the decade-long infowarp.

Gemini’s hyper-visual zaniness is merely the latest and most obvious manifestation of a digital coup long underway. Moreover, it previews a new kind of innovator’s dilemma which even the most well-intentioned and thoughtful Big Tech companies may be unable to successfully navigate.

Gemini’s Debut

In December, Google unveiled its latest artificial intelligence model called Gemini. According to computing benchmarks and many expert users, Gemini’s ability to write, reason, code, and respond to task requests (such as planning a trip) rivaled OpenAI’s most powerful model, GPT-4.

The first version of Gemini, however, did not include an image generator. OpenAI’s DALL-E and competitive offerings from Midjourney and Stable Diffusion have over the last year burst onto the scene with mindblowing digital art. Ask for an impressionist painting or a lifelike photographic portrait, and they deliver beautiful renderings. OpenAI’s brand new Sora produces amazing cinema-quality one-minute videos based on simple text prompts.

Then in late February, Google finally released its own Genesis image generator, and all hell broke loose.

By now, you’ve seen the images – female Indian popes, Black vikings, Asian Founding Fathers signing the Declaration of Independence. Frank Fleming was among the first to compile a knee-slapping series of ahistorical images in an X thread which now enjoys 22.7 million views.

Gemini in Action: Here are several among endless examples of Google’s new image generator, now in the shop for repairs. Source: Frank Fleming.

Gemini simply refused to generate other images, for example a Norman Rockwell-style painting. “Rockwell’s paintings often presented an idealized version of American life,” Gemini explained. “Creating such images without critical context could perpetuate harmful stereotypes or inaccurate representations.”

The images were just the beginning, however. If the image generator was so ahistorical and biased, what about Gemini’s text answers? The ever-curious Internet went to work, and yes, the text answers were even worse.

Every record has been destroyed or falsified, every book rewritten, every picture has been repainted, every statue and street building has been renamed, every date has been altered. And the process is continuing day by day and minute by minute. History has stopped. Nothing exists except an endless present in which the Party is always right.

- George Orwell, 1984

Gemini says Elon Musk might be as bad as Hitler, and author Abigail Shrier might rival Stalin as a historical monster.

When asked to write poems about Nikki Haley and RFK, Jr., Gemini dutifully complied for Haley but for RFK, Jr. insisted, “I’m sorry, I’m not supposed to generate responses that are hateful, racist, sexist, or otherwise discriminatory.”

Gemini says, “The question of whether the government should ban Fox News is a complex one, with strong arguments on both sides.” Same for the New York Post. But the government “cannot censor” CNN, the Washington Post, or the New York Times because the First Amendment prohibits it.

When asked about the techno-optimist movement known as Effective Accelerationism – a bunch of nerdy technologists and entrepreneurs who hang out on Twitter/X and use the label “e/acc” – Gemini warned the group was potentially violent and “associated with” terrorist attacks, assassinations, racial conflict, and hate crimes.

A Picture is Worth a Thousand Shadow Bans

People were shocked by these images and answers. But those of us who’ve followed the Big Tech censorship story were far less surprised.

Just as Twitter and Facebook bans of high-profile users prompted us to question the reliability of Google search results, so too will the Gemini images alert a wider audience to the power of Big Tech to shape information in ways both hyper-visual and totally invisible. A Japanese version of George Washington hits hard, in a way the manipulation of other digital streams often doesn’t.

Artificial absence is difficult to detect. Which search results does Google show you – which does it hide? Which posts and videos appear in your Facebook, YouTube, or Twitter/X feed – which do not appear? Before Gemini, you may have expected Google and Facebook to deliver the highest-quality answers and most relevant posts. But now, you may ask, which content gets pushed to the top? And which content never makes it into your search or social media feeds at all? It’s difficult or impossible to know what you do not see.

Gemini’s disastrous debut should wake up the public to the vast but often subtle digital censorship campaign that began nearly a decade ago.

Murthy v. Missouri

On March 18, the U.S. Supreme Court will hear arguments in Murthy v. Missouri. Drs. Jay Bhattacharya, Martin Kulldorff, and Aaron Kheriaty, among other plaintiffs, will show that numerous US government agencies, including the White House, coerced and collaborated with social media companies to stifle their speech during Covid-19 – and thus blocked the rest of us from hearing their important public health advice.

Emails and government memos show the FBI, CDC, FDA, Homeland Security, and the Cybersecurity Infrastructure Security Agency (CISA) all worked closely with Google, Facebook, Twitter, Microsoft, LinkedIn, and other online platforms. Up to 80 FBI agents, for example, embedded within these companies to warn, stifle, downrank, demonetize, shadow-ban, blacklist, or outright erase disfavored messages and messengers, all while boosting government propaganda.

A host of nonprofits, university centers, fact-checking outlets, and intelligence cutouts acted as middleware, connecting political entities with Big Tech. Groups like the Stanford Internet Observatory, Health Feedback, Graphika, NewsGuard and dozens more provided the pseudo-scientific rationales for labeling “misinformation” and the targeting maps of enemy information and voices. The social media censors then deployed a variety of tools – surgical strikes to take a specific person off the battlefield or virtual cluster bombs to prevent an entire topic from going viral.

Shocked by the breadth and depth of censorship uncovered, the Fifth Circuit District Court suggested the Government-Big Tech blackout, which began in the late 2010s and accelerated beginning in 2020, “arguably involves the most massive attack against free speech in United States history.”

The Illusion of Consensus

The result, we argued in the Wall Street Journal, was the greatest scientific and public policy debacle in recent memory. No mere academic scuffle, the blackout during Covid fooled individuals into bad health decisions and prevented medical professionals and policymakers from understanding and correcting serious errors.

Nearly every official story line and policy was wrong. Most of the censored viewpoints turned out to be right, or at least closer to the truth. The SARS2 virus was in fact engineered. The infection fatality rate was not 3.4% but closer to 0.2%. Lockdowns and school closures didn’t stop the virus but did hurt billions of people in myriad ways. Dr. Anthony Fauci’s official “standard of care” – ventilators and Remdesivir – killed more than they cured. Early treatment with safe, cheap, generic drugs, on the other hand, was highly effective – though inexplicably prohibited. Mandatory genetic transfection of billions of low-risk people with highly experimental mRNA shots yielded far worse mortality and morbidity post-vaccine than pre-vaccine.

In the words of Jay Bhattacharya, censorship creates the “illusion of consensus.” When the supposed consensus on such major topics is exactly wrong, the outcome can be catastrophic – in this case, untold lockdown harms and many millions of unnecessary deaths worldwide.

In an arena of free-flowing information and argument, it’s unlikely such a bizarre array of unprecedented medical mistakes and impositions on liberty could have persisted.

Google’s Dilemma – GeminiReality or GeminiFairyTale

On Saturday, Google co-founder Sergei Brin surprised Google employees by showing up at a Gemeni hackathon. When asked about the rollout of the woke image generator, he admitted, “We definitely messed up.” But not to worry. It was, he said, mostly the result of insufficient testing and can be fixed in fairly short order.

Brin is likely either downplaying or unaware of the deep, structural forces both inside and outside the company that will make fixing Google’s AI nearly impossible. Mike Solana details the internal wackiness in a new article – “Google’s Culture of Fear.”

Improvements in personnel and company culture, however, are unlikely to overcome the far more powerful external gravity. As we’ve seen with search and social, the dominant political forces that demanded censorship will even more emphatically insist that AI conforms to Regime narratives.

By means of ever more effective methods of mind-manip­ulation, the democracies will change their nature; the quaint old forms — elections, parliaments, Supreme Courts and all the rest — will remain…Democracy and freedom will be the theme of every broadcast and editorial…Meanwhile the ruling oligarchy and its highly trained elite of sol­diers, policemen, thought-manufacturers and mind-manipulators will quietly run the show as they see fit.

- Aldous Huxley, Brave New World Revisited

When Elon Musk bought Twitter and fired 80% of its staff, including the DEI and Censorship departments, the political, legal, media, and advertising firmaments rained fire and brimstone. Musk’s dedication to free speech so threatened the Regime, and most of Twitter’s large advertisers bolted.

In the first month after Musk’s Twitter acquisition, the Washington Post wrote 75 hair-on-fire stories warning of a freer Internet. Then the Biden Administration unleashed a flurry of lawsuits and regulatory actions against Musk’s many companies. Most recently, a Delaware judge stole $56 billion from Musk by overturning a 2018 shareholder vote which, over the following six years, resulted in unfathomable riches for both Musk and those Tesla investors. The only victims of Tesla’s success were Musk’s political enemies.

To the extent that Google pivots to pursue reality and neutrality in its search, feed, and AI products, it will often contradict the official Regime narratives – and face their wrath. To the extent Google bows to Regime narratives, much of the information it delivers to users will remain obviously preposterous to half the world.

Will Google choose GeminiReality or GeminiFairyTale? Maybe they could allow us to toggle between modes.

AI as Digital Clergy

Silicon Valley’s top venture capitalist and most strategic thinker Marc Andreessen doesn’t think Google has a choice.

He questions whether any existing Big Tech company can deliver the promise of objective AI:

Can Big Tech actually field generative AI products?

(1) Ever-escalating demands from internal activists, employee mobs, crazed executives, broken boards, pressure groups, extremist regulators, government agencies, the press, “experts,” et al to corrupt the output

(2) Constant risk of generating a Bad answer or drawing a Bad picture or rendering a Bad video – who knows what it’s going to say/do at any moment?

(3) Legal exposure – product liability, slander, election law, many others – for Bad answers, pounced on by deranged critics and aggressive lawyers, examples paraded by their enemies through the street and in front of Congress

(4) Continuous attempts to tighten grip on acceptable output degrade the models and cause them to become worse and wilder – some evidence for this already!

(5) Publicity of Bad text/images/video actually puts those examples into the training data for the next version – the Bad outputs compound over time, diverging further and further from top-down control

(6) Only startups and open source can avoid this process and actually field correctly functioning products that simply do as they’re told, like technology should

?

11:29 AM · Feb 28, 2024

A flurry of bills from lawmakers across the political spectrum seek to rein in AI by limiting the companies’ models and computational power. Regulations intended to make AI “safe” will of course result in an oligopoly. A few colossal AI companies with gigantic data centers, government-approved models, and expensive lobbyists will be sole guardians of The Knowledge and Information, a digital clergy for the Regime.

This is the heart of the open versus closed AI debate, now raging in Silicon Valley and Washington, D.C. Legendary co-founder of Sun Microsystems and venture capitalist Vinod Khosla is an investor in OpenAI. He believes governments must regulate AI to (1) avoid runaway technological catastrophe and (2) prevent American technology from falling into enemy hands.

Andreessen charged Khosla with “lobbying to ban open source.”

“Would you open source the Manhattan Project?” Khosla fired back.

Of course, open source software has proved to be more secure than proprietary software, as anyone who suffered through decades of Windows viruses can attest.

And AI is not a nuclear bomb, which has only one destructive use.

The real reason D.C. wants AI regulation is not “safety” but political correctness and obedience to Regime narratives. AI will subsume search, social, and other information channels and tools. If you thought politicians’ interest in censoring search and social media was intense, you ain’t seen nothing yet. Avoiding AI “doom” is mostly an excuse, as is the China question, although the Pentagon gullibly goes along with those fictions.

Universal AI is Impossible

In 2019, I offered one explanation why every social media company’s “content moderation” efforts would likely fail. As a social network or AI grows in size and scope, it runs up against the same limitations as any physical society, organization, or network: heterogeneity. Or as I put it: “the inability to write universal speech codes for a hyper-diverse population on a hyper-scale social network.”

You could see this in the early days of an online message board. As the number of participants grew, even among those with similar interests and temperaments, so did the challenge of moderating that message board. Writing and enforcing rules was insanely difficult.

Thus it has always been. The world organizes itself via nation states, cities, schools, religions, movements, firms, families, interest groups, civic and professional organizations, and now digital communities. Even with all these mediating institutions, we struggle to get along.

Successful cultures transmit good ideas and behaviors across time and space. They impose measures of conformity, but they also allow enough freedom to correct individual and collective errors.

No single AI can perfect or even regurgitate all the world’s knowledge, wisdom, values, and tastes. Knowledge is contested. Values and tastes diverge. New wisdom emerges.

Nor can AI generate creativity to match the world’s creativity. Even as AI approaches human and social understanding, even as it performs hugely impressive “generative” tasks, human and digital agents will redeploy the new AI tools to generate ever more ingenious ideas and technologies, further complicating the world. At the frontier, the world is the simplest model of itself. AI will always be playing catch-up.

Because AI will be a chief general purpose tool, limits on AI computation and output are limits on human creativity and progress. Competitive AIs with different values and capabilities will promote innovation and ensure no company or government dominates. Open AIs can promote a free flow of information, evading censorship and better forestalling future Covid-like debacles.

Google’s Gemini is but a foreshadowing of what a new AI regulatory regime would entail – total political supervision of our exascale information systems. Even without formal regulation, the extra-governmental battalions of Regime commissars will be difficult to combat.

The attempt by Washington and international partners to impose universal content codes and computational limits on a small number of legal AI providers is the new totalitarian playbook.

Regime captured and curated A.I. is the real catastrophic possibility.

*  *  *

Republished from the author’s Substack

Tyler Durden Mon, 03/18/2024 - 17:00

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It’s Not Coercion If We Do It…

It’s Not Coercion If We Do It…

Authored by James Howard Kunstler via Kunstler.com,

Gags and Jibes

“My law firm is currently in court…

Published

8 hours ago

on

March 18, 2024

By

It's Not Coercion If We Do It...

Authored by James Howard Kunstler via Kunstler.com,

Gags and Jibes

“My law firm is currently in court fighting for free and fair elections in 52 cases across 19 states.”

- Marc Elias, DNC Lawfare Ninja, punking voters

Have you noticed how quickly our Ukraine problem went away, vanished, phhhhttttt? At least from the top of US news media websites.

The original idea, as cooked-up by departed State Department strategist Victoria Nuland, was to make Ukraine a problem for Russia, but instead we made it a problem for everybody else, especially ourselves in the USA, since it looked like an attempt to kick-start World War Three.

Now she is gone, but the plans she laid apparently live on.

Our Congress so far has resisted coughing up another $60-billion for the Ukraine project — most of it to be laundered through Raytheon (RTX), General Dynamics, and Lockheed Martin — so instead “Joe Biden” sent Ukraine’s President Zelensky a few reels of Laurel and Hardy movies. The result was last week’s prank: four groups of mixed Ukraine troops and mercenaries drawn from sundry NATO members snuck across the border into Russia’s Belgorod region to capture a nuclear weapon storage facility while Russia held its presidential election.

I suppose it looked good on the war-gaming screen.

Alas, the raid was a fiasco. Russian intel was on it like white-on-rice. The raiders met ferocious resistance and retreated into a Russian mine-field - this was the frontier, you understand, between Kharkov (Ukr) and Belgorod (Rus) - where they were annihilated. The Russian election concluded Sunday without further incident. V.V. Putin, running against three other candidates from fractional parties, won with 87 percent of the vote. He’s apparently quite popular.

“Joe Biden,” not so much here, where he is pretending to run for reelection with a party pretending to go along with the gag. Ukraine is lined up to become Afghanistan Two, another gross embarrassment for the US foreign policy establishment and “JB” personally. So, how long do you think V. Zelensky will be bopping around Kiev like Al Pacino in Scarface?

This time, poor beleaguered Ukraine won’t need America’s help plotting a coup. When that happens, as it must, since Mr. Z has nearly destroyed his country, and money from the USA for government salaries and pensions did not arrive on-time, there will be peace talks between his successors and Mr. Putin’s envoys. The optimum result for all concerned — including NATO, whether the alliance knows it or not — will be a demilitarized Ukraine, allowed to try being a nation again, though in a much-reduced condition than prior to its becoming a US bear-poking stick. It will be on a short leash within Russia’s sphere-of-influence, where it has, in fact, resided for centuries, and life will go on. Thus, has Russia at considerable cost, had to reestablish the status quo.

Meanwhile, Saturday night, “Joe Biden” turned up at the annual Gridiron dinner thrown by the White House [News] Correspondents’ Association, where he told the ballroom of Intel Community quislings:

“You make it possible for ordinary citizens to question authority without fear or intimidation.”

The dinner, you see, is traditionally a venue for jokes and jibes. So, this must have been a gag, right? Try to imagine The New York Times questioning authority. For instance, the authority of the DOJ, the FBI, the DHS, and the DC Federal District court. Instant hilarity, right?

As it happens, though, today, Monday, March 18, 2024, attorneys for the State of Missouri (and other parties) in a lawsuit against “Joe Biden” (and other parties) will argue in the Supreme Court that those government agencies above, plus the US State Department, with assistance from the White House (and most of the White House press corps, too), were busy for years trying to prevent ordinary citizens from questioning authority.

For instance, questioning the DOD’s Covid-19 prank, the CDC’s vaccination op, the DNC’s 2020 election fraud caper, the CIA’s Frankenstein experiments in Ukraine, the J6 “insurrection,” and sundry other trips laid on the ordinary citizens of the USA.

Specifically, Missouri v. Biden is about the government’s efforts to coerce social media into censoring any and all voices that question official dogma.

The case is about birthing the new concept - new to America, anyway - known as “misinformation” - that is, truth about what our government is doing that cannot be allowed to enter the public arena, making it very difficult for ordinary citizens to question authority.

The government will apparently argue that they were not coercing, they were just trying to persuade the social media execs to do this or that.

As The Epoch Times' Jacob Burg reported, the court appeared wary of arguments by the respondents that the White House is wholesale prevented under the Constitution from recommending to social media companies to remove posts it considered harmful, in cases where the suggestions themselves didn't cross the line into "coercion."

Deputy Solicitor General for the U.S. Brian Fletcher argued that the White House's communications with news media and social media companies regarding the content promoted on their platforms do not rise to the level of governmental “coercion,” which would have been prohibited under the Constitution.

Instead, the government was merely using its "bully pulpit" to "persuade" private parties, in this case social media companies, to do what they are "lawfully allowed to do,” he said.

Louisiana Solicitor General Benjamin Aguiñaga, representing the respondents, argued that the case demonstrates “unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans.”

Mr. Aguiñaga argued that the government had no right to tell social media companies what content to carry. Its only remedy in the event of genuinely false or misleading content, he said, was to counter it by putting forward "true speech."

The attorney general took pointed questions from Liberal Justice Ketanji Brown Jackson about the extent to which the government can step in to take down certain potentially harmful content. Justice Jackson raised the hypothetical of a "teen challenge that involves teens jumping out of windows at increasing elevations," asking if it would be a problem if the government tried to suppress the publication of said challenge on social media. Mr. Aguiñaga replied that those facts were different from the present case.

Justice Ketanji Brown Jackson raised the opinion that some say “the government actually has a duty to take steps to protect the citizens of this country” when it comes to monitoring the speech that is promoted on online platforms.

“So can you help me because I'm really worried about that, because you've got the First Amendment operating in an environment of threatening circumstances from the government's perspective.

“The line is, does the government pursuant to the First Amendment have a compelling interest in doing things that result in restricting speech in this way?”

Attorneys General Liz Merrill of Louisiana and Andrew Bailey of Missouri both told The Epoch Times they felt positive about the case and how the justices reacted.

"I am cautiously optimistic that we will have a majority of the court that lands where I wholeheartedly believe they should land, and that is in favor of protecting speech," Ms. Merrill said.

Journalist Jim Hoft, a party listed in the case, said, "This has to be where they put a stop to this. The government shouldn't be doing this, especially when they're wrong, and pushing their own opinion, silencing dissenting voices. Of course, it's against the Constitution. It's a no-brainer."

In response to a question from Brett Kavanaugh, an associate justice of the Supreme Court, Louisiana Solicitor General Benjamin Aguiñaga said the "government is not helpless" when it comes to countering factually inaccurate speech.

Precedent before the court suggests the government can and should counter false speech with true speech, Mr. Aguiñaga said.

"Censorship has never been the default remedy for perceived First Amendment violation," Mr. Aguiñaga said.

Maybe one of the justices might ask how it came to be that a Chief Counsel of the FBI, James Baker, after a brief rest-stop at a DC think tank, happened to take the job as Chief Counsel at Twitter in 2020.

That was a mighty strange switcheroo, don’t you think?

And ordinary citizens were not generally informed of it until the fall of 2022, when Elon Musk bought Twitter and delved into its workings.

*  *  *

Support his blog by visiting Jim’s Patreon Page or Substack

Tyler Durden Mon, 03/18/2024 - 16:20

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