Here we are in April of 2024. Missouri v. Biden has morphed into Murthy vs. Missouri. Different name, same case.
For anyone living in a cave or under a rock (which, given the state of the world in the last few years, seems like a very reasonable lifestyle choice), this case started with a group of litigants (including FSIM alumni Jay Bhattacharya and Aaron Kheriaty) suing the federal government for violating their free speech rights. Unlike a more overt dictatorship where reprehensible, dangerous truth-telling dissidents are jailed or killed, the censorship by Biden et. al. was more subtle. In our modern e-connected age, Biden’s minions simply “asked” social media sites to throttle or ban opinions that the government had determined to be too problematic.
The evidence that they did this is overwhelming and egregious. So much so that the lower court judge who decided against the government called the situation “Orwellian”. But as expected, the case was appealed and is now in the supreme court.
I’m from the government and I’m here to help
The government’s defence is not “We didn’t do it!”, but rather “We’re allowed to do it!”. Because, y’know, they have to protect the public. And how can they protect us if they don’t censor us?
Frighteningly, but not surprisingly, what most of us clear-eyed humans think should be a slam-dunk finding against the government is being muddied and obfuscated.
Bad Justices = Bad Justice
The most clear example of the lack of clarity is from Supreme Court Justice Ketanji Brown-Jackson. I’ll come back to what she said about this case, but first a short aside about why she is there opining in the first place.
Those readers who follow US politics will recognize her name as the ultimate diversity hire. She was selected for the Supreme Court of the USA (SCOTUS) because she was black, and a woman. Then during her confirmation she was unable to define what a woman is, with the reasoning “I’m not a biologist”. My expectations of her were low, and she didn’t disappoint.
(As an aside, SCOTUS Justice Sotomayor is definitely in the running for ultimate diversity hire. Some of her statements and decisions have been doozies, but perhaps her most glaring demonstration of low IQ was her finding that upheld government power to violate citizen’s rights on the basis of COVID risk, when she stated that “Those numbers show that omicron is as deadly and causes as much serious disease in the unvaccinated as delta did. … We have over 100,000 children [hospitalized], which we’ve never had before, in serious condition and many on ventilators.” The actual number of hospitalized kids at the time was under 5000, with the vast majority of those being “incidental” COVID patients who had been hospitalized for a broken leg, or appendicitis, and happened to swab positive. Even the Washington Post had to admit that she was wrong (but not without taking a swipe at one of the conservative justices in the article)
Back to Justice Brown-Jackson and her take on Murthy vs. Missouri. She stated that she was “really worried” about “the First Amendment hamstringing the Government in significant ways in the most important time periods”. To paraphrase her, we have to let the government censor our speech, so that they can have enough power to rule us properly.
Y’know what would be great? More legislation.
My guess is that a final decision will not be clear. It will assume the government does have the legal and moral authority to censor citizens, but will suggest that there should be limits on that power. In the longer term, this probably will require more legislation. Hundreds of pages of legalese, clauses, conditions, exceptions, and more. And in the end we’ll be worse off than we were previously.
Because rather than provide clarity, more rules often do the opposite. The more, and more complicated, are our laws, the more difficult it is for justice to be blind.
Many libertarian-leaning thinkers have pointed out that when we have hundreds of thousands of pages of statutes, it is impossible not to violate them regularly, and thus enforcement becomes necessarily arbitrary. For some this arbitrariness is a feature and not a bug. It hands an opportunity to unscrupulous politicians and functionaries and a weapon that they can wield at their enemies.
Some estimates are that the average US citizen commits three felonies per day. Obviously we can’t prosecute and jail every citizen. So we get selective prosecution, or what some call “lawfare”.
Benavides (the former dictator of Peru) said: "To my friends, everything. To my enemies, the law."
We’re not a communist state (yet), and we’d like to think that doesn’t happen here in more civilized societies. But sadly, it does.
From Obama targeting enemies for tax audits, to functionaries dragging their heels in the prosecution of Hunter Biden, to the ongoing lawfare against Trump (even The National Review - no fans of Trump! - have talked about the capriciousness of this case), again and again we see selective application of the rules by the rule-appliers.
Lawfare, Canadian Style
Here in Canuckistan, we see the same thing happen over and over again. Want to block a railway line, strand thousands of passengers and block the movement of freight? That’s not a problem, as long as you’re doing it in the name of native rights. Same for shutting down The Canso Causeway, the only link between mainland Nova Scotia and Cape Breton, and an important ambulance route.
In fact, if you want to blockade The Causeway, or even the MacDonald Bridge in Halifax during rush hour to “demand climate action”, you can even announce it in advance and have the police there to keep you safe.
But if you’re on the wrong side of the political aisle, the government can take pre-emptive action (and get it approved by slimy judges) to make sure you don’t get your message out there. Because, of course, it would have been extremely dangerous for a few dozen or few hundred people to gather together outside. Compare this to the tacit support of huge BLM protests at the height of lockdowns and COVID fear in summer of 2020. There were no injunctions against them.
And we certainly all know what happens when you protest for unacceptable fringe minority reasons and refuse to be cowed.
There are now many of us who have been on the wrong side of a regulatory college complaint about issues that have nothing to do with our practice of medicine or nursing. We discovered the hard way that “the process is the punishment”. We are told that the college takes every complaint seriously, and that the process has to be respected in all cases. Thus it is very deranging and gaslighting to know that complaints against Medical Officers of Health or other “right-thinking” physicians were dismissed without any hearing or consideration, or demand of a reply from the subject of the complaint.
Justice SHOULD be blind, but…
We are not free if justice is not blind. And increasingly, it is not. It’s hard to aim a weapon with your eyes closed.
I, for one, am watching for the Murthy vs. Missouri SCOTUS decision with bated breath. The idea of Justice Brown-Jackson and others - that Free Speech is a privilege that can be taken away when the government of the day feels necessary - is a demonstration of the deep moral rot that has set into our culture in The West. Free Speech is not just a means to an end, it is an end in itself. Freedom should be a North Star. I pray we can stay pointed towards it.
First, i will forever be grateful to Pat Buchanan for coming up with 'Canuckistan'. That coupled with South Park's depiction of Canadians, nailed us perfectly.
As for the Missouri ruling, better hope it doesn't come down to Wishy-Washy Roberts. What Jackson said epitomizes how seriously under threat the 1A is in the U.S. Let us hope and pray they prevail in protecting the most sacrosanct of all the amendments. An amendment that is a basic universal principle shared by all humans. The sad part is these days the average Canadian probably thinks Jackson's comments are normal and acceptable. Think of dullard who says, 'Freedumber'.
Moving on. This is the era of the Rule of Man and not Rule of Law. The sheer lawless mayhem in NY against Trump is a perfect example of this. Lawfare unhinged and it's happening here too. Just SNC and the EA alone compromised the rule of law here. Problem with that is you can't just put that sucker in the bottle. It's a CONCEPT that should never be violated. We did.
“The more corrupt the state, the more numerous the laws.” Tacitus, The Annals of Imperial Rome.
Our laws are only as strong as the will of the people willing to protect and enforce it. COVID showed there's no impetus to do so. The courts are mirroring the weak fortitude of the Canadian people. They accepted the 'official narrative' and deluded themselves with the belief 'it was done with good intentions despite mistakes were made'. Or worse, actually thinking this was science and not scientism. The justice system isn't even allowing for evidence to be heard. I thought the bedrock principle of Western law is the right to be heard - which includes the right to present evidence. Here? Denied and moot.
It should surprise, like, no one. Trudeau publicly stated he only accepts protests that he agrees with. That alone should have led to his fall, but that's me. Well, actually SNC and EA should have. Says a lot about us as a people to tolerate such imbecilic arrogance towards basic principles of freedom of speech and assembly, no?
Chrystia Freeland for her part is a big fan of the concept of the 'state of exception'. She made her authoritarian impulses crystal clear during POEC and that speech she gave to graduates in Massachusetts (Northeastern was it?). The essential nugget of her 'intellectual' position? That the law is to cumbersome in times of emergency and that it must be circumnavigated (in good faith of course) when national security is threatened.
Welcome to the nightmare.
We need some more laws to protect against all this government overreach! (Sarc)