One of the plaintiffs in the landmark censorship case offers thoughts on last week’s ruling, plus a general warning

Soon to become one of the original plaintiffs in the landmark Missouri v. Biden First Amendment case, Dr. Aaron Kheriaty at the outset of the pandemic began seeing patients come to his clinical practice speaking in ways he hadn’t encountered before, expressing a “weird apocalyptic anxiety” that combined depressive reactions to isolation with paralyzing fixations on social media, commercial news, and various disastrous scientific scenarios.

Acutely aware of real dangers of Covid-19 — as ethics consultant at the University of California-Irvine hospital he’d sat through “more conversations than I can count” informing families loved ones were dying of the new disease — Kheriaty nonetheless began to tally its psychiatric consequences as well. In late 2020 he wrote The Other Pandemic: The Lockdown Mental Health Crisis, addressing statistics matching his clinical experience. Anxiety disorders had tripled, depressive disorders quadrupled, and 11% of respondents contemplated suicide within 30 days. When it became consensus that questioning lockdowns was equivalent to murder — The Atlantic even ran a headline, “Georgia’s Experiment in Human Sacrifice” when Governor Brian Kemp allowed “gyms, churches, hair and nail salons, and tattoo parlors” to reopen — bringing up such issues guaranteed backlash, as he was to find out.

Between the Other Pandemic article and the signing of the Great Barrington Declaration opposing lockdowns with future co-plaintiffs Dr. Jay Bhattacharya of Stanford and Dr. Martin Kulldorff of Harvard, Kheriaty found himself subject to increasingly absurd pressures. In September 2021, for instance, Kheriaty gave an interview to podcaster Alison Morrow that was not only removed by YouTube, and caused Morrow’s account to be frozen, but eventually got Morrow fired from a day job she held with the state of Washington, as bosses demanded she stop all interviews with anyone who “undermined” vaccine mandates. YouTube framed the interview as “misinformation” because it was seen to “contradict expert consensus from local health authorities or the World Health Organization.”

In this sense, Kheriaty’s story is crucial to hear especially for naysayers and mainstream news consumers, who’ve been led to believe digital censorship is always on some level about “fake news.” His case, like that of co-plaintiffs Bhattacharya and Kulldorff, was instead about suppression of exactly the expert, credentialed opinion anti-disinformation bodies often claim is sacrosanct. “It was narrative control,” Kheriaty recalls now.

Covid led Kheriaty down the path of becoming the most ambitious theorist of the censorship-industrial age, pondering the pandemic’s mysteries. Why were things academics once would have discussed, like pandemic policy, presented as diktats beyond the scope of debate? Why was the general population so accepting of such non-negotiable decrees? Why did the medical community shrug as concepts like informed consent — so central to modern medical ethics that it’s the first entry in the 1947 Nuremberg Code — were replaced overnight with new doctrines de-emphasizing individual care and stressing collective “safety” issues? Why was language infected with odd catastrophizing tendencies (e.g. from bending to flattening to “smashing the curve”), and why were issues once thought of as social matters best resolved through discussion and democratic reform, like racism, suddenly being re-framed as public health or national security matters?

Kheriaty’s search for answers not only led to vivid description of a new “biomedical security state” in his book The New Abnormal, but helped bring about the Missouri v. Biden litigation, which came about in significant part because he, Bhattacharya, and Kulldorf decided to fight back. Kheriaty has spoken in the past about being proud to represent not just himself in the case, but everyone who’s been censored (or denied the equally important American right to hear) by a metastasizing censorship industry that was “far more wide-ranging than previously known.” You can read some of his thoughts about this and other issues at his excellent Substack site, Human Flourishing.

As noted over the weekend, the 5th Circuit Court handed down an important ruling in Missouri v. Biden last week, verifying that the White House and the FBI likely engaged in coercion of social media platforms “in violation of the First Amendment,” but excusing other state defendants and their partners from an earlier injunction to stop flagging content. A quick poll of people close to the case suggests uncertainty over what the ruling means, as its ambiguity may tempt the Biden administration to accept a loss, or wait until the related O’Handley v. Weber and Twitter case that’s already before the Supreme Court is resolved. Others however seem confident the ruling will be appealed to the upper court by the administration, which won’t want such a stern rebuke of the White House left unchallenged (“I’m sure they’re thinking, ‘This aggression will not stand, man,’” joked one lawyer).

Wednesday, I asked Kheriaty his thoughts:

MT: Doctor, as a plaintiff, what was your reaction to last week’s appellate court ruling?

Dr. Kheriaty: Overall, this is good news. We clearly didn’t get everything we wanted, and I don’t think any single lawsuit is going to entirely dismantle the censorship Leviathan, but this was a very good first step. We landed on Normandy Beach, not necessarily with all the soldiers that we wanted, but we have a foothold now to begin kind of pushing back against this thing. And this is a unanimous decision by a three-judge panel confirming that even at this early stage, before the case goes to trial, we’ve submitted sufficient evidence to establish that the FBI, the CDC, the White House and the Surgeon General are in fact unconstitutionally coercing social media companies to censor ordinary Americans. That essentially confirms the core finding of the injunction at the district court level. It’s important to understand it’s very hard to get a preliminary injunction. The legal threshold is quite high. There’s a multi-pronged legal test in order to get an injunction.

That’s important context because you can prevail in a case without necessarily obtaining a preliminary injunction, because a preliminary injunction basically says even before the fact-finding process of an adversarial process of the trial — even with just the limited discovery that’s been allowed so far, and the initial arguments submitted — that the plaintiffs were likely to prevail on the merits of the arguments. We’ve already shown that there’s likely to be irreparable harm to plaintiffs or other people who are similarly situated. It means that if the government doesn’t intervene right away, we can’t wait for a final ruling because irreparable harm may be done in the interim.

So, the fact that the circuit court ruling didn’t include all the entities that the district court injunction included, doesn’t mean those other agencies can go ahead and engage in unconstitutional censorship. It just means at this stage, we haven’t yet submitted sufficient evidence to cross that high legal bar for an injunction against all of those agencies. But certainly, those agencies, even the ones that weren’t specifically named in the injunction, are on notice. They realize that while this case is being tried, any ongoing communication with social media can be subject to subpoena.

I was disappointed that the court didn’t recognize, especially when it came to the Cybersecurity and Infrastructure Security Agency (CISA), that their flagging activities are highly problematic, and I think constitute a form of significant encouragement. I think you understand this well — the people that have really dug into the anatomy of the Censorship-Industrial Complex understand the way in which these things are intertwined with the people doing the flagging — and CISA’s work as a switchboard and a sort of clearing house for other government requests and their work with quasi-private entities like the Stanford Internet Observatory and the University of Washington. I mean, they’re government-funded, and they’re staffed by people who formerly worked at these government agencies.

MT: “Not exactly non-governmental non-governmental organizations.”

Dr. Kheriaty: Exactly. I think this tightly interlocked machinery implicates all of them including (and maybe even especially) CISA as a state actor when it comes to the overall censorship work and the overall power dynamics of work. So, I think that the judges may be operating to some degree with an anachronistic understanding of publishing and perhaps an inadequate understanding of the dynamics of how this actually works when it comes to social media, such that it’s only the guy yelling on the phone who’s violating the Constitution. It’s not all the other people involved in the very same activities.

I don’t how you establish that legally. I’m not a lawyer, I just sort of play one on TV, and I’m not sure how you educate the American people in the judiciary to understand what’s grown up since 2017 with this censorship leviathan. It’s really complicated, and takes a while to wrap your head around. I think that’s one of the challenges in our case. I think Judge Doughty understood this at the district court level, but maybe one of the reasons the appellate court narrowed the injunction was maybe an inadequate appreciation for how this machinery operates as a whole.

MT: What would you hope for as a best-case scenario? Do you want Missouri v. Biden to go ahead to the Supreme Court?

Dr. Kheriaty: I think a best-case scenario is that the current appellate court injunction stays in place while the case being tried is either upheld by the Supreme Court because they “deny cert” — meaning, if the government appeals, basically they deny to hear the appeal and therefore they leave the ruling in place — or they hear the appeal and uphold the ruling in a judgment. And then we get a final ruling in the Supreme Court that is as strong and hopefully a bit stronger than the current injunction.

That would also apply to some of the other key actors in the Censorship-Industrial Complex, specifically named as people that need to cease and desist. I think that would put a dent in this. The other important thing about this case is not just trying to get a judicial victory, but forcing media attention onto this issue… This was front page news above the fold in Saturday’s New York Times and Washington Post and Wall Street Journal. I can critique their reporting, although it’s gotten better as the case has proceeded, but it’s there and impossible to ignore now.