Jane Tyska/Digital First Media/East Bay Times via Getty Images
Gavin Newsom gives himself a COVID-19 PCR test at the Native American Health Center in Oakland, California, on Dec. 22, 2021Jane Tyska/Digital First Media/East Bay Times via Getty Images
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Collapse of the COVID Truth Regime

California’s new misinformation law aims to silence dissenting medical opinions while allowing state-sponsored falsehoods to proliferate unchecked

Alex Gutentag
March 06, 2023
Jane Tyska/Digital First Media/East Bay Times via Getty Images
Gavin Newsom gives himself a COVID-19 PCR test at the Native American Health Center in Oakland, California, on Dec. 22, 2021Jane Tyska/Digital First Media/East Bay Times via Getty Images

In 1922, the American political commentator Walter Lippmann coined the term “manufacturing consent.” In Lippmann’s view, the best solutions to complex problems in a democracy could not be determined by the masses; rather, democracy should be managed by a “specialized class” and a “bureau of experts” that could best understand common interests and shape public opinion through the tools of propaganda. Edward Bernays, sometimes called “the father of public relations” expanded upon Lippmann’s thesis in his 1947 essay “The Engineering of Consent.” According to Bernays, the right to free speech and a free press is accompanied by a “right of persuasion,” which is facilitated by mass media.

“All these media provide open doors to the public mind,” Bernays wrote. “Any one of us through these media may influence the attitudes and actions of our fellow citizens.” For much of the 20th century, Lipmann’s specialized class could dominate media and communications in order to guide public opinion for commercial and political purposes. With the advent of social media, however, this dominance was upended and the “doors to the public mind” became more accessible to the average person.

On Twitter, Facebook, and YouTube, the conclusions and assumptions of experts could be challenged both by their credentialed rivals and by uncredentialed laypeople. The election of Donald Trump, a figure who was broadly despised by the specialized class and whose social media presence was critical to his campaign, indicated that the soft, noncoercive style of engineering consent had been outpaced by technology. In response, the FBI and State Department transitioned toward hard censorship, with full support of the legacy media, using Russiagate as a pretext to influence and infiltrate Facebook and Twitter, thus transforming these supposed “private companies” into arms of the state.

The initial justification for much of the COVID censorship that began in 2020 was that social media users could “cause harm” by discouraging others from taking proper precautions. Even though this censorship was a clear infringement on civil liberties, liberals readily accepted it because they had been primed through the false narrative that open expression on social media allowed Russian bots to rig the 2016 election. By this time, Democrats had also normalized the notion that free speech was intrinsically dangerous and that words literally cause violence.

While mainstream media outlets pushed a propagandistic narrative to build popular acceptance of radical and unprecedented measures, government agencies pressured social media companies like Twitter and Facebook to suppress analysis from skeptics. From the lab leak hypothesis, to natural immunity, to mask mandates, much of this analysis has turned out to be entirely legitimate. By skewing the scientific debate, social media “content moderators” allowed state-sponsored misinformation to proliferate unchecked. Three years later, the alarming trend of non-COVID excess mortality in Western countries is an indictment of the COVID response and the censorship that accompanied it. If the job of public health officials was to minimize harm, ongoing excess mortality after the peak of COVID is evidence of failure.

As this failure becomes undeniable, we are witnessing the collapse of much of the censorship campaign that helped shield authorities from criticism. Under Elon Musk, Twitter ended its COVID “misinformation” policy and reinstated many banned accounts. The “Twitter files” and the Missouri v. Biden lawsuit have revealed that the White House, the CDC, and even Pfizer were all involved in a coordinated, systematic silencing of dissent around COVID policies and vaccines.

Against this backdrop, one of the country’s most draconian censorship efforts is facing a major challenge. On Jan. 25, U.S. District Judge William Shubb granted a motion for a preliminary injunction in the Hoeg, et al. v. Newsom lawsuit, temporarily blocking California’s Assembly Bill 2098 (AB 2098). If AB 2098 is eventually implemented, the law will allow the California Medical Board to disbar doctors who disseminate COVID-related “misinformation” to patients. Judge Shubb called the state’s definition of misinformation (“false information that is contradicted by contemporary scientific consensus”) “nonsense” and ruled in favor of the injunction on the grounds that the vagueness of the law would violate doctors’ 14th Amendment right to due process.

The state has decided not to appeal Shubb’s decision, but the ultimate fate of the law is still in limbo, in part due to an ongoing separate lawsuit (McDonald v. Lawson). Nevertheless, the initial victory of the plaintiffs in Hoeg, et al. v. Newsom has highlighted the pernicious nature of speech restrictions and represents a major blow against the far-reaching censorship machine that shaped the COVID era.

“The corollary to the First Amendment right to speak is a First Amendment right to receive information,” Jenin Younes, an attorney from the New Civil Liberties Alliance who is representing the plaintiffs, said. The battle over AB 2098 illustrates why medical censorship was about much more than doctors’ and scientists’ speech rights—it was also about the public’s fundamental right to informed consent for lockdowns, masks, and vaccines. As the COVID censorship campaign is increasingly questioned, it becomes clear that suppressing scientific dialogue was not just a free speech issue, but was a catastrophic violation of bioethics that harmed, injured, and killed people.

Medical censorship was about much more than doctors’ and scientists’ speech rights—it was also about the public’s fundamental right to informed consent.

The doctors challenging AB 2098 in court are primarily concerned about how this law would impact patients. Doctors’ ability to speak frankly is essential to medical care and medical ethics. As doctors have an obligation to act as fiduciaries for their individual patients, a law forcing them to push a one-size-fits-all approach would undermine this obligation.

“When you are no longer telling the patient what you really think, you are no longer acting in the patient’s best interest,” Dr. Azadeh Khatibi, a plaintiff in Hoeg, et al. v. Newsom said. “So you are then, by definition, acting unethically.”

Dr. Aaron Kheriaty, another plaintiff and former director of medical ethics at the University of California, Irvine, echoed this sentiment. “Clinical care needs to be individualized to the particular needs of each specific patient,” he said. “AB 2098 is a law that says doctors’ primary duty is not to the sick patient in front of them, but to a social program that’s been basically determined by the California Department of Public Health.” This turns physicians into agents of a broad political agenda, but patients need to be able to trust that physicians are acting in their individual interests. “Without that, medicine collapses,” Kheriaty explained.

The law’s intent to use doctors for a larger social and political purpose is characteristic of the entire COVID censorship crusade, which often prevented scientists and medical professionals from engaging in open inquiry or offering the public a “second opinion” on COVID prevention and treatment. This did not just penalize those who were prevented from speaking; it caused a societywide inversion of medical ethics in which every member of the public was instrumentalized for a “greater good” that could not be questioned. This inversion—the idea that your health as an individual only matters in service of collective ends—is the logic behind eugenics, organ harvesting, and nonconsensual medical experiments.

The advocacy group that pushed for AB 2098, No License for Disinformation, was originally focused on California doctors’ social media posts (since this would not be legally defensible, the group shifted its focus to doctor-patient interactions). “I think this shows what the real intent of the bill was, which was to silence political opponents,” Younes said. This effort was often personal. Dr. Tracy Beth Hoeg, for instance, has received dozens of messages from one of the members of No License for Disinformation threatening that the law would be used to attack her license. Dr. Hoeg’s scientific work was crucial in reopening schools, unmasking children, and raising awareness about vaccine-associated myocarditis in young men.

“It’s the patients who pay the biggest price when their doctors can’t give them accurate information,” Hoeg said. The attempt to target her has been disconcerting. “The really sad part is that there are doctors from all over who read this. Most will stay quiet, even about issues they really care about, because they don’t want to risk losing their job or medical license,” she explained. “That’s also how it stifles the scientific debate.”

Former State Sen. Dr. Richard Pan, a co-sponsor of AB 2098 and author of California’s strictest pre-COVID vaccine laws, has called anti-vaccine protesters “domestic terrorists” and has made disparaging comments about doctors who disagree with his legislative efforts, calling them “Covid minimizers” and “unlicensed pundits” (as if one needs a license for punditry in this country). “This is supposed to be a law about the public’s best interest, and yet it’s a law about personalities,” Dr. Ram Duriseti, another plaintiff in the lawsuit, explained. “It’s a political law. It’s not a scientific or medical law.”

The law itself contains multiple debatable claims, including the assertion that “unvaccinated individuals are at a risk of dying from COVID-19 that is 11 times greater than those who are fully vaccinated.” As Hoeg pointed out on her substack, the estimate of an elevenfold higher risk is inaccurate: This number has changed over time and continues to change. More importantly, it is based on confounded data from the CDC, not randomized controlled trials. This demonstrates the problem that arises when a central authority is entrusted with determining and enforcing a singular scientific truth.

“It’s not a crisis of misinformation. It’s a crisis of institutional credibility,” Laura Powell, another attorney representing the plaintiffs, explained. Powell filed the original complaint and motion for the injunction. “The whole point is to scare doctors into keeping their mouths shut, and that will be achieved even if they never bring up any disciplinary action,” she said.

Over the past three years, COVID censorship has worked by making examples out of nonconformists and labeling them as heretics in order to discredit them. Censorship is not just about preventing access to certain perspectives, but about defining an in-group and warning observers that they might also be isolated and gagged if they stray too far from accepted narratives.

When these accepted narratives are actually false, reality is warped, and people are forced to participate in a bizarre and damaging theater in which they fight to defend ideas that are wrong. The alternative would mean risking association with those labeled as “covidiots,” “anti-maskers,” and “anti-vaxxers.” In response to policies that marked certain positions as off-limits, many people in medicine, science, law, academia, and journalism responded by self-censoring for fear of excommunication. AB 2098 seeks to make this chilling effect permanent. The preliminary injunction against it, however, suggests that we have entered a new phase in which the COVID truth regime may be finally losing much of its immense power.

The law’s intent to use doctors for a larger social and political purpose is characteristic of the entire COVID censorship crusade.

Central to COVID censorship was the notion that people simply cannot be trusted to evaluate evidence on their own and make health decisions for themselves. “Part of the censorship movement is so elitist,” Powell said. The assumption behind COVID “content moderation” was that a small cadre of anointed experts deserved disproportionate sway over public opinion because their views were objectively correct, but this has proven to be far from the case.

YouTube, for instance, suspended users for statements that disputed the efficacy of face masks; these statements have now been vindicated by a landmark Cochrane review of 78 randomized controlled trials, which found that masks made “little or no difference” in preventing the transmission of COVID-19. Resulting mandates negatively impacted deaf and hard-of-hearing people, affected the learning and development of young children, and impaired the social cognition of elderly dementia patients. Because they disallowed open public discussion of their favored policies, social media companies should be considered partially responsible for the collateral damage that ensued.

During school closures in 2020, for example, fatal teen drug overdoses doubled, the child homicide rated increased by 28%, confirmed evidence of child abuse rose by 30%, and there was a 31% increase in the number of child sexual images online. Clearly a critical assessment of the COVID restrictions placed on children was morally imperative, yet Twitter blacklisted a prominent advocate for school reopening, Stanford’s Dr. Jay Bhattacharya, as soon as he opened his account. As Dr. Bhattacharya recently argued in Tablet, this move and similar actions hampered the conversation around ongoing masking, testing, and quarantining protocols in schools, and these protocols continued in many states without evidence-based deliberation.

Social media companies often removed accurate estimates of COVID’s infection fatality rate (IFR) or labeled them as misleading because low figures might prompt users to reject the rationale behind social distancing, stay-home orders, and mandates. Would the public have consented to the prolonged mass quarantining of young people and children (as well as the massive upward wealth transfer, infringements on human rights, and social costs that accompanied it) if they had been exposed to correct data about the risk the virus posed?

At the behest of the Biden administration, censorship escalated dramatically in 2021. In an effort to boost vaccine uptake at all costs, Facebook told officials that it was censoring “often-true content” that did not contain misinformation but which might dissuade people from getting vaccinated. Many prohibited claims on social media pertaining to topics like natural immunity, breakthrough infections, and myocarditis proved to be true.

On Jan. 11, 2023, Dr. Anthony Fauci co-authored a paper in the journal Cell, arguing that viruses like SARS-CoV-2, which replicate in the respiratory mucosa, cannot be effectively controlled through vaccines that create systemic immunity, such as the current mRNA vaccines. Anyone making similar assertions on social media before 2023 may have been deplatformed, or their post might have been removed. Today it is worth asking how many people would have declined vaccines or boosters if this kind of commentary had been widely available.

One of the key problems with AB 2098, Hoeg explained, is that its vagueness “puts us all at risk of ‘misinformation’ not being defined using scientific data but by the beliefs of the dominant political party.” Throughout 2020, 2021, and 2022 “misinformation” and “settled science” were not determined through objective criteria—they were determined by the political preferences of those wielding power in state bureaucracies, tech companies, and mainstream media. In consequence, we are facing a snowballing economic crisis, children have been plunged into an academic and mental health catastrophe, and the country has seen non-COVID excess deaths of tens of thousands of people under 45. The bureau of experts has inflicted bottomless stress on the population as a whole and has shown a total disregard for basic civil rights and human dignity.

Free speech is rarely just about free speech for its own sake; it is about placing checks and balances on the ability of an authority to shape reality. “Nobody has a monopoly on the truth,” Younes explained. Ending the COVID truth regime is not only a matter of correcting the record on misguided policies. The underlying set of assumptions that led to mass censorship and rule-by-technocrat must be dismantled as well.

Alex Gutentag (@galexybrane) is a writer and Tablet columnist based in California.

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