Jen Easterly , CISA Dir

beware bs

The Brilliant Legal Mind of John Sauer - Ethics & Public Policy Center

The Brilliant Legal Mind of John Sauer NO APPARENT IRONY

Published August 24, 2023

The Epoch Times

By Aaron Kheriaty

*Commentary

On July 20, our attorney John Sauer—a brilliant legal mind and a force of nature in the courtroom—testified before a Congressional hearing of the House Select Subcommittee on the Weaponization of Government. Robert F. Kennedy, Jr. and Emma-Jo Morris, the journalist who originally broke the Hunter Biden laptop story, which was subsequently censored under pressure from the FBI, also testified. In a “you can’t make this stuff up moment,” one committee member began this hearing—a hearing on the topic of government censorship—by calling for a vote to censor the hearing itself, shielding it from public view and removing it from the public record.

You can watch the entire hearing here (Sauer’s testimony begins at minute 48). For those who prefer to read, I’ve included below the text of John Sauer’s five-minute oral testimony. For those who want a deeper dive, scroll down to his more detailed written testimony, which summarizes our case’s findings related to unconstitutional government censorship

Oral Testimony of D. John Sauer

Mr. Chairman, Members of the Subcommittee:

On July 4, 2023—Independence Day—Judge Terry A. Doughty of the U.S. District Court of the Western District of Louisiana entered an historic injunction against White House and other federal officials to prevent them from “urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.” Ex. 2, at 4.

Judge Doughty’s opinion contains 82 pages of detailed factual findings, supported by 577 citations of the record evidence, drawn from roughly 20,000 pages of the federal Government’s own emails and communications with social-media platforms, and the sworn testimony of senior federal officials in six full-length depositions. Ex. 1, at 4–86.

The Department of Justice filed an “emergency” stay motion in the U.S. Court of Appeals to block this injunction. Notably, in its stay motion, the Government hardly disputed a single factual findingfrom Judge Doughty’s opinion. These facts—supported by overwhelming evidence drawn from federal officials’ own mouths—are irrefutable.

The Court of Appeals has not granted this stay motion, but it has entered a “temporary administrative stay” and granted expedited briefing and oral argument on August 10. Contrary to some recent suggestions, a temporary administrative stay in such cases is “routine practice” in the Fifth Circuit and does not reflect a prejudgment of the merits. In re Abbott, 800 F. App’x 296, 298 (5th Cir. 2020).

The Louisianaopinion demonstrates that federal officials have covertly injected themselves into the content-moderation decisions of major social-media platforms, through a years-long campaign of threats, “unrelenting pressure,” collusion, and deceit. This campaign targets specific speakers and viewpoints, and it also affects platforms’ content-moderation policies.

Today, I offer seven observations drawn from the Louisianaopinion:

First,the Louisianacourt found, based on overwhelming evidence, that federal officials causethe censorship of disfavored viewpoints. The Government frequently claims that social-media platforms, acting on their own, would censor all the targeted speech anyway. This is demonstrably false. Again and again, the Louisianacourt found the platforms would not suppressthe speech that federal officials target absent their intervention; federal officials causethe additional censorship. The deplatforming of Alex Berenson, the throttling of Tucker Carlson’s content, the silencing of the so-called “Disinformation Dozen,” the de-boosting of so-called “borderline” content on Facebook, the censorship of the Hunter Biden laptop story, and much more—all were suppressed because offederal officials’ efforts.

Second,the scope and reach of federal censorship is staggering. As Louisianafound, it affects “millions” of social-media speakers and posts across America. It affects virtually any American who reads, listens, engages, or posts on social media about hotly disputed social and political questions.

Third,federal censorship is ongoing and shows no signs of stopping. The Louisianaopinion cites undisputed evidence demonstrating that federal officials’ censorship efforts are in full swing, and they are expanding to new frontiers. Left unchecked, federal censorship will reach virtually any disputed social and political question over which federal officials want to impose their power.

Fourth,the Louisianaopinion shows that federal officials are most eager to silence truthfulspeech, and to muzzle the most influential critics of the Administration and its policies. Tucker Carlson, Alex Berenson, and others were censored because they were the most effective speakers opposed to the Administration and its policies. Federal officials try to justify censorship as protecting innocent Americans from supposed “misinformation” and “disinformation.” This defense is false. Censorship is not about truth. It is about power—preserving and expanding the power of the censors and the political narratives they favor.

Fifth,federal officials are deeply intertwined with the “Censorship-Industrial Complex.” The Louisianacourt made detailed findings about the close connections and cooperation between federal national-security officials and the mass-surveillance and mass-censorship enterprise calling itself the “Election Integrity Partnership” and the “Virality Project.” Not just CISA officials, but also White House, State Department, and Surgeon General officials have deep ties to this enterprise. As Louisianafound, “CISA and the EIP were completely intertwined.”

Sixth,federal officials not only dictate the outcomes of specific content-moderation decisions. They also directly induce changes to content-moderation policiesat major social-media platforms to ban disfavored viewpoints in advance. As the Louisianacourt held, federal officials used “the power of the government to pressure social-media platforms to change their policiesand to suppress free speech.”

Seventh,the federal Censorship Enterprise has succeeded in transforming online discourse throughout America by rendering entire viewpoints virtually unspeakable on social media—the “modern public square.” It also directly interferes with another cherished First Amendment freedom—the right of citizens to organize to petition the government for redress of grievances. This ongoing distortion of the most fundamental American freedom, the right to free speech, is intolerable under the First Amendment.

Written Testimony of D. John Sauer

My name is D. John Sauer. I serve as a Special Assistant Attorney General for the State of Louisiana, and I serve as litigation counsel in the case Louisiana, et al. v. Biden, et al., No. 3:22- cv-01213-TAD (W.D. La.) (“Louisiana”). I testified before this panel on March 30, 2023, regarding the status of discovery in that case. My previous testimony is attached as Exhibit 3. I speak here today in my individual capacity, and not on behalf of any of my clients.

On July 4, 2023—Independence Day—Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana entered a historic injunction in Louisiana v. Biden. See LouisianaDocs. 293, 294 (attached as Exhibits 1 and 2). The injunction prevents federal officials from the White House and several federal agencies from “urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.” Ex. 2, at 4.

The injunction is based on 82 pages of detailed factual findings supported by 577 citations of evidence in the record, which includes over 18,000 pages of federal officials’ own documents and communications with social-media platforms, and six full-length depositions of senior federal officials with firsthand knowledge of federal censorship practices. In short, the judgment is based on overwhelming evidence drawn from federal officials’ own mouths.

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Conclusion: Two Visions of Freedom

This struggle over federal censorship reflects two competing visions of freedom in America. First, as the Louisianacourt emphasizes, CISA Director Jen Easterly aptly summarizes the federal officials’ view: “She … stated, ‘We live in a world where people talk about alternative facts, post-truth, which I think is really, really dangerous if people get to pick their own facts.’” Ex. 1, at 77. She also stated, “[W]e’re in the business of protecting critical infrastructure, and the most critical is our ‘cognitive infrastructure.’” Id.

Thus, Easterly’s view—reflected in federal censorship activity—is that the American “people” cannot be trusted “to pick their own facts,” and that the governmentshould pick our facts for us. Id.She believes that the federal government—armed with the weapons, authority, and the domestic surveillance capacity of the national-security state—should police our “cognitive infrastructure.” Id.As the Louisianacourt found, “cognitive infrastructure” means that “the CISA Defendants believe they had a mandate to control the process of acquiring knowledge.” Id.at 110.

The U.S. Supreme Court’s watershed First Amendment opinions express a radically different view of freedom. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.” United States v. Alvarez, 567 U.S. 709, 723 (2012) (plurality op.).

The Louisianacase is one part of a titanic struggle between these two visions of freedom. The former view—the view reflected in the actions of federal censorship agents like Jennifer Psaki, Rob Flaherty, Andy Slavitt, Dr. Vivek Murthy, Carol Crawford, Dr. Anthony Fauci, Jen Easterly, Matthew Masterson, Brian Scully, Alex Stamos, Rene DiResta, Kate Starbird, Elvis Chan, Laura Dehmlow, and a host of other federal censors—is terrifying and tyrannical, and its power is expanding rapidly. But the latter view is the vision enshrined in the plain text of our Constitution and deeply engrained in our traditions of liberty. I am profoundly hopeful that this latter vision of freedom will prevail.

Aaron Kheriaty, MD, is a Fellow & Director of the Bioethics, Technology and Human Flourishing Program at the Ethics and Public Policy Center. He is a physician specializing in psychiatry and author of three books, including most recently, The New Abnormal: The Rise of the Biomedical Security State (2022).*}:

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