The Judiciary, The Deep State, The Midterms

This will be a bit of a roundup post, because I have personal business to attend to. Come to think of it, this substack is personal business, too—but you get the drift.

Let’s start out at home in America. The obvious lead story is that DoJ, as expected, has appealed Judge Aileen Cannon’s appointment of a Special Master—Judge Raymond Dearie. CTH has good coverage of this story:

DOJ Files Appellate Court Motion for Partial Stay Against Judge Cannon Ruling, DOJ Does Not Want Classified Documents Reviewed

The issue of classification is, in a sense, a smokescreen, as we’ve pointed out in the past. CTH is absolutely correct that DoJ doesn’t want those classified documents to be reviewed—not even by a federal judge with a very high level security clearance. As noted previously, this is the Deep State setting itself up as the sole judge of what’s classified and what’s not—and asking the Judicial Branch to agree to butt out of such matters. In other words, the Judicial Branch is being asked to agree to the recognition of a de facto Fourth Branch. My contention is that matters won’t stop with documents bearing actual classification markings. If the Deep State wins on this, count on it, as night follows day the Deep State will assert—sooner rather than later—sole jurisdiction over any matter in which they claim a national security interest. Recall the FBI’s response to the revelation that they’ve been receiving private communication information of individuals using Facebook?

The FBI has provided companies with foreign threat indicators to help them protect their platforms and customers from abuse by foreign malign influence actors. U.S. companies have also referred information to the FBI with investigative value relating to foreign malign influence. (We Don't Need No Stinkin' Probable Cause!)

The Deep State will want to wall off all such activity—and especially “interagency” sharing, as referenced elsewhere in the FBI statement—from judicial oversight but also even from control by presidents whom the Deep State dislikes. The formal erection of a complete national security state—a formal recognition of what largely exists already—is what is at stake.

DoJ is shamelessly presenting to the 11th Circuit the same threadbare arguments that Judge Cannon swatted away, so we won’t bother reviewing those again. CTH hints at what seems to me to be the obvious course for the 11th circuit to take. What I would like to see is for the IIth Circuit to simply reject DoJ’s appeal as an impermissible interlocutory appeal—that is, one which DoJ is likely to lose and which causes no irreparable harm. Let the Special Master do his job. This is game time for the Judicial Branch. They may not be able to reform our politics on their own, but they can refuse to be a party to a Deep State coup.

Going hand in hand with this case is a decision at the Appellate level in Texas. I briefly referenced the case last night in a comment. The decision is being billed as a huge win for our First Amendment rights over against Big Tech censorship, and I’m a bit surprised not to see more comment on the case, despite its 113 page length. That estimate of the case’s importance is, IMO, a correct assessment, and the case will likely find its way to the SCOTUS—where there is reason to hope that it will receive favored treatment:

Brendan Carr @BrendanCarrFCC

NEW: Big court win in the effort to end Big Tech’s unchecked censorship. Fifth Circuit rejects a First Amendment challenge to the Texas social media law. “Today we reject the idea that corporations have a freewheeeling First Amendment right to censor what people say.” https://t.co/3ueNCuUkRr

Brendan Carr @BrendanCarrFCC

In 1996, the Supreme Court wrote that “ensuring public access to a multiplicity of information sources” is a “governmental purpose of the highest order” and, given the bottleneck control cable systems then held, required cable to carry speech they otherwise would have rejected. https://t.co/4zDEnPfMjk

Brendan Carr @BrendanCarrFCC

Judge Oldham draws on the longstanding distinction between entities, like the Big Tech companies here, that operate mainly as conduits for the speech of others and, on the other hand, a newspaper that primarily carries the newspaper's own speech. Big First Amendment difference.

Two points. First, I won’t pretend that this is an easy issue. The whole area of public interests versus private rights is definitely complicated. The Texas law took that into account, in a common sense sort of way, by restricting its reach. Here I quote Andrea Widburg, who provides both the factual basis for understanding that something had to give, that push had come to shove, as well as the reasonable restrictions Texas placed on its law:

Tech companies used to be free speech zones. However, once they inveigled just about everyone in America away from their usual means of communication and onto their platforms—that is, getting them away from the traditional public square in favor of their own squares—the companies began to clamp down on any speech with which they disagreed. Over the years, they’ve disagreed with (and censored) people supporting Trump, opposing the Russia hoax, challenging the COVID narrative (everything from masks to hydroxychloroquine to lockdowns), opposing the transgender fiction, and wanting to learn about Hunter Biden’s hard drive, to name just a few disfavored views.

…

As you’ve gathered, the censorship only flowed one way: Big tech silenced anything that challenged a Democrat narrative. We’ve since learned that this was not a coincidence. Aside from their own loathing of all things Republican, the tech companies took marching orders from the federal government, whether it was working with the White House directly (which allowed the White House to bypass the First Amendment), believing the FBI’s false claim that Hunter Biden’s hard drive was Russian information, or (possibly) spontaneously passing private messages to the FBI. Mark Zuckerberg also spent $400 million privately funding election officials, dangerously blurring the lines between ostensibly impartial government agencies and private monies, and has made clear that he intends to game future elections for Republicans.

Texas decided to challenge the way the tech tyrants used their supremacy over the public square to silence speech. The legislature enacted HB 20, a statute regulating social media platforms with more than 50 million monthly users (in other words, the bug guys, like Facebook, Twitter, and YouTube).

Now, mixed in with the issue about public v. private, Widburg raises the issue that is, in a sense, the real issue. As she says, Big Tech censorship is not a coincidental kinda thing. Scratch the surface of any instance of Big Tech issue oriented censorship—as opposed to threats and obscenities and suchlike incivility—and you will find federal government involvement. The federal government has been using Big Tech as a subterfuge for advancing its own suppression of the First Amendment rights of the citizenry, and they have been doing it with a very specific, partisan, agenda directing their efforts. This is a blatant violation of the general principle that the government cannot use private actors in this way to do things that it would be illegal or unconstitutional to do on its own. While Widburg doesn’t specifically enunciate that principle, trust me: That’s exactly what she’s getting at by raising the example of the White House “bypass[ing] the First Amendment” or Facebook “spontaneously passing private messages to the FBI.”

And that’s my second point. The reality is that this case is actually all about government censorship. To comply with the Texas law Big Tech companies will be required not only to suppress their own innate Wokist instincts; they will also be required to reject all hints or pressure or carrots from the federal government. Widburg’s list of examples in the first paragraph above makes that absolutely clear. The federal government was involved in every single one of those censorship campaigns. Please note the Deep State involvement in at least some—possibly more than just some—of those campaigns. This is where the Trump case and this censorship case dovetail with one another. These are two aspects of the would be National Security State’s goal to control all opinions, by suppressing Trump’s efforts to educate the public and by censoring viewpoint advocacy more generally.

I’ll wrap this up by quoting (via TGP) a thread on “submerged voters” by Robert Cahaly of the Trafalgar polling group. Please note in what Cahaly describes that the attempted suppression involves federal government involvement. If you think that the Facebook enabled harassment of law abiding but conservative Americans by the FBI is somehow coincidental to Dem strategy for the Midterms, I beg to differ:

In a Twitter thread, Cahaly said he expects Republican turnout to be higher than polls and models are showing:

In 2016 Trump supporters were called “Deplorables” and other unflattering names. This was a major contributor to the “shy Trump voter” phenomenon that “most” polling missed which resulted in a major loss in public confidence for polling flowing the election.

In 2020 people who supported Trump or espoused conservative values out of step with “Woke” culture found themselves being “canceled” or “doxed”. This led to “hidden voters” that “most” polling under counted, therefore Trump support in key battleground states exceeded expectations

Now that the Biden administration has essentially classified “MAGA Republicans” as a threat to democracy marshaling federal law enforcement to focus on them. This move has created a new type of voter that will be even harder to poll or even estimate.

I call this new group “submerged voters”. They aren’t putting stickers on their cars, signs in their yards, posting their opinions, or even answering polls. At this point I think it’s fair to say that Biden’s pursuit of and attacks on “MAGA Republicans” has created an army of voters who will be virtually impossible to poll (even for us) and more difficult still to estimate.

The 2022 Republican turnout will likely be higher than any of the polls or models are showing. All polls (including ours) will understate the impact of these “submerged voters”.

There’s still hope.