DON'T COUNT ON COURTS TO PROTECT YOUR RIGHTS

As I did litigation for three decades, including Constitutional cases, some readers suggested that I comment on the Supreme Court’s Murthy v. Missouri (f/k/a Missouri v. Biden) decision to dismiss a Covid censorship complaint because, the Court majority ruled, the plaintiffs lacked standing.

I could approach this task as does a legal scholar, closely reading case law regarding standing, especially pertaining to First Amendment situations, examining the Murthy record and deciding whether the Court’s majority was right. But that would take many hours, pages and footnotes and most readers would appropriately lose interest. Besides, capable attorneys on both sides extensively briefed the standing issue; their briefs are available online if you want to weigh each side’s analysis.

And the Court has made up its mind. They’re not going to change their decision.

So instead, I’ll take a macro view of Murthy because I think the Court’s decision is based more on emotion than on reason; that’s how judges often function. I’ll also discuss how Murthy, censorship and jurisprudence generally, fit within the broader governmental and societal context.

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As I often do, I’ll start with a true story. As usual, though my opening story’s setting seems unrelated to the Covid overreaction, the two situations resemble each other. The story also explains why I left legal practice to grow food and flowers, so when we speak on the phone or meet, I won’t have to explain why I changed careers.

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My town’s, Highland Park, New Jersey’s, residential streets have sidewalks in front of houses. As in many such municipalities, town governments planted shade trees between the sidewalks and the streets. Unsurprisingly, over time, these trees grew tall and wide. The trees’ roots cracked some of the sidewalk sections and lifted others. It happens everywhere. Nature is implacable.

Most towns react to such damage by patching sidewalk cracks or grinding the lifted sidewalk edges until they’re level. Or they sensibly let some imperfection be and— though this may, to some, seem reckless—trust humans to exercise basic judgment as they put one foot in front of the other.

Instead, in 2014, my Democrat-controlled town government decided to fine over 1,000 of the town’s 3,000 households whose sidewalks had been ever-so-slightly lifted or cracked by tree roots and required homeowners to replace any mildly flawed sidewalk sections. The OCD sidewalk crusade resembled 40 cycle PCR Covid tests for asymptomatic people: in both instances, governments looked for nonexistent problems and overzealously intervened when they found them.

The threat to human health was greatly overstated in both settings. And just as the Covid response has caused vast, deep harm, tearing up old sidewalks and cutting down or severing the roots of—and thus, soon killing—many dozens of big, old, beautiful trees caused far more harm than the mildly imperfect sidewalks potentially presented.

My town disallowed homeowners to patch cracked or lifted sidewalks. This prohibition paralleled blocking early Covid treatment with nutritional supplements, ivermectin and HCQ. In both instances, sensible, effective, low-cost, DIY solutions were forbidden in order to force people to spend much bigger sums so that government-favored private entities could profit.

Moreover, sidewalk-adjacent homeowners didn’t plant the trees that damaged the sidewalks, the town did. Analogously, our federal government funded viral gain-of-function research and thus, helped to cause the problem to which it overreacted.

As with Covid, risks posed by sidewalk imperfections were clearly age-stratified; those most at risk in either context seldom leave the house or take walks.

And just as our local, state and federal governments had already wasted millions, billions and trillions of dollars, respectively, before the Scamdemic and couldn’t really afford to waste more on the Covid charade, my local government shouldn’t have wasted taxpayers’ money on sidewalk litigation, especially because they should have known they deserved to lose.

But we live in a Nanny State Era, in which officials aren’t, but should be, held personally responsible for pushing Quixotic agendas and browbeating decent people.

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Just as most people gullibly bought Coronamania or passively allowed government overreach, many town residents supported or meekly accepted the municipal sidewalk crackdown/shakedown.

Wealthier householders didn’t much mind spending $300-$3,000 to replace “defective” sidewalk sections. But many of my town’s residents inhabit modest houses. Spending such sums would have been a hardship for them.

Thus, some homeowners saw and refused to tolerate the town’s arrogance and its aggression toward its tax-paying residents and asked me to represent them. I knew that my municipal government was overreaching but that residents couldn’t afford to pay an attorney to defend their rights. So I took the case, for free, on behalf of 1,000+ homeowners.

I requested to meet with Mayor and Council to resolve this matter without litigation. But because I don’t belong to the right ethnic/religious/political tribe, town officials ignored my request. Thus, I filed a lawsuit challenging the sidewalk ordinance.

After working well over a hundred hours gathering evidence, researching, drafting the complaint and arguing in court, I convinced a State Superior Court Judge that the town had violated the federal Constitution. Thus, I won an injunction preventing enforcement of the municipal sidewalk maintenance law.

The case was covered on multiple TV stations and the front page of the statewide newspaper, the Star Ledger. I liked the world better when the muckraking media reported stories of government misconduct instead of facilitating government and Pharma-driven societal destruction by telling wildly exaggerated tales of doom.

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According to the federal statute 42 U.S.C. 1988, an attorney who wins a Constitutional case must be awarded his hourly work fees. This fee law is designed to discourage government entities from depriving unwealthy citizens of their Constitutional rights. Unless you can afford an attorney, your rights exist only on paper. Few attorneys can volunteer the hundreds or thousands of hours required to litigate cases.

Having won, I applied for fees. I wasn’t desperate for the money and would have given most of it away. My wife and I live simply and don’t seek to upscale. Mostly, I wanted to punish town officials for not only harassing residents but for refusing to meet with me, to try to settle this matter before I did all of the work—including some very late nights—on litigation.

Though the judge, a snarly, lazy individual named Travis Francis, had granted the injunction, he denied my fee application.

I appealed the fee denial and won. The Appellate Division sent the case back to Francis. Piqued by my uppity statements to him during a post-argument in-chambers conference, his resentment that the Appellate Division had reversed his fee denial and that I might actually get paid for doing work, Francis begrudgingly awarded me a plainly insufficient $10,568 fee.

Though I had, by then, including the appeal, worked over 200 hours on this case, he spuriously concluded that I had only worked 30 hours. By way of comparison, the firm I defeated billed over 300 hours was paid $80,000 to lose to me.

So I appealed again. In front of a courtroom full of attorneys waiting to argue their cases, I pointed out what was obvious: the trial judge had ignored the law and facts regarding fees. I concluded by telling the three-judge Appellate Division panel that if they upheld Francis’s plainly inadequate award, I wouldn’t represent low-income people again; thus, instead of cheating me, the court would be cheating the people that 42 U.S.C. 1988 was designed to protect. I told the court that I’d retire from legal practice and work at Home Depot, because at least there, I’d get paid what I deserved.

Though the Appellate Division panel sensed that the trial court judge had cheated me, two weeks later they mailed me a decision upholding the insufficient award.

I fulfilled my pledge to leave law and let my license lapse. It wasn’t a hard decision. At that time, 2017, I was working two other, non-legal jobs that I liked: one growing food and flowers and the other doing outdoor construction. I enjoy being outside and creating stuff. If you can afford to do work you like, you should do so. Life is short. Vital life is even shorter.

When Coronamania began, I wished I’d preserved my eligibility and fought the lockdowns and shot mandates. But who, other than the powers that orchestrated it, could have foreseen such a Scam?

I probably would’ve had a worse experience doing Coronamania litigation than I did in the sidewalk case. The lockdown stakes were higher. It would have deeply angered me to work hundreds of hours and have judges uphold the lockdowns and mask, test and vaxx mandates. I told the only attorney friend who shared my antipathy for the lockdowns that I’d ghostwrite anti-lockdown briefs for free. He told me these cases weren’t worth the effort; New Jersey judges had internalized the Covid panic.

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Many people naively think judges are fair and smart. But judge selection isn’t a meritocracy. In New Jersey and federal courts, judges are appointed based on party affiliation and inborn demographic characteristics, not because they’ve demonstrated excellence, integrity, impartiality and respectfulness.

Given all of the attorneys in the US, Presidents could have selected much better-informed people than many of those on the current US Supreme Court and Circuit and District Courts. For example, Princeton/Yale Law grad Sonia Sotomayor infamously said, during the vaxx mandate hearing, that “100,000 children were in serious condition” with Covid at that time. Other purportedly elite legal jurists have assumed that the “vaccines” stopped infection and spread. Neither of these two notions was anywhere near true.

Once selected, justices and judges can—and often do—ignore statutes, case law and facts and established legal principles if they see that reliance on these sources will prompt a result they don’t like in a matter before them. They rely on insignificant factual differences to “distinguish” cases and, thereby, offset and/or nullify precedents.

Thus, they can reach whatever conclusions they want to reach. Courts are accountable to no one for doing so. This is often true even at the trial court level, because appeals courts typically defer to trial courts.

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When, as in Murthy, government officials try to pressure internet platforms to remove content, the individuals who wished to share or receive this information would seem to have standing, i.e., a sufficiently specific stake in a matter, to litigate to protect their right to speak.

Nonetheless, the Supreme Court concluded the plaintiffs lacked standing. Though the majority opinion purportedly addresses the threshold issue of plaintiffs’ standing, it focuses on what the defendant platforms did and didn’t do. The opinion’s fundamental theme is that whatever internet content limitations the government defendants sought weren’t that bad. The Court speculated that the internet platforms would themselves have limited anti-lockdown and vaxx content, even if the government hadn’t requested them to.

By purportedly refusing to reach Murthy’s merits, and dismissing the case, the Supreme Court majority protected pro-Coronamania political operatives. Censorship is an ugly word. It connotes totalitarianism and evil empires. The majority didn’t want to acknowledge that US officials had an evil, totalitarian streak.

Moreover, calling out Covid censorship would have revealed the underlying, overall Scam. If government officials had nothing to hide, why have they suppressed dissent throughout?

Fundamentally, the opinion reflects the majority’s members’ underlying Covophobia. The majority’s members were unwilling to make the governmental sponsors of the Covid response—whom it sees as having done noble work—look bad. Implicitly, the Court’s majority tells government officials, “If we like your stated goals, we won’t stop you from censoring. And we liked the Covid mitigation and shots because we think these measures saved millions of lives.”

To the majority, well-intentioned governmental ends, i.e., “crushing the virus,” justified the means, discouraging free speech. They held this view even though they grossly over-feared a virus and had poor command of the facts regarding the lockdowns, school closures, masks, tests and shots’ advantages and disadvantages.

As Mark Twain pointed out, it’s easier to fool someone than it is to convince them they’ve been fooled. It turns out that some with the purportedly best legal—and medical and academic—minds in the United States are fools.

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Those who say they care about “threats to Democracy!” should hate Murthy. Democracy requires that people say and hear unpopular things. In Murthy, the Supreme Court allows the government to impair informational flow.

Federal, state or municipal governments can’t be allowed to decide what’s “misinformation” and what’s true and worthy of an audience. Governments often discern poorly. Much of what the government said over the past 53 months regarding Covid and the shots has been demonstrably false. Much of what we dissidents have said has been demonstrably true.

Many groupthinkers supported the Covophobic rights deprivations because the media’s sensationalistic coverage scared them and because that’s what the cool kids they knew and the media were saying. It’s unclear how much the media fearmongered voluntarily to build viewership/readership versus how much of its scare campaign was driven by government pressure to support the dominant narrative.

Nonetheless, government shouldn’t be telling media platforms which content these platforms should bury, especially because Coronamania dissidents turned out to be right far more often than were government officials.

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While, symbolically and viscerally, Murthy seems significant, this decision seems to have limited practical effect. Firstly, the decision doesn’t reach the merits and thus, doesn’t serve as substantive precedent regarding censorship.

Secondly, as the Murthy majority noted, even without government coercion or guidance, various internet platforms are ready, willing and able to censor anti-panic content.

Thirdly, anti-Coronamania internet content providers and viewers can, and did, shift to other platforms. Despite the censorship—known and unknown—that’s occurred, plenty of anti-lockdown/mask/test/vaxx information remains online; I’ve found it without trying very hard.

Fourthly, if the Court had, in Murthy, rebuked government officials for censorship, these officials could continue to sneakily block informational flow. Instead of sending emails to internet platform executives, they could make deniable phone calls or have personal meetings. Or content can simply be shadowbanned, i.e., moved far enough down search result lists that few or no people will find it.

Finally, even if the Murthy Court had reprimanded government censors, the censors wouldn’t have lost face. Few media outlets would have reported US government censorship. Even if the Court had upheld the injunction of censorship, Murthy would be like a small tree falling in the woods: few would have heard about it.

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Given the foregoing, how should one react to such governmental overreach as the Covid restrictions and mandates and censorship, which take too long and cost too much to challenge in court and which challenges, as in Murthy, courts can reject?

When injustice becomes law, resistance becomes duty. In the Covid context, unfearful people could have refused to stay home, wear masks, or take tests or shots. As noted above, content providers and consumers can shift to other platforms.

We can also communicate in direct, low-tech ways. Face to face, we can tell those we know that what’s being done, e.g., lockdowns, closures, masks, tests and shot mandates is destructive. Though people hesitate to do so because they don’t want to seen as radicals, they can make signs and put them on their houses or in their windows or yards or on their cars. They can even make and wear t-shirts. When I wear my anti-Coronamania shirt, people approach and thank me for making this public statement. Once they see that others agree with them, more people become willing to spend some of their popularity and make their own statements.

Though there was no internet during the Vietnam War, enough people directly expressed their opposition that public support for the war waned. Though, unlike during the Covid Scam, the Vietnam Era journalists did their job and asked obvious questions and noted some obvious trends and inconsistencies.

People needed--and need—to stop being obedient Boy and Girl Scouts. After the past 53 months, the myths of a benevolent government and an honest media should have collapsed. And governments aren’t just censoring the media and individuals, they’re surveilling phones and computers.

People need to express themselves, not wait for a court’s permission to do so. People need to resist and opt out when it’s warranted, especially when doing so won’t land them in jail. And even when it would. Because jails only have so many cells.

Some people will hate those who speak out. But the haters aren’t worth having as friends.

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While Murthy seems wrongly decided, its impact is infinitely lower than was the Covid response, generally. The lockdowns, closures, wasteful spending, masks, tests and shots dropped an atomic bomb on society and the economy. That damage will continue to manifest itself for decades.

The media and government were always stacked against those of us who saw the Scam and spoke and wrote against it. The challenge was, and will always be, to muster as much convincing opposition as we can with limited media access and dollars. One can hope that the past 53 months have opened many peoples’ eyes to governmental, media and “expert” malfeasance and dishonesty, such that more people will be open to counter-narratives and will trust their own eyes more than they did during Coronamania.

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By coincidence, I read this passage, Psalm 127, this week:

Unless the Lord builds the house,
    the builders labor in vain.
Unless the Lord watches over the city,
    the guards stand watch in vain.
 In vain you rise early
    and stay up late,
toiling for food to eat—
    for he grants sleep to those he loves.

 Children are a heritage from the Lord,
    offspring a reward from him.
 Like arrows in the hands of a warrior
    are children born in one’s youth.
 Blessed is the man
    whose quiver is full of them.
They will not be put to shame
    when they contend with their opponents in court.

I’m not sure how to interpret this. Does it mean that ultimately, God is in control? Or that there’s strength in numbers? Both can simultaneously be true.

Regardless, and despite Murthy, opponents of Coronamania and other government overreach can continue to resist and speak out. And every night, we can lay our bodies down and sleep peacefully, knowing that we did the best we could to stop the madness when most others said we were wrong, and evil.