Jenin Younes on Her Discovery of Biden WH Coercion of Big Tech

BUCK: We talked to you yesterday about what came out in the lawsuit with regard to the Biden administration, telling Facebook, “Censor some people!” We had Tomi Lahren on. She was one of the censored. That op-ed, which was so widely shared and read, was co-written by Jenin Younes, who is a litigation counsel at the New Civil Liberties Alliance, and Jenin is with us now. Good to have you on.

YOUNES: Thanks for having me.

BUCK: So, you know, we’ve been saying for a while that two things are going to come to light from this one — meaning on this show, Jenin — that there will be more evidence of social media platforms engaging in partisan censorship in a blatant and obvious and politicized way. And two, that it will be clear the Biden administration was all over this. Give us your sense of this. I mean, you’re on the frontlines legally of trying to deal with some of the Biden administration overreach on this issue. What did you think when you saw some of the revelations in this lawsuit brought by the attorneys general of Missouri and Louisiana, I believe?

YOUNES: Yeah. So actually, I’m one of the attorneys on the lawsuit. I’m representing private plaintiffs. So that’s how I had access to that discovery very early. So, actually I was so shocked by it (laughing) I spent the weekend writing the op-ed because I thought the public really needed to know about it. I mean, our interest in it, we focus on suing the government; so, we’re not so concerned with what tech companies are doing of their own volition. But our focus is whether the government is driving social media censorship or telling the companies what or whom to censor, which we knew that they were, because, you know, the government — various members of the administration — had made statements saying that.

And in earlier phases of discovery, we got a lot of documents showing, you know, they were saying, “Censor this kind of thing,” especially about covid, you know, people who question whether masks and vaccines work. What the government has been saying is, “Oh, the companies want to do this, okay? They want to stop covid misinformation. And we’re just helping them. We’re telling them what kind of misinformation to stop.” Now, I think that’s problematic from a First Amendment standpoint anyway, because the government shouldn’t be able to work with private industry to accomplish, you know, censorship aims. But when the government is coercing the companies, that’s totally different. And I think the emails that came out on Friday sort of unequivocally established that that’s what was going on, that this was coercion.

CLAY: So, thanks for coming on the show. Your Wall Street Journal editorial was absolutely phenomenal, and it’s up at Clay and Buck, and both Buck and I have shared it for people who want to read it. When you see all of this revelation, one of the questions Buck and I have had is: What does this accomplish? Obviously, putting it out there in public, the smoking-gun evidence of clear intent to censor political rivals, not only for the factual information they were sharing, but oftentimes, too, just for opinions. What is the goal going forward? What should happen to keep this from continuing to happen, to keep it from happening in years ahead, in your mind?

YOUNES: So, the goal is basically to get a court to recognize that the government can’t work with private companies or coerce them or pressure them in order to censor people based on viewpoint. So, the law is clear that the government cannot censor people for expressing certain views. That’s basically what the First Amendment says. And the government also can’t use private companies to accomplish what it can’t do directly because otherwise there would be no point in the Constitution. The government could just circumvent all of it by hiring — you know, outsourcing to — private companies. So what we’re arguing here is that’s effectively what’s going on. And the —

CLAY: Case, I guess… I’m sorry to cut you off. What’s the redress here? Like, what is the…?

YOUNES: Yeah, yeah.

CLAY: Yeah, yeah, exactly.

YOUNES: So, yeah, what we want is a court to recognize that this is a First Amendment problem. We’re not asking for money, but that it’s a First Amendment violation so that going forward, the government can’t do this going forward. So, it’s hard to hold government officials personally accountable in lawsuits. They have what’s called qualified immunity. But if there’s clear law saying that violated the law, then they can’t get qualified immunity anymore. So that creates more incentives for them not to do it because they can be held personally responsible. So they can get fired. They can even, you know, owe money and stuff like that.

BUCK: Right, Jenin, so just to establish —

YOUNES: Yeah, go ahead. Sorry.

BUCK: No, it’s okay. I just wanted to just for purposes of clarity, so if you get the court to rule that what was done here was a first rate violation, that is a necessary step, then it seems, in creating the grounds for, you said people — yeah, people could be terminated by the government. But I think the thing that would be even more of a concern for them would be if they could be sued in their individual capacity for violating the rights of individuals as a government employee. So is that possible?

YOUNES: Yes.

BUCK: Could that be possible?

YOUNES: Yes, that is possible, and so, yeah. So it’s so the goal is sort of twofold to create good precedent going forward and also to, you know, make it so that these people can be held personally accountable, which will incentivize them not to, you know, just do it behind closed doors. And there’s even some — there are a couple of law professors who came up with a theory about criminal charges for violations of First Amendment rights when it’s very clear. So that could be a possibility, too.

BUCK: And I’m just wondering, what is the…? You know, you’re in this lawsuit, you’re one of the lawyers on it. What is the other side saying? Like, “Yeah, you know, First Amendment, who needs it?” Like, what is the counterargument that they’re making?

YOUNES: Their argument is that the companies want to do this. So, the companies want to censor misinformation. They did that before the Biden administration came into office, and that they can, they’re allowed to work together to accomplish mutual aims of stopping the spread of covid misinformation.

BUCK: Wow. So basically, this really comes down to whether the government… I mean, so they’re going to claim that the government can even say, “Hey, have you guys looked at this? You need to shut this person down!” And if Facebook is like, “Yeah, we totally want to shut that person down, then that’s okay.”

YOUNES: It’s not. But as I said, the case law is a little bit hazier, I think, because there’s not a lot of this in the First Amendment context. I could go on forever and bore everybody, but sort of put distinctly before social media, there just wasn’t a way that private companies and the government could work together to sort of silence Americans en masse. So I think it’s created a new terrain, and so there’s just not a lot of directly on-point case law. But what I’ve been sort of analogizing to is the Fourth Amendment. The government clearly cannot hire private companies to go break into your home, for instance, because they don’t have a warrant. And so likewise, they shouldn’t be able to outsource their censorship activities to private companies.

CLAY: Yeah, Jenin, the argument I’ve been making for years now is most people out there would acknowledge what China does is wrong, right, that you shouldn’t be able to restrict in general, like they do in China. For instance, you can’t look up Tiananmen Square. You can’t go on the Weibo app, which is basically China’s equivalent of Twitter, my understanding is, and say anything the Chinese government doesn’t like. They will directly censor you. What effectively is happening right now with the Biden administration is they’re getting to the same result as the authoritarian regime in China.

But they’re using the tech companies to do what they would not be able to do under our own Constitution, right? I think most people kind of understand that. Now when you look and see all of the things that are being put in writing — I read your editorial and I’ve read some of the documents that you’ve uncovered — what these Biden administration officials are willing to say in an email and what… This, I thought, was extraordinary; I’m sure you did, too. When you would look at what, for instance, Jen Psaki would say, she admitted that they were doing this. But then the emails out there — for both Facebook, YouTube, for all these — even yourself had to be sometimes staggered, I think, at the direct, blatant nature of this censorship.

YOUNES: Oh, absolutely. That’s why I wrote the op-ed. I was so shocked. I mean, this is really people on a power trip, I think, who think that they can do anything. This guy, Rob Flaherty in particular, is really shameless in the way that he’s, you know, berating and very aggressive with these tech companies and saying basically, “You’re not doing… You know, you’re not doing what I want, do what I want or else.” And, you know, this is as you identified, this is how authoritarian regimes work, not free democracies. And I think one thing… One reason I think this case is so important is it sort of shows why we have a First Amendment.

Lots of people instinctually think, “Oh, well, we should be censoring this information. You know, if people say the vaccine has a microchip or whatever.” But the problem is that, you know, someone has to make those decisions. And where do you start drawing the line? And we… You know, our clients are top scientists. Jay Bhattacharya and Martin Gould, our top epidemiologists, some of the most cited experts in the world who are being censored on the topic of their expertise at the behest of the government. And that’s not what should be happening in a free society.

BUCK: Great work you’re doing. Really appreciate you joining us. Jenin Younes. She had that op-ed at the Wall Street Journal, which we have up at ClayAndBuck.com, and she’s litigation counsel at the New Civil Liberties Alliance. Jenin, come back and tell us how it goes.

YOUNES: I sure will. Thank you so much for having me.