Jay Bhattacharya: The legal case against Anthony Fauci
Hello and welcome to UnHerd. I'm Freddie Sayers. Remember the Great Barrington Declaration? We certainly do, because we broke the story here at UnHerd when we interviewed the three main authors of it - professors Jay Bhattacharya, Sunetra Gupta of Oxford, and Martin Kulldorff of Harvard - on the very day that they signed it in Great Barrington, Massachusetts. It was somewhat of a watershed moment in the history of the pandemic, because suddenly three renowned global experts had come together to insist that there is another way to approach COVID than lockdowns and mandatory vaccinations. Well, now, some years later, a case is making its way through the courts in the United States that could have historic implications for science, for tech censorship, and for the principles of academic freedom. Two of the authors, Jay Bhattacharya and Martin Kulldorff, are claiming that social media unlawfully silenced them, and other matters on instructions, in collusion with the federal government. And in particular, one Anthony Fauci, who at the time was the chief medical adviser to the government. Well, one of these names, Professor Bhattacharya,
who is something of a friend of the show, is joining us today live from Stanford, alongside one of the lawyers involved, Jenin Younes from the New Civil Liberties Alliance. Welcome both. So Jay, can we start with you? Great to see you again, first of all. Give us a bit of an update here. What is the background for this legal case? What do you think happened to you and to other people during the pandemic that you think is worthy of actually bringing a case to the courts? Well, I think what happened, Freddie, is that there was a coordinated campaign, a propaganda campaign, that sought to silence critics of the government's censorship policies. And so there's a lot of evidence of this from my own personal interactions with social media. Particularly, they use social media to do this, both the social media and the press, to both discredit and censor people who disagreed with the lockdown policies. Just to give you some sense of what
happened after we wrote the Great Barrington Declaration, and this we know from Freedom of Information Act requests from the government: four days after we wrote that declaration, Freddie, after 10s of 1000s of scientists had signed on to it. As you call it, they called for a focus protection approach to protecting older people who are vulnerable, and lifting lockdowns. Four days after we wrote it, the head of the National Institute of Health, Francis Collins, wrote an email to Tony Fauci calling me, Sunetra Gupta Oxford and Martin Kulldorff of Harvard fringe epidemiologists. And in that email, he called for a devastating takedown of the premises of the Great Barrington Declaration. What happened next
was reporters started calling me, asking me why I was wanting to let the virus rip, make grandma die, that sort of thing when we called for focus protection. What also happened was that we started getting censored on social media. Google de-boosted our results, so there's a story, shortly after we did that, we wrote the Declaration, we put up a webpage and normally you type in 'Great Barrington Declaration' and there aren't any other ones. So you would expect it to be near the top, but they de-boosted the results in many, many countries.
Later, we made a Facebook page that they censored for a week with no explanation. The conversation around the Great Barrington Declaration was suppressed on social media to a large extent, to the extent that there's still many people who have not heard of it yet, Freddie, which is an astonishing thing given that it's essentially representative of the mainstream position from before the pandemic. And it had, as signatories, 10s of 1000s of scientists and epidemiologists, Nobel Prize winners: it should have sparked a very broad conversation. Instead, it was suppressed by the media, the authors were smeared and social media worked to suppress it.
And is your complaint primarily with the social media companies? I mean, you mentioned Facebook and others there, in which case it's another case of social media censorship, or is your complaint with the Federal Government? It's with the federal government. It's one thing, of course, for social media to decide to censor things, I suppose. I don't think they really should have that right but I guess that's a debatable thing. But the federal government of the United States does not have the right, as far as I'm concerned, to work together with private industry to suppress, to silence, to censor a viewpoint that they don't like. And what I've seen is both from FOIA emails, Freedom of Information Act emails from inside the government, that there was actually coordination between social media and the government to do this, where social media essentially acted like stooges of the government. They were, in
effect, responding to suggestions, orders from the federal government. They looked to the federal government for direction about what viewpoints to censor, even in some cases particular people to censor. So it's not simply a socially used site on its own that doesn't like the Great Barrington Declaration or whatnot. What it looks like to me is that the government told social media that these people are social outcasts, these people have low social credit scores, in effect, these people are saying dangerous things, and should not be permitted to be on your platforms, or at least not fairly represented on your platform. So there's some overlay of 'these people are dangerous people'.
So I guess what you've described is something we're pretty familiar with now. Even UnHerd has been the victim of some of these, what we would consider unreasonable acts of censorship. But what's new here is that there might be some legal recourse. Who do you sue? And what legal basis is there for that? So, Jenin Younes, give us a bit of the legal side of this: what is the basis of the legal case? Sure. So, the lawsuit is against the federal government, the Biden administration and various agencies, and we're alleging that the government coerced the social media companies, or coordinated with them into censoring people. The First
Amendment is pretty clear that the government can't censor people based on their viewpoints, because they have disfavoured views or they say things the government disagrees with. But the government also can't use private companies to accomplish what it can't do directly, and we're alleging that that's exactly what happened here. Now, it's also important to note that the government members of the Biden administration, Biden himself, his press secretary, Jennifer Psaki at the time, Surgeon General Vivek Murthy: they made public statements, on the record, multiple times over the course of a year or more, telling the tech companies they weren't doing enough, they had to censor more people when it came to Covid misinformation, and if they didn't do more, they'd be held accountable legally. So, a lot of the emails that we have make it look as though the tech companies want to coordinate with the government. They're like, We're so eager to work with you, but it's our contention that they have to be viewed against the backdrop of this coercive atmosphere, and that the federal government has the power to do these things. They have the power to make good on these
threats, and the companies have long feared legal consequences and regulation. So that's exactly what's going on here, and to the extent that even if the companies want to do it, that's also a First Amendment violation. Now, it's a little different, and there are people who would say, If private companies want to do what the government asks, they can do that and that's not First Amendment actionable. I would
argue that's not the case, and once private companies are doing the government's bidding and acting as arms of the government, they're essentially government actors, and they have to abide by constitutional strictures. So did you choose to go after the federal government instead of one or more of the social media companies because you thought you'd have more chance of success and that's a more convincing case? What was the strategy here? was one reason, but I also think it's a much harder theory. Now, there are a couple of cases dealing with lawsuits against the tech companies themselves, and they have not been successful on First Amendment claims. One, Alex Berenson's lawsuit, people may have heard of him, he has a lawsuit against Twitter. The judge ordered discovery and it showed that the government had coordinated with Twitter and basically demanded that Twitter remove him. His First Amendment claims were
dismissed, but his contractual claims were allowed to proceed. So he alleged that Twitter had breached its contract with him. I think that is a hard case for most people. It works for him because there's direct proof that Twitter breached its contract with him, and also because he had a huge account and he was making a profit off of it. Most people don't have that so they wouldn't be able to sue for money damages in the same way. There's already been some encouraging news, right? The court instead of throwing it out, which some people had feared, have allowed it as a legitimate legal case. Tell us
about that. Yeah, so the court has allowed discovery to proceed. We're at the preliminary injunction phase, so that's an emergency motion basically saying the court needs to do something fast because people are suffering irreparable harm, our plaintiffs are suffering irreparable harm. A deprivation of First Amendment rights is such a harm. It's very rare for judges to order
discovery at that phase, but the judge agreed that we were entitled to this information. So we got a lot of emails, mostly between the tech companies and the government, showing really high levels of coordination. Government officials are telling them, You should do this, you should remove this sort of content, in some cases even: you should remove these people. And
they're saying, Okay, we're doing that. And just to go back to Jay, if I could, one name that came up a lot during that discovery was that of Anthony Fauci. This is someone who's become a bit of a bete noir of people on one side of the argument. What involvement did he have, do you think, and why was he so keen to dismiss your ideas? Well, we don't know yet. I think the discovery is still
proceeding, but we do know that there were emails between him and Mark Zuckerberg very early in the pandemic, which, basically, was an offer first from Mark Zuckerberg to help the federal government with its pandemic response. Large parts of the emails that I've seen on that were redacted, so I can't really comment on exactly what it said, but we do know that Tony Fauci accepted the offer of help from Mark Zuckerberg. And we also know that Facebook implemented a very systematic regime of censorship of ideas after that, that it systematically made sure that any ideas that were contrary to what the CDC, what the NIH wanted out there would either be censored altogether, users would be tossed off the platform, or the ideas would be labelled, often unfairly, inaccurately with something that would say, 'the CDC doesn't think this is true, or something like that'. 'If you want more information', you know, straightforward applications of misinformation.
So we know for a fact that Tony Fauci was cooperating with Mark Zuckerberg from emails from early in the pandemic. You asked me about what the motives were - I think the key motive is that, if you're going to implement something as extensive, as damaging, with such widespread impact as a lockdown, you have to have scientific consensus. You cannot, under any circumstances, implement something like this unless it's truly the case that there is no contrary reasonable opinion about this within the scientific community. I think Tony Fauci in particular wanted to create an illusion of that scientific consensus that did not exist. It didn't exist in March of 2020 and, frankly, it never existed. As you can see, when we wrote the Great Barrington Declaration in October 2020, just a few months later, so many scientists had signed on to it. Even if you
say that there are many scientists on the other side, the point is that there was a debate going on inside the scientific community, and Tony Fauci and the federal government of the United States could not abide by that, the existence of a debate, because they implemented an extraordinary policy that required absolute consensus. There are some details in your case, I've been looking at the detail of it, and you mentioned some other aspects of Anthony Fauci's career, and I just want to bring that up, because you guys did. I'm quoting here: 'Prior to 2020, as head of NIAID, Dr. Fauci had overseen funding of risky gain of function research on viruses, including research at the Wuhan Institute of Virology. This included research funded through intermediaries such as Dr. Peter Daszak and the Eco Health
Alliance, among others. Why are you bringing that up? Is that because the controversy over the so-called lab leak theory was another one of these issues that were censored? Why is that relevant to your case? That absolutely is another example of censorship. Again, we know from early emails between Tony Fauci and some of the other scientists involved in that gain of function kind of work, that they coordinate together to create an illusion of consensus, that a natural origin was certain, that a lab leak story was essentially a racist idea that you shouldn't you shouldn't bring up. It's the same modus operandi. They used the power they had to create an illusion of consensus about a scientific factor that was, in fact, still in dispute - I think it's still in dispute - and suppressed and censored and smeared people on the other side of that. Scientists, people on the other
side of that debate, using tools like the press, using tools like social media censorship. If you posted about that early on in the pandemic, you would get censored by social media. It is very, very likely that the government, at the orders of the NIH, coordinated with social media to create that environment where people could not have those discussions online. So, just to be clear, then, this so-called lab leak theory for any audience members who don't know is the idea that, instead of being a natural virus that just emerged, it was somehow created at the Wuhan Institute of Technology in China, whether it escaped or whether it was released or whatever. And I
think this has now become quite a mainstream option. It's no longer a fringe idea, if that was the word he'd like to use. But is your suggestion that Anthony Fauci was particularly anxious about that because of his own history encouraging and funding that research, and so he almost had a personal axe to grind? There's no question that he was a champion of gain of function work in the years leading up to the pandemic, that he in particular personally approved grants from the NIH to the Eco Health Alliance, which is this organisation, an American organisation in part, that worked very closely with the Wuhan Institute of Virology, where they were doing studies and research on gain of function work on bat coronaviruses. So yeah, I think his role very directly connected to this, it certainly seems like to me a motive for why there was a cover up that he himself helped organise in the early days of the of the pandemic, January, February 2020.
Jenin Younes, is Anthony Fauci named as one of the defendants in this case? Is it just the federal government generally? Tell us about who's actually in the dock here. Well, there are a lot. I don't have them memorised. But yes, he's named. Biden is named, his press secretary, and so it's the
offices that tend to be named. So when you say Psaki, now it's the new press secretary, Karine Jean-Pierre. HHS, so a lot of agencies, Jen Easterly who's the head of CISA, because the Department of Homeland Security had quite a bit to do with this. CISA is an agency within it that deals with cybersecurity issues. And we didn't actually know about DHS's involvement until much more recently: we thought it was just HHS and CDC.
You're suing them, then, as part of the government rather than as individuals? Right, yes, they're being sued in their official capacity. So they can't be held personally responsible: it's very, very hard to hold government officials personally responsible for anything they can argue they did in their official capacity. So, Jenin, and what does success look like in this case? I mean, are we talking payouts, are we talking new laws that make it impossible in the future or an important precedent? What does success look like? That's a great question. We are not suing for money damages. So no money here. What we want is for a court to recognise that the government and social media companies cannot work together to censor people based on viewpoint, and the government also can't force them. Neither of those things are
constitutional, and I think it's extremely important going forward. It's one of the first types of cases to raise these claims because of the nature of social media being relatively new, and I don't know that there ever was such a high level of extensive coordination before this. So I think it's really, really important for courts to recognise this is not okay going forward. If that doesn't happen, then that means that the
government and social media companies can coordinate to silence people, and social media is the new public square. If you lose your Twitter account, for many people you're losing your voice and the ability to influence public opinion. So I think this case is really important. And do you think it will go all the way? If it's at the state level now, if there's a verdict that goes your way, do you think the government will appeal it? Do you think this is headed for the Supreme Court? Yeah, that's likely. Right now it's in a federal district court, which is the lowest federal court in the Western District of Louisiana. And then the next step is the Fifth
Circuit Court of Appeals, and then the Supreme Court would be next. I would be surprised if it didn't at least reach the Fifth Circuit, and I think there's a chance it will reach the Supreme Court at some point. Jay, why are you doing this? You've been through the wars during this pandemic. You were living the quiet life as an esteemed academic and now you've entered this - I guess it's become something of a cultural war or just a major disagreement in our society. Does this case not just make you even more in the spotlight, give you even more trouble? Why are you doing Yeah, it has been tremendously stressful. I spent most of my it? career - I'd never written an op ed before March 2020, Freddie.
It would be lovely to go back to being a scientist, or just a scientist, I guess. The problem here is that it's impossible if you have a scientific idea that's contrary to what some other very powerful people think, to express it: that's bad for science. My primary motivation here is to recreate or maybe regain an environment where active scientific work can happen. It has to be possible for people to have contrary ideas within science, then have fair discussion within it. With
the government not weighing in on what side it wants to take that, with the media then not responding to those governmental orders, and then responding by smearing scientists on the disfavoured side, that creates an environment where science can't happen. It's something else. It looks like science but it's not actually science. My main motivation here is to try to use the tools that American society has, the First Amendment being the primary one, to permit science to work again the way it ought to work. What about universities, is that another phase of this campaign? It feels like what you're focusing on here is the relationship between the government and social media, but the universities weren't exactly stellar in defending their own academics from these attacks. In fact, I remember, your own
institution, among others, at least Stanford University was very quiet when some of its top academics were being smeared. Is there another precedent that needs to be set or another case that needs to happen to make sure that universities need to behave in a different way? There should be, Freddie. I haven't had the emotional bandwidth to fight the fight at Stanford, it's been too hard in the public sphere. But it's absolutely the case that the universities also failed at this. Prominent academics lost
their jobs, some just for signing the Great Barrington Declaration. Many lost their opportunities for grant applications, collaborations. The universities permitted a hostile work environment against people, prominent people, who just disagreed with the supposed consensus over lockdowns. I think part of the motivation, at least in American universities, has to do with the fact that many prominent American universities are funded in large part by the government. When the government decides that one side is right, they have a tremendous influence on what universities do. That is definitely a fight that needs to happen, but it's not this particular lawsuit. And
frankly, I'm going to have to decide very carefully whether I have the emotional bandwidth for that fight. It's connected to this whole idea of misinformation, isn't it? If you did a Google Trends search of that word, it would barely have been searched for a few years ago, and now it's the word that you hear everywhere. And it's this idea that some ideas you can put in a special category of 'misleading and wrong' and therefore they should be banned from the public square. Is it your view that that whole campaign should just
stop and that there shouldn't be such a thing as misinformation? Or do you think we should still talk about misinformation, just be more careful about how we use it? I think we should get rid of it altogether. There's now an academic movement to try to identify misinformation using what appears to be scientific tools. But here's the problem, Freddie: how do you decide? Who gets to decide what is misinformation or not? There's no godlike person that knows the scientific truth from the beginning before even the science is done. That's what's happened here. There was a consensus reached, supposedly, and enforced long before the science had actually been done, when there was still tremendous scientific controversy about these things. There is no person or small set of people who know God's truth. It just doesn't
exist in science. What happens is, you have ideas that conflict with other ideas, you do experiments, and over time, people start to say, Okay, well these ideas are right, and these ideas seem wrong. But they're still open to revision. Now, you can have flat out misinformation but the way you address that is by putting up good information. Someone says, You inject someone
with the vaccine, you put - I don't even know how to say the theory - magnets or something, I don't even know what they mean. But the response to that isn't to censor those people. The response to that is to say, Look, this theory makes no sense, here's the evidence. And the government can play some role in that, the government does play a role in putting out scientific information. I've no problem with that. But then to use the social media companies to censor those other voices, I think often it just highlights them. It gives them more
prominence than they deserve. Those crazy theories about 5G and vaccines, I don't even know what the substance of the theories are. But the only reason I know the theories exist at all is because the government has told me that these things are misinformation. I never would have paid any attention to So it drives it underground, and then it comes back twice as them otherwise. strong. Jenin, what kind of chances of success do you think we have? What should we be looking at, do you think? Is it a 50% chance or a 30% chance? How confident are you? I hate to make predictions. I think it's a very good chance of
success. I will say it's just completely novel. There's really nothing like this. I mean, there are some cases that you can draw from that have some similarity. But, because of the nature of
social media, there's never been anything like this before. Some of the closest cases are, like the Pentagon Papers case for instance, where the government tells the New York Times they can't print this stuff about the Pentagon Papers. But that's different because it's not silencing Americans en masse to the degree that this does. So it's really hard for me to predict. I think any court that looks at this and understands the First Amendment and understands the implications here should find in our favour.
And if you're successful, it potentially has very major implications, doesn't it? Because it means that social media companies will then have a precedent that they can point to and say, "Well, no." If they get an email from a senior government official saying, "Hey, will you silence those guys? We don't like what they're saying" they will then hopefully respond and say, "Well, since that law case, we can't do that. I'm sorry, that's not our business." Is that what we're hoping for here, an actual sea change in how censorship takes place? That is exactly what I'm hoping for. To me the legal case is important, obviously, but I think that even more important is a norm inside the government and the norm inside American society and I hope world societies, that will say, Look, this is not right. Whenever the government approaches a social media company and says, Oh, yeah, you should censor this kind of idea, the social media companies just say, Go fly a kite. They should have as a sort of knee jerk reaction: No, I'm
not going to do this. I think media and government, there ought to be a bit of an adversarial relationship, and to have it so that they're colluding with each other to suppress ideas to sort of create narratives that may not be true, it's bad for society. Hopefully, cases like this, after we win, will create social norms so that these sorts of activities are seen as tawdry not right, and inconsistent with the norms of liberal governance. Jay, I have to ask you one more question before I let you go, which is, last time we spoke there was still quite a lot of pressure, a lot of tense atmosphere around these questions. It feels to me, I'm sitting in the UK, but it feels
to me like the atmosphere has changed. And if anything, the argument has been decided or is in the process of being decided much more in your favour. Do you feel that? Do you walk down the streets of Stanford and see more smiles and fewer people turning away? Yeah, I do. There's just a sense of people wanting to move on. And I don't get death threats every time I go on TV anymore, so maybe there's one data point. But I also think that people very widely view the lockdowns, if not a complete failure - I believe it was a complete public health disaster, damaging the lives of millions and millions of people - but even if they don't agree with that, they also for the most part think: what did it do? What did it accomplish? Most everyone got Covid anyway. So what was the point of it? I think that that
consensus is emerging. I think we had a lot of hard experience to get that consensus, I think even in October 2020, although it felt like we were the fringe in October 2020. So many scientists really did agree with us. Yet they censored themselves
because of exactly the kind of campaign that lawsuits are meant to fight against. So I think it's not surprising we won. This was the old pandemic plan. The Great Barrington Declaration was the old pandemic plan. It reflected a century of wisdom.
It's frankly the least original thing I ever wrote in my life. So I'm not surprised it turned out to be right. Well, Jay, if we are back to something more like a normal atmosphere, it is in no small part thanks to people like you who during those dark days continued to put your point of view across fearlessly, so thank you for that. Whether people
agree with you or not, we certainly support people being able to put their point of view across. We'll be watching with interest how the legal case proceeds, and thank you so much for telling us about it. Thank you so much. Thank you, Freddie. Well, there you have it. That was Professor Jay Bhattacharya
and one of the lawyers on his legal case called Jenin Younes. This might feel like a small deal. It's a case that is currently in the District Court in Louisiana, and nobody's paying it very much attention. But if they're successful, this
potentially makes history because it will change the government's ability to get involved in what they deem to be correct or incorrect information that social media companies are allowed to put out. And it will hopefully make people on all sides a little bit more wary before trying to silence opinions that they don't happen to like. Thanks to Janine and Jay and thanks to you for tuning in. This was UnHerd