Jonathan Emord: The DHS Disinformation Board and the Attack on Individual Sovereignty

Don PalumboMay 1, 2022

In his testimony before the House Judiciary Committee, DHS Secretary Alejandro Mayorkas revealed a startling, heretofore secret, initiative within his agency to police the online speech of American citizens. Mayorkas, whose infamous abandonment of border security has rendered his official title an oxymoron, divulged (conveniently on the heels of Elon Musk’s planned liberation of Twitter from censorship and in time for deployment during the November 2022 mid-term elections) that DHS had initiated a “Disinformation Governance Board” to be chaired by left wing activist Nina Jankowicz. Jankowicz favors government regulation to rid conservative voices from media and endorses as fact two major falsehoods: that the Hunter Biden laptop story is fake and that the Trump-Russian collusion story is real. She envisions a dystopian world where government speech police block content deemed “disinformation,” a term she and DHS leave undefined to preserve unbridled censorship discretion. In short, she relishes the role of tyrant.

In his testimony, Mayorkas said that the Disinformation Governance Board would work with a network of local authorities to “identify individuals who very well could be descending into violence by reason of ideologies of hate, false narratives, or other disinformation and misinformation propagated on social media and other platforms.” In other words, the Board would be America’s new online speech police, complementing the role formerly played by Big Tech in league with governing Democrats, where politically selected bureaucrats would declare opinions with which they disagree forbidden.

Conveniently, the Biden Administration’s new speech police operate within an agency that surveilles domestic terrorists and has autonomous law enforcement capabilities. They may thus insist on compliance with their edicts with force at the ready. This Orwellian Ministry of Truth will target American citizens’ online speech critical of the administration, the very hallmark of every dystopian totalitarian regime and most notably Xi Jinping’s China.

This attack on American citizens’ free speech is not new for the Biden Administration. Attorney General Merrick Garland–at the urging of the National School Boards Association and the White House—established a Department of Justice initiative with the aid of the FBI and in coordination with local authorities to surveille, target, and prosecute parents who spoke critically of school boards.

Instances of federal speech policing have arisen repeatedly in American history, testing our commitment to core free speech principles protected by the First Amendment. During the administration of John Adams, the 1798 Alien and Sedition Acts authorized federal authorities to prosecute seditious libel (statements critical of the government, members of Congress, and the President), provoking a backlash and the 1798 Virginia and 1799 Kentucky Resolutions anonymously written by James Madison and Thomas Jefferson (the latter who served as Adam’s Vice President). In those resolutions Madison and Jefferson reaffirmed the role of the First Amendment to disarm the government of power over speech and press, insisting that the federal government has no power to establish an official speech orthodoxy by banning dissent. Indeed, in no small measure, Adams support for the Alien and Sedition Acts contributed to his defeat in the election of 1800 to Thomas Jefferson.

Fortunately for us all, the First Amendment protects our pre-political right to freedom of speech. Moreover, there is ample Supreme Court precedent firmly condemning instances when government establishes an official orthodoxy over speech in place of our wide open and robust marketplace of ideas and information. At root, the Biden Administration’s creation of a Disinformation Governance Board raises anew a question of sovereignty resolved at the birth of our Republic. Our Constitution rests on the proposition that people are sovereign and the state is their servant and, more particularly, that the people have the freedom to decide for themselves the relative worth of speech offerings and that government has no power to limit their access to those offerings.

The core principle of the First Amendment that no official may impose an orthodoxy over speech was articulated brilliantly seventy-nine years ago by Justice Robert H. Jackson inWest Virginia State Board of Education et al. v. Barnette et al., 319 U.S. 624 (1943). Jackson wrote: “The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” The freedoms of speech and press are among those very subjects. In the second paragraph of the Declaration of Independence, we find the foundation of individual sovereignty: that governments derive “their just Powers from the Consent of the Governed.” Indeed, Mayorkas and Jankowicz attack that foundation, meaning to deprive us of information indispensable to the exercise of informed choice, of the right to receive information and determine for ourselves its relative worth, of the right to be sovereign. As Jackson put it: “We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.”

In the DHS Disinformation Governance Board we find that haughty arrogance, characteristic of tyrants, whereby officials are presumed to know better than we do what is in our own best interests and assume it their right to lord over the idea and information market and deprive us of access to speech they find offensive. In America, that super editorial role is strictly forbidden by the First Amendment. The people are sovereign over matters of speech. We get to decide what to believe based on information freely shared in an open idea and information market, a market outside and independent of government.

Justice Jackson put it this way in profound words that today carry as much legal weight as when they were written: “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 or force citizens to confess by word or act their faith therein.”

It is the intent of the Biden Administration to strip Americans of their speech rights and rob them of their sovereignty. The DHS Disinformation Governance Board is a profoundly vile example of that intention. We must demand that the Board be disbanded and that the Biden Administration be denied the power to regulate the content of speech in the idea and information marketplace. It is the duty of members of Congress, who have each sworn an oath to support the Constitution, to act immediately to achieve that end; indeed, the failure to so act is an indictment of those who, through inaction, become complicit in the deprivation of the peoples’ liberties. And finally, Alejandro Mayorkas richly deserves impeachment. His latest act against Americans free speech rights rests atop a horrendous record of immigration law violations that have resulted in terrorist entry into the United States and in prolific drug trafficking, sex trafficking, gang violence, and crime all across America, due entirely to his unlawful abdication of the DHS Secretary’s legal duty to secure America’s borders.