By: Jonathan Turley | June 14, 2024
We have previously discussed the view of Michigan Law Professor and MSNBC legal analyst Barbara McQuade on free speech. We have strikingly different views on free speech. McQuade just published “Attack from Within: How Disinformation Is Sabotaging America” and calls free speech our “Achilles heel.” My book, The Indispensable Right: Free Speech in an Age of Rage, is out in the coming days with a more robust view of free speech.
Notably, McQuade’s call to limit free speech is justified as needed to combat disinformation, misinformation, and malinformation. Yet, McQuade just went public with a full-throated defense of what the U.S. government now calls a “conspiracy theory.” She maintains that the Hunter Biden laptop should still be discounted or dismissed as Russian disinformation.
In her comments, Professor McQuade joins the Post’s Philip Bump as one of the last dogs in this fight. Most media figures have long accepted the view of the U.S. government that the Hunter Biden laptop is “real” and authenticated.
I have previously disagreed with Professor McQuade on issues such as her belief that former president Donald Trump could be charged with manslaughter over the January 6th riot. Yet, those disagreements represent materially different understandings of the operative legal standards. Harvard Professor Laurence Tribe went even further in arguing that Trump could be charged with attempted murder. Academics can disagree on such matters and free speech allows us to hash out our differences.
However, I was still surprised by the effort to resurrect the Russian disinformation claim. Professor McQuade noted that the agent at the Biden trial could not say with certainty that nothing was changed to the laptop before it was obtained by agents from the computer shop. However, FBI agent Erika Jensen said that there was no evidence tampering.
That space, however, was big enough to drive a conspiracy theory through on X:
As noted by @emptywheel, however, questions remain about the chain of custody of the laptop, and [FBI] Agent [Erika] Jensen testified that she was unable to say whether the laptop was tampered with before the FBI obtained it.
And, as @AshaRangappa has noted, even if the content was authentic, it still may have been a Russian influence operation, just like the DNC hack-and-leak operation, designed to sow discord. If so, mission accomplished! […] Therefore, it remains unknown whether Russia was involved with the scheme, and it is still correct to say that the laptop has “all of the hallmarks of a Russian intelligence operation.”
Under this theory, any negative stories found in documents or electronic sources can have “the hallmarks of a Russian intelligence operation” in any given election. That same skepticism, of course, did not apply to the Steele dossier, which was secretly funded by the Clinton campaign and found by U.S. intelligence as containing possible Russian disinformation.
It is a variation on proving a negative. McQuade and others appear to be arguing that you must prove that there was no Russian involvement before giving weight to the damaging contents of the laptop.
Of course, there still has been no showing of any fake file or email. To the contrary, the most damaging emails on influence peddling and other potential criminal conduct have been verified. Yet, McQuade is repeating the claim that “even if the content was authentic, it still may have been a Russian influence operation.” There is also the more obvious explanation that Hunter abandoned his laptop at a computer shop and it was given to the FBI.
What is striking is how advocates are now abandoning the claims of false emails and files in favor of an argument that it may be true but still disinformation. This is consistent with the positions of many academics and the Biden Administration. The Cybersecurity and Infrastructure Security Agency (CISA) maintains this position.
CISA head Jen Easterly declared that her agency’s mandate over critical infrastructure would be extended to include “our cognitive infrastructure.” That includes not just “disinformation” and “misinformation,” but combating “malinformation” – described as information “based on fact, but used out of context to mislead, harm, or manipulate.”
The chain of custody argument continues to be used in Congress despite the federal court and federal agencies recognizing the authenticity of the laptop. The Delaware jury also did not appear persuaded by the claims of Hunter Biden’s defense counsel. It is, in my view, transparently evasive. The issue remains the files on the laptop detailing a massive influence peddling operation and a myriad of criminal acts committed by the President’s son. None of those files have been challenged by evidence of tampering or planting.
Ironically, the continued effort to keep this theory alive seems precisely the type of disinformation that Professor McQuade has cited in justifying limits on free speech.
There are obviously many media and academic figures who are heavily invested in what the government now calls a “conspiracy theory.” I previously discussed how the Bidens have succeeded in a Houdini-like trick in making this elephant of a scandal disappear from the public stage. They did so by enlisting the media in the illusion. Houdini knew the trick would work because the audience wanted the elephant to disappear.
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