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Missouri fights left-wing watchdog's move to axe fraud probe: 'Astonishing attack on federalism'

Democratic attorneys general frequently use same weapon, civil investigative demands, against pro-life pregnancy centers. Media Matters for America represented by firm tied to Russia collusion hoax.

Published: May 13, 2024 11:00pm

Updated: May 14, 2024 8:55am

A weapon favored by Democratic attorneys general to strain the resources of pro-life pregnancy centers and make them stop promoting "abortion pill reversal" is now being used to target a high-profile Democrat-aligned group that fights against abortion regulation.

Media Matters for America asked a federal court in Washington D.C. to stop Texas Attorney General Ken Paxton and Missouri Attorney General Andrew Bailey from using civil investigative demands (CIDs) to probe whether MMFA manipulated algorithms on Elon Musk's X, formerly Twitter, to prompt the pairing of blue-chip companies' ads with "pro-Nazi" content, and raise money off the alleged deception.

X itself went "thermonuclear" on MMFA with a lawsuit last fall alleging it "knowingly and maliciously manufactured" the pairing of antisemitic user content with ads by Apple, Bravo, IBM, Oracle and Xfinity, which X said would have never appeared organically.

The D.C.-based nonprofit won a reprieve last month against Paxton, securing a preliminary injunction from U.S. District Judge Amit Mehta, known nationally for presiding over former White House advisor Peter Navarro's Jan. 6-related prosecution and the Google antitrust trial.

Bailey, who sued MMFA in March for refusing to comply with his CID, is now trying to stop the same thing from happening to his investigation, accusing MMFA of "attempting to shut down Missouri courts" through federal preemption.

"That is not only a transparent attempt to get two bites at the apple; it is also an astonishing attack on federalism," Bailey told Mehta in a May 8 opposition to MMFA's motion for a temporary restraining order and preliminary injunction, repeatedly referencing Paxton's cases.

Mehta, an appointee of former President Barack Obama, issued an order Monday giving MMFA until May 20 to respond to Bailey's opposition and motion to dismiss. It said the proceedings against Paxton are stayed pending the Texas AG's appeal to the U.S. Court of Appeals for the D.C. Circuit.

MMFA argued Paxton's CID lacked jurisdiction, called it retaliation for the nonprofit's speech and said it violated D.C. and Maryland reporters' shield laws.

It is represented by law firms Gibson Dunn and Elias Law Group, whose founder, Democratic election superlawyer Marc Elias, is known for his promotion of the Russia collusion narrative and his recent loss of a lawsuit seeking to junk Wisconsin's witness requirement for absentee votes.

As a progressive counterweight to the conservative Media Research Center, MMFA's dedicated team for abortion rights has focused heavily on the new crop of state restrictions on abortion, including Arizona's "19th-century abortion ban," and perceived media bias in coverage.

CIDs don't have the same baggage as laws that specifically target the speech of disfavored groups. The Supreme Court and lower courts have frowned on laws restricting and compelling speech by pregnancy centers in the name of protecting consumers from deception.

Illinois Attorney General Kwame Raoul agreed to a permanent injunction against enforcement of its law after U.S. District Judge Iain Johnston, appointed by former President Donald Trump, called it "stupid and very likely unconstitutional."

Pro-life centers are currently suing Vermont for a similar law, with a hearing on the state's motion to dismiss scheduled for Thursday, according to the docket.

New York AG Letitia James followed through last week on her threat to sue pregnancy centers for their statements on abortion pill reversal, which the centers preemptively sued to stop

She claims their statements are deceptive because science allegedly refutes the reversal protocol of taking progesterone supplements to "outcompete" mifepristone, which blocks progesterone receptors to terminate a pregnancy. Yale School of Medicine reproductive research director Harvey Kliman said the protocol "makes biological sense."

The Supreme Court heard oral argument on a similar issue in March: New York's pressure on banks and insurance companies to avoid the "reputational risk" of business with the National Rifle Association, which united pregnancy centers and the pro-choice ACLU in opposition.

"How shocking it would be if the Missouri Attorney General asked a state court to issue an order preventing this Court from hearing this case," Bailey's opposition opens. "Yet Media Matters seeks exactly that extreme remedy, just in reverse."

The AG emphasizes that Mehta overruled Paxton because Texas law "did not permit Media Matters to challenge the CID," whereas Missouri law does and MMFA has already started raising its claims and defenses there, Bailey said.

He distinguished "immediate enforcement," which has not happened, from an "enforcement proceeding" that gives MMFA "a full and fair opportunity to raise all its claims in state court." Mehta should reject the nonprofit's "attempt to litigate here at breakneck speed," Bailey said.

MMFA's argument that the D.C. court has jurisdiction over Bailey because "he mailed something" to the nation's capital — the CID — is "self defeating" because it would mean "Missouri courts have jurisdiction over Media Matters ten times over," since the nonprofit solicits email subscriptions and donations from state residents, the opposition says.

Bailey cited a 9th Circuit ruling against pre-Musk Twitter when it sued Paxton for serving a CID related to its decision to permanently ban President Trump from the platform following the Jan. 6 Capitol riot. Because Bailey's CID is "not self-executing" and MMFA can raise its defenses in state court, a federal challenge is not "ripe," he said.

Missouri has "probable cause that Media Matters has been deceptive" in its portrayal of X for the purpose of raising money from in-state donors, according to the opposition, so the retaliation claim necessarily fails under SCOTUS precedent.

Mehta already rejected other MMFA's arguments with regard to Texas despite granting the injunction, Bailey argues: Its First Amendment case law "expressly permits using subpoenas to seek this kind of information" and "state shield laws do not apply extraterritorially."

The opposition repeatedly cites a February ruling by U.S. District Judge Trina Thompson, appointed by President Joe Biden, that rejected Yelp's lawsuit against Paxton in another dispute over pregnancy centers. 

Paxton sued Yelp first for "appending inaccurate and misleading language to listings" for pregnancy centers — saying they "typically provide limited medical services and may not have licensed medical professionals onsite" — while omitting the disclaimer from abortion providers' listings.

Even though Thompson concluded Yelp tells a "persuasive story" with its allegations of bad faith and she was "not convinced that Paxton acted entirely in good faith," the judge still found Yelp didn't meet the "arduous, narrow exception" the Supreme Court created for its precedent blocking federal lawsuits that would halt state court proceedings, Bailey said.

The Reporters Committee for Freedom of the Press is supporting Yelp's appeal to the 9th Circuit.

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