On COVID origins and outsourced censorship, State Department feels the squeeze from Congress, court

The State Department is getting squeezed for information from two sides, with a federal court greenlighting a First Amendment lawsuit against its funding of media-blacklist groups and Congress demanding declassification of its documents on a potential COVID-19 leak source.

U.S. District Judge Jeremy Kernodle both refused to dismiss three of four counts in the outsourced-censorship lawsuit by Texas, The Daily Wire and The Federalist, and granted expedited discovery that forces State officials and third parties to answer subpoenas and sit for depositions by this summer, which the plaintiffs would use to seek a preliminary injunction.

Notable for rejecting a congressional lawsuit to overturn the election that denied a second term to the president who appointed him, Kernodle upheld the plaintiffs' legal standing to sue and refused to transfer the case to the federal court in D.C. — presumably friendlier to the feds.

Those decisions, his need of further information to "resolve the pending motion for a preliminary injunction," and the fact that "regular discovery is forthcoming" anyway weigh in favor of expedited discovery, whose additional burden is "slight," the judge said.

The conservative publishers' lawyers at the New Civil Liberties Alliance announced the orders late Tuesday.

State's Global Engagement Center (GEC) "finance[s] the development and promotion of censorship technology and enterprises," including NewsGuard and the Global Disinformation Index, in violation of its foreign-only statute, NCLA said. 

The domestic-focused scheme sought to starve publishers of advertising revenue who "oppose the government's narrative," by "demoting and labeling their stories as risky or unreliable" to social media and advertisers, NCLA said. The disinfectant of sunlight led the State-funded National Endowment for Democracy to cut off its GDI funding,

While the publishers' injuries from blacklisting are straightforward, the Lone Star State argued the federally funded arrangement interferes with its enforcement of a Texas social media content-neutrality law, a case the Supreme Court heard in February.

The House Select Subcommittee on the Coronavirus Pandemic said it reviewed classified State documents that "credibly suggest" COVID emerged from a "lab related accident," the Chinese Communist Party tried to "prevent, and in fact obstructed, a fulsome investigation," and the Wuhan Institute of Virology has a "seamless relationship" with the military.

State turned over highly redacted versions of the cables in a Freedom of Information Act production to watchdog U.S. Right to Know, leaving intact portions of their subject lines and headings but little else.

Chair Brad Wenstrup, R-Ohio, asked Secretary Antony Blinken Tuesday to rapidly declassify them and give the subcommittee a staff-level briefing before May 14. State refused that briefing before EcoHealth Alliance President Peter Daszak testified on its funding of WIV with U.S. taxpayer dollars, Wenstrup said.

The State Department Press Office gave Just the News an unattributed statement in response to queries about the ruling and subcommittee request: "As a general matter, we do not comment on communications with Congress.

We will continue to work closely with the Committee as they address the COVID-19 pandemic."

GEC paid Park Capital to create and manage the open-source platform Disinfo Cloud, whose administrator expressly made its tools and technologies to "anyone working in the counter-disinformation space," foreign or domestic, Judge Kernodle wrote, recounting claims. 

Its Silicon Valley office peddled the platform to X, Meta and LinkedIn, asked them "what your office needs to counter propaganda and disinformation," then "relocated the information … to a new platform" after shuttering Disinfo Cloud, the suit claims.

GEC encouraged Disinfo Cloud users — "academia, the private sector, and tech vendors" — to use its "testbed" to measure the effectiveness of their tools against propaganda, and it still operates a testbed that seeks to censor American speech, the judge's summary of claims says.

Many of the activities were hidden in plain sight, including the U.S.-Paris Tech Challenge that awarded $100,000 to GDI to starve supposed sources of disinformation of ad revenue and a $25,000 "COVID-19 misinformation and disinformation" tech challenge whose winners, including NewsGuard, were American companies targeting American speech, the suit says.

Kernodle said courts have repeatedly granted Texas standing to challenge federal actions that infringe on its laws, including nuclear waste storage and abortion. It alleges ongoing harm because GEC is still "encourag[ing] social media platforms to censor and deplatform [conservative publishers]—and that the platforms are obliging."

The requests were less than optional, the judge said: "Defendants underestimate the power of the State Department … especially during a global pandemic like COVID-19" to "significantly encourage" compliance with its directives.

The Texas nuclear-waste challenge didn't depend on the Nuclear Regulatory Commission requiring a Texas facility to store waste, and the state didn't have to wait for an abortion provider to violate its restrictive law to challenge federal guidance, Kernodle said. 

It doesn't matter that the 5th U.S. Circuit Court of Appeals stayed its ruling vacating a lower court's injunction against the Texas social media law pending Supreme Court review, because the feds are also guilty of speculation that "the Fifth Circuit’s decision will be reversed and the injunction will be reinstated," he wrote.

Kernodle cited the 5th Circuit's ruling against the feds in the social media censorship challenge by Missouri and Louisiana, which said some content moderation decisions were "likely attributable at least in part to the platforms’ reluctance to risk the adverse legal or regulatory consequences" of refusing federal censorship directives. 

He mocked State's "single, conclusory statement" by a GEC official — that it hasn't tried to block enforcement of state law — as "hardly sufficient to lodge a factual attack on jurisdiction." Kernodle reminded the feds "the dispute at issue ... is the merits question" (emphasis original).

"[W]hen viewed in context," the publishers made "more than sufficient" allegations for now that they continue to suffer injury from both GEC's past and ongoing actions, Kernodle said. 

The Daily Wire and The Federalist said social media companies "utilize GDI and NewsGuard through the World Federation of Advertisers and Global Alliance for Responsible Media to 'steer bluechip advertisers away'" from them.

While the feds described these as mere "labels and conclusions," the government unsuccessfully made the same argument in the lawsuit by Missouri and Louisiana, the judge said. Social media users alleged prior censorship, even if it had stopped, "caused them to self-censor and carefully word social-media posts" to avoid future censorship, he said.