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'George Orwell, call your office': State outsourced censorship of conservative media, suit says

By funding and promoting private disinformation cops who targeted advertising revenue, State Department violated First Amendment, Administrative Procedure Act and its own statutory limits, publishers say.

Published: December 6, 2023 11:00pm

Updated: December 7, 2023 10:19am

The State Department is indirectly regulating the American media, a "scheme [that] is unprecedented in history," by funding, promoting "and/or" marketing private organizations that seek to starve conservative publishers of advertising revenue, according to a wide-ranging lawsuit filed Tuesday

The Daily Wire and The Federalist allege the department, its Global Engagement Center and officials including Secretary Antony Blinken have violated First Amendment speech and press freedoms, far exceeded their statutory authority and ignored regulatory procedure through their efforts with the Global Disinformation Index and NewsGuard "[a]t a minimum."

"State Department disinformation tools were developed […] as tools of warfare – information warfare – to shape the perceptions and opinions of others," limited by statute to "foreign affairs," the suit reads. 

Those tools have been "misappropriated and misdirected to be used at home against domestic political opponents and members of the American press with viewpoints conflicting with federal officials," the plaintiffs allege.

Just as the Supreme Court ruled that it "strains credulity" for the CDC to claim it can impose a "nationwide moratorium on evictions" in response to COVID-19 based on a "fumigation and pest extermination" statute, State cannot credibly claim its "organic statute authorizes a secretive scheme" to fund such development or test and market these "censorship enterprises," they say.

Texas Attorney General Ken Paxton is representing the state in the lawsuit, alleging the feds' efforts also interfere with a currently suspended Texas law (HB 20), now under review by the Supreme Court, that requires content neutrality from large social media platforms.

"George Orwell, call your office: The Disinformation Governance Board is back!" lawyer Peggy Little of the New Civil Liberties Alliance, which is representing the conservative publishers for the third time in skirmishes with the federal government, said in a written statement, referring to the discredited, then disbanded Department of Homeland Security entity.

The private entities themselves aren't defendants, though the left-leaning Consortium News in October sued the feds and NewsGuard, a rating system for news and information websites, on allegations including defamation.

House Oversight Committee Republicans grilled Blinken shortly after the revelation about his department's indirect funding of GDI through the National Endowment for Democracy and through GEC's sponsorship of the "retired" Disinfo Cloud platform in February. 

The department redacted much of the contents in the vast majority of emails turned over this summer in a Freedom of Information Act lawsuit seeking details on its funding of GDI. Twitter scoffed internally at GEC's purported disinformation reports, the Twitter Files showed.

"As a general matter, we do not comment on pending litigation," a State Department spokesperson wrote in an email Wednesday. 

GDI, which licenses to advertisers its list of those flagged for disinformation, explicitly named conservative publications in an October 2022 brief on online media and "disinformation risk." 

The Daily Wire is a "high" risk for "bias" and "sensational" language and visuals, and The Federalist is a "maximum" risk for bias, sensational language and frequent "language that demeans, belittles or otherwise targets individuals, groups or institutions," the brief states. GDI put them on its 10 "riskiest" news sites, all right-of-center or libertarian, in its full report that December.

The suit says NewsGuard rates both publications as "unreliable" but doesn't provide a source, possibly because NewsGuard charges a subscription for access to its ratings. It publicly identified The Daily Wire as unreliable after the 2020 elections.

Much of the suit covers previous reporting by Just the News from litigation, but NCLA counsel Margot Cleveland – also the Federalist senior legal correspondent – said it newly discloses the State Department "reconstituted its same censorship team after supposedly disbanding 'Disinfo Cloud,'" whose website was funded and supported by GEC's Technology Engagement Division, also known as "Team" or TET.

Disinfo Cloud served as the "alter ego" of the department and "de facto arm" of TET, the suit says, "funnel[ing]" taxpayer money to GDI and others through the platform. It was created by Park Advisors, which is led by former State employee Christina Nemr, with a nearly $3 million contract that does not appear to be included on USAspending.gov.

The platform hosted hundreds of "countering propaganda and disinformation" tools and technologies, which the plaintiffs believe "included many that targeted American speech" and theirs specifically. Its Twitter account also promoted NewsGuard and GDI, including the stated purpose of starving "disinformation websites" of ad revenue.

The plaintiffs believe that GDI and NewsGuard work with the World Federation of Advertisers and its subsidiary Global Alliance for Responsible Media "to steer blue-chip advertisers away from" them, with "devastating consequences."

Nemr resurrected Disinfo Cloud under a new name, Becera, in January 2022 and has since received over $1 million in State Department awards as a sub-grantee, the suit alleges. (The USAspending.gov link displays unrelated "Prime Awards" by default, but Becera's awards can be viewed by changing the upper-right toggle to "Sub-Awards.")

The department's congressional authority did not stray from foreign affairs even when Congress "dramatically expanded" GEC's mission in 2019, explicitly prohibiting funding for purposes beyond "countering foreign propaganda and misinformation that threatens United States national security," the suit says.

Even if the feds "did not censor by means of contract and encouragement (they did), they violated the First Amendment by offering coordination," which the platforms relied on "to ensure they are all censoring the same sorts of materials and not just driving customers to competitors" – functions they can't do themselves without "antitrust difficulties," the plaintiffs allege.

And even if the court determines the department's behavior constitutes "final agency action" in line with the Administrative Procedure Act, the "censorship scheme is arbitrary and capricious because it has been entirely secretive and non-transparent," with no attempt to explain "how it serves the agency’s remit to manage foreign affairs," according to the suit.