Judge impressed by evidence of Biden administration coercion in social media censorship case

More like Rhode Island commission that warned distributors about obscene books than California elections office that flagged social media posts with no implied threat, ruling says.

Published: March 21, 2023 11:15pm

Updated: March 21, 2023 11:22pm

The Biden administration is facing an existential threat to the government-wide regime it set up to curtail purported misinformation about COVID-19, elections and Hunter Biden's laptop, as a federal judge knocked down all but one challenge to a censorship lawsuit by Louisiana, Missouri and doctors.

Not only have the plaintiffs established standing to sue and sufficiently alleged that federal coercion is responsible for the suppression of their comments on Facebook, Twitter, LinkedIn and YouTube, but it's likely to keep happening without intervention, U.S. District Judge Terry Doughty wrote in a 77-page ruling that clears the way for a trial.

"Their allegations are more than complaints of past wrongs," the Monroe, La.-based judge said, referring to the non-state plaintiffs, including epidemiologists Jay Bhattacharya and Martin Kulldorff, coauthors of the anti-lockdown Great Barrington Declaration, and psychiatrist Aaron Kheriaty, fired by the University of California Irvine for refusing its COVID vaccine mandate.

"The threat of future censorship is substantial, and the history of past censorship is strong evidence that the threat of further censorship is not illusory or merely speculative," Doughty wrote.

The states have plausibly alleged the administration trampled on their "quasi-sovereign interests" in "protecting the freedom of expression of their residents" and enjoying "the benefits that are to flow from participation in the federal system," namely First Amendment rights, the judge said.

The defendants got only a single win, and not cleanly. Doughty dismissed the sought injunction against President Biden but said it's an open question whether he's subject to declaratory relief that resolves the legal rights of the parties, due to uncertain case law.

Unlike previous failed censorship lawsuits led by COVID analyst Justin Hart and theoretical cognitive scientist Mark Changizi, the states and doctors have thoroughly fleshed out "the full picture," the ruling says, finding that statements by federal officials were "tied temporally" and "directly coincide[d] with the deboosting, shadow-banning, and account suspensions" cited in the lawsuit.

The plaintiffs alleged a "full scheme of coordination" that went beyond "a few sporadic statements by a single congressman," he wrote, referring to the Association of American Physicians and Surgeons' failed lawsuit against then-House Intelligence Committee Chair Adam Schiff (D-Calif.) for pressuring social media companies to censor purported vaccine misinformation.

The states can also credibly claim to have suffered direct censorship, Doughty concluded. Soon after a raft of public censorship demands, including President Biden's "killing people" accusation, YouTube censored the Louisiana Department of Justice's videos of its residents "criticizing mask mandates and COVID-19 lockdown measures." It also pulled down St. Louis County public meetings where residents challenged the evidence for mask mandates.

The plaintiffs got their ammunition from extensive legal discovery, including depositions by then-National Institute of Allergy and Infectious Diseases Director Anthony Fauci, CDC public affairs official Carol Crawford and FBI Special Agent Elvis Chan, among others.

"The ruse that it was just a coincidence that all the tech companies silenced the same people saying the same things at the same time has been exposed for the canard it is," New Civil Liberties Alliance Senior Litigation Counsel John Vecchione, who is representing the doctors, said in a press release.

Doughty wasn't impressed with the feds' reasoning that they can't be sued due to sovereign immunity. Many of the "central claims" by the plaintiffs are based on stopping the Biden administration from violating the First Amendment or dozens of officials across agencies from acting outside their powers by demanding "de facto prior restraints," he said.

The plaintiffs also "have the better argument" that the feds violated the Administrative Procedure Act through "discrete agency action in the form of targeted censorship," even if coercing and colluding with social media to censor "disfavored speakers and viewpoints" doesn't constitute "final agency action," according to Doughty.

The judge compared the feds' alleged actions to those of a "legislatively-created" Rhode Island commission that sent official notices to distributors that certain books and magazines "had been declared objectionable for sale or distribution," constituting state censorship attempts.

He cited then-White House Press Secretary Jen Psaki's public demand to censor the "Disinformation Dozen," which includes anti-vaccine activist Robert F. Kennedy Jr., and Surgeon General Vivek Murthy's request for information from social media companies, which is plausibly "an implied threat of future regulation."

The Department of Homeland Security's repeated bulletins identifying misinformation and disinformation as "domestic terror threats" are arguably state actions that "social-media companies would not lightly disregard," the judge said. So are the voluminous records of "significant encouragement" to censor that federal officials gave social media privately.

These are distinct from the California Office of Elections Cybersecurity's practice of flagging Facebook and Twitter posts as "erroneous or misleading," which the 9th U.S. Circuit Court of Appeals recently deemed "attempts to convince" because they didn't come with "any threat or attempt at coercion," Doughty said.

The feds have not come close to distinguishing their alleged actions, especially threatening antitrust enforcement against resistant tech platforms and revoking their Section 230 liability immunity, from the conduct that courts have repeatedly deemed state action, he found.

This threat plausibly became "more forceful" when Democrats took control of the White House and Congress and President Biden appointed Merrick Garland as attorney general, giving him power to "unilaterally institute antitrust actions against social-media companies," the ruling says.

It's more than the "arms-length" relationship between the California elections office and social media companies, which constituted "a single message from an unidentified member of a state agency to Twitter," Doughty said.

Fauci and officials from the CDC, FBI, DHS and State Department allegedly participated in "a formal government-created system" comprising meetings to discuss censorship, "privileged reporting channels" and "funding and establishing federal-private partnership to procure censorship of disfavored viewpoints," the ruling says.

It's irrelevant that the plaintiffs aren't challenging the constitutionality of Section 230, whose liability shield for tech platforms is worth "billions of dollars per year," Doughty told the feds.

They allege that using the liability shield "as a metaphorical carrot-and-stick combined with the alleged back-room meetings, hands-on approach to online censorship, and other factors" turns the private censorship into state action, which plausibly qualifies as "joint participation, entwinement ... subsidization, authorization, and encouragement."

These clearly constitute "viewpoint discrimination and prior restraints" in violation of the First Amendment and APA if proven, Doughty said.

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