DOJ Seeks Dismissal of States’ Online Speech Claims Against Biden

The U.S. District Court for Western Louisiana should dismiss a lawsuit from Missouri and Louisiana claiming Biden administration officials colluded with Big Tech to censor social media content because the states’ First Amendment claims are “meritless,” DOJ argued Wednesday in docket 3:22-cv-01213.

The court lacks subject-matter jurisdiction, and Louisiana Attorney General Jeff Landry (R) and Missouri AG Andrew Bailey (R) fail to state a claim, DOJ said in the administration’s second amended complaint. The AGs take “scattershot aim” at public statements made by government officials and even members of Congress and argue those remarks amount to “coercion” of or “collusion” with Big Tech to censor speech, DOJ said: “In effect, Plaintiffs ask this Court to hold every Executive Branch official who has ever communicated with social media companies about misinformation responsible for every company’s content-moderation decision, from 2020 into the future.”

The First Amendment doesn’t bar government officials from “sharing facts or opinions with private companies concerning the impact their conduct may have on the public welfare,” the filing said. A plaintiff has a high bar in proving First Amendment violations involving private parties, the department said: The plaintiff must “demonstrate that the private actor is itself engaged in state action, having been ‘coerced’ by or ‘colluded’ with the Government to suppress speech.” The plaintiffs can’t satisfy that “heavy burden” by “relying on speculative and conclusory allegations, talismanically repeating the word ‘censor’ and its cognates, or ignoring well-established doctrine,” said DOJ.

Government official statements cited by the AGs from news conferences, in written documents, in emails and at meetings don’t “constitute agency action,” the department said. This raises jurisdictional issues, the filing said: It’s necessary to identify “final agency action” to “invoke the Administrative Procedure Act’s waiver of sovereign immunity.” The states fail to state a claim because the complaint doesn’t “come close” to transforming “platform content-moderation decisions into the responsibility of the Government,” the filing said. The department noted the Supreme Court “cautioned against generously attributing private conduct to the Government.”

The court should dismiss President Joe Biden as a party to the case to “avoid the unnecessary separation of-powers conflict that would arise if the Court issued injunctive or declaratory relief against the President,” said DOJ. The plaintiffs haven’t provided any basis for ignoring an 1866 decision in Mississippi v. Johnson recognizing that federal courts lack jurisdiction to enjoin the president in the performance of his official duties, which was reaffirmed in Franklin v. Massachusetts in 1992, the filing said.