Mo., La. AGs Showed 'Probable Right' to Relief, Says Judge in Biden Injunction Ruling

Missouri and Louisiana are likely to succeed on the merits of their First Amendment claim against defendants from the White House, Surgeon General's office, Centers for Disease Control and Prevention, FBI, National Institute of Allergy and Infectious Diseases, Cybersecurity and Infrastructure Security Agency (CISA) and State Department, said U.S. District Court Judge Terry Doughty, a President Donald Trump appointee, in a 155-page Fourth of July memorandum ruling (docket 3:22-cv-01213).

Doughty granted Louisiana AG Jeff Landry (R) and Missouri AG Andrew Bailey’s (R) request for a preliminary injunction against most of the nearly 70 federal government defendants in Missouri v. Biden in U.S. District Court for Western Louisiana in Monroe. The class action alleges the Biden administration coerced and collaborated with social media companies to control public narrative about COVID-19 vaccine and mask mandates and results from the 2020 election.

Under the injunction, most of the defendants are "enjoined and restrained" from 10 forms of interactions with social media companies, said Doughty's order. Top of the list is the requirement that they're not to meet with the companies "for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms," it said.

Expressly "not prohibited" by the injunction are eight forms of interactions involving criminal activity, national security or voter misinformation, it said. One guideline expressly doesn't bar the government defendants from contacting social media companies for the purpose of "exercising permissible public government speech promoting government policies or views on matters of public concern." DOJ and the White House didn't comment Wednesday about the ruling, including about any plans to appeal.

The defendants argued the plaintiffs were unlikely to succeed on the merits and lacked Article III standing. The defendants also argued the plaintiffs failed to show irreparable harm because the risk of future injury is low and that equitable factors and public interests weighed in favor of allowing defendants “to continue enjoying permissible government speech,” Doughty said.

In his memorandum, Doughty said it’s not necessary in ruling on a preliminary injunction that the applicant demonstrate an absolute right to relief. Citing West Virginia Highlands Conservancy v. Island Creek Coal Co., he said the plaintiffs need to establish only a “probable right,” and the plaintiffs here did so. The First Amendment, “subject only to narrow and well-understood exceptions, does not countenance governmental control over the content of messages expressed by private individuals,” Doughty said, referencing Turner Broadcasting v. FCC.

'Content-Based Discrimination'

Government action that’s “aimed at the suppression of particular views on a subject that discriminates on the basis of viewpoint, is presumptively unconstitutional,” Doughty said. The First Amendment “guards against government action ‘targeted at specific subject matter,’ a form of speech suppression known as ‘content-based discrimination,’” he said, citing National Rifle Association v. Cuomo. He also cited Police Department of Chicago v. Mosley, saying the government “may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.”

“If there is a bedrock principal underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” Doughty said. “The benefit of any doubt must go to protecting rather than stifling speech,” he said, citing Citizens United v. Federal Election Commission.

The plaintiffs are likely to succeed on the merits on their claim the federal government agencies “pressured and encouraged social-media companies to suppress free speech” by using meetings and communications with social media companies to pressure them to “take down, reduce, and suppress the free speech of American citizens,” Doughty said. “They flagged posts and provided information on the type of posts they wanted suppressed,” he said, saying their “unrelenting pressure” had the “intended result of suppressing millions of protected free speech postings by American citizens.”

“What is really telling is that virtually all of the free speech suppressed was ‘conservative’ free speech,” said the judge. Citing the 2016 election and the COVID-19 pandemic, Doughty said the government “apparently engaged in a massive effort to suppress disfavored conservative speech,” and that “targeting of conservative speech indicates that Defendants may have engaged in ‘viewpoint discrimination, to which strict scrutiny applies.'”

On the defendants’ assertion they made only requests -- not coercive demands -- to the social media companies, Doughty said: “The question is not what decision the social-media company would have made, but whether the Government ‘so involved itself in the private party’s conduct’ that the decision is essentially that of the Government.” The defendants “significantly encouraged” social media companies “to such extent that the decision should be deemed to be the decisions of the Government,” said the judge. The White House and surgeon general additionally engaged in “coercion of social-media companies" to such an extent that their decisions "should be deemed that of the Government,” he said. “It simply makes no difference what decision the social-media companies would have made independently of government involvement."

Doughty said FBI defendants argued that, based on alleged foreign interference in the 2016 U.S. presidential election, they were attempting to prevent foreign influence in the 2020 presidential election through meetings and emails with social media companies. The FBI had a 50% success rate on social media’s suppression of misinformation, and it did no investigation to determine whether the alleged disinformation was foreign or by U.S. citizens, the judge said. “The FBI’s failure to alert social-media companies that the Hunter Biden laptop story was real, and not mere Russian disinformation, is particularly troubling,” he said.

CISA Goes 'Even Further'

CISA “went even further,” Doughty said, by expanding the word “infrastructure” to include “cognitive” infrastructure, so it could create authority to “monitor and suppress protected free speech posted on social media.” The plaintiffs are likely to succeed on the merits of their claim the CISA defendants “believe they had a mandate to control the process of acquiring knowledge,” he said. Doughty noted CISA engaged with Stanford University and the University of Washington to form the Election Integrity Partnership, whose purpose was to allow state and local officials to report election information “so it could be forwarded to the social-media platforms to review.”

Doughty referenced a Nov. 21, 2021, statement from CISA Director Jen Easterly in which she said: “We live in a world where people talk about alternative facts, post-truth, which I think is really, really dangerous if people get to pick their own facts.” The First Amendment’s free speech clause “was enacted to prohibit just what Director Easterly is wanting to do: allow the government to pick what is true and what is false,” said Doughty. The plaintiffs are likely to succeed on the merits of their free speech claim against the CISA defendants for “’significantly encouraging’” social-media companies to suppress protected free speech, he said.

The plaintiffs are likely to succeed on the merits of their claims that there's "a substantial risk that harm will occur," and that that harm isn't "imaginary or speculative,” Doughty said. “Not only have the Defendants shown willingness to coerce and/or to give significant encouragement to social-media platforms to suppress free speech with regard to the COVID-19 pandemic and national elections, they have also shown a willingness to do it with regard to other issues, such as gas prices, parody speech, calling the President a liar, climate change, gender, and abortion.”

The plaintiffs are likely to succeed on the merits in establishing that the government used its power to silence the opposition, Doughty said: "This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech." Examples of "suppressed" social media content included posts opposing COVID-19 vaccines, masking and lockdowns, and those that questioned the validity of Biden's 2020 election victory, said the judge.

Calling the case still young, Doughty said evidence produced thus far “depicts an almost dystopian scenario.” During the COVID-19 pandemic, a period of widespread doubt and uncertainty, the government "seems to have assumed a role similar to an Orwellian ‘Ministry of Truth,’” he said, referencing George Orwell’s fictional novel 1984. Doughty did deny the plaintiffs' motion for a preliminary injunction against several of the defendants, including the Food and Drug Administration and the Treasury and Commerce departments. He also denied their motion for class certification.

Reaction was unexpectedly sparse Wednesday, the day after the holiday ruling. The New Civil Liberties Alliance hailed the ruling, saying three of its clients were “blacklisted, shadow-banned, de-boosted, throttled, and censored on social media for merely articulating views opposed to government-approved views on Covid-19 restrictions and regulations.” The lawsuit's agency defendants directed companies “to censor viewpoints that conflicted with federal government messaging on topics ranging from Covid-19 to elections,” it said.