RFK Jr. Plaintiffs Have ‘Unassailable Standing,’ Says Motion to Intervene in SCOTUS Review

Though the respondent plaintiffs in the U.S. Supreme Court review of the social media injunction against the White House and four federal agencies “primarily assert their claims as censored speakers,” the plaintiffs in Kennedy v. Biden “assert the First Amendment claims of social media viewers and listeners all over the country,” said their motion to intervene Thursday (docket 23-411) in that SCOTUS review on behalf of the respondents (see 2310260070). The Kennedy plaintiffs also seek leave to file a brief in opposition to the government’s arguments to defeat the injunction.

The plaintiffs are Robert F. Kennedy Jr., Louisiana resident Connie Sampognaro and the Children’s Health Defense nonprofit. The government petitioners and the respondents don’t consent to the Kennedy plaintiffs’ motion to intervene, said the document. Four of the five individual plaintiffs in Missouri v. Biden opposed the Kennedy plaintiffs’ motion to join their First Amendment case, but U.S. District Judge Terry Doughty for Western Louisiana in Monroe granted the consolidation request over their objections (see 2307210011).

The rights and interests of individual social media users represented by the Kennedy plaintiffs “are critical to the just resolution of this case but are not directly represented by the existing parties,” said the motion to intervene. The Kennedy plaintiffs also have “unassailable standing,” it said. SCOTUS “has permitted new parties to join its proceedings in order to cure potential standing defects,” it said.

As the district court found, RFK Jr. has been “specifically targeted” by the government’s “efforts to induce social media censorship,” said the motion to intervene. Even now, Kennedy's speeches and interviews “continue to be blocked online,” it said. His “unique interests” as a presidential candidate, “and the interests of millions of Americans who wish to hear his views,” are of “vital importance to the constitutionality” of the government’s “censorship campaign,” it said: “These interests too are currently unrepresented here.”

SCOTUS has permitted intervention or joinder of new parties for two purposes, said the motion. In important cases, intervention can “cure potential standing or jurisdictional defects,” it said. It also can ensure “representation of parties whose rights will be adjudicated in the case at bar,” it said. SCOTUS has indicated that Rule 24 of the Federal Rules of Civil Procedure “provides important guidance when intervention is sought on appeal,” it said. Here, intervention is warranted both under SCOTUS precedents “and the standards set forth in Rule 24,” it said.

The intervention in support of the respondents by the Kennedy plaintiffs “will ensure standing,” said the motion. The standing of the Missouri plaintiffs, including that of the five individuals and of the states of Louisiana and Missouri, “is contested,” it said. The government argues that the individual Missouri plaintiffs lack standing because they can’t prove that they, specifically, are likely to be censored in the future, it said.

The government also has challenged the state plaintiffs’ parens patriae standing, said the motion. To the extent that the states allege that their own speech has been censored, the government contends that the states too can’t prove “a likelihood that they, specifically, will be censored” in the future, it said.

By contrast, the First Amendment rights of social media viewers and listeners “are subject to no such arguments,” said the motion. Unlike the Missouri plaintiffs, the Kennedy plaintiffs “need not prove” that they, specifically, will be censored in the future, it said. That’s because their challenge doesn’t depend on a claim “that their specific speech has been (or will be) censored,” it said.

The rights of social media consumers to access an uncensored public square is endangered by the government’s campaign “to induce social media censorship no matter which particular speakers are targeted or censored” in the future, said the motion. The Missouri plaintiffs “primarily assert speakers’ rights,” it said. The Kennedy plaintiffs “assert the rights of the social media audience,” it said.