NCLA Petitions 6th Circuit to Rehear Changizi First Amendment Case

Biden administration officials, including some in the Department of Health and Human Services, violated the First Amendment by directing companies to censor viewpoints that conflict with the government’s COVID-19 messaging, said a New Civil Liberties Alliance petition Tuesday asking an en banc 6th Circuit U.S. Court of Appeals or the three-judge panel to rehear Changizi, et al. v. HHS, et al.

Mark Changizi, Michael Senger and Daniel Kotzin were Twitter users suspended “after building large followings due to their reasoned criticism of Covid-19 restrictions,” said a Tuesday NCLA news release. Statements by President Joe Biden, then-White House Press Secretary Jen Psaki and other federal officials “unequivocally prove they told social media companies what and whom to censor, making the government responsible for suspensions and de-platforming” of plaintiffs’ accounts, it said.

Discovery in similar First Amendment cases -- including Missouri v. Biden, set for hearing before the U.S. Supreme Court -- shows that “the government browbeat social media companies into censoring non-government-approved Covid-19 views,” said NCLA. But on Sept. 14, a 6th Circuit panel “wrongly affirmed the district court’s motion to dismiss Changizi, Senger and Katzin’s suit” for lack of standing to bring their claims because they suffered no concrete harm (see 2306160011).

In oral argument in June, DOJ attorney Daniel Winik argued that for federal courts to have jurisdiction in the case, “the injuries that plaintiffs allege must have been caused by [HHS] and must be redressable by an injunction against HHS,” but Twitter “disciplined plaintiffs under policies it put in place before the series of governmental statements that the plaintiffs describe as the surgeon general’s initiative" (see 2306150049).

NCLA said Tuesday that the 6th Circuit panel and the district court judge “refused to consider evidence, which surfaced after the initial complaint’s filing, that substantially corroborated” plaintiffs’ claims. “The standard the Changizi opinion sets -- which conflicts with clearly established, governing precedent -- would prevent many litigants with legitimate legal claims against surreptitious federal censorship from obtaining the relief they deserve,” it said.

The alliance cited the 5th Circuit’s Sept. 8 granting of a preliminary injunction in Missouri v. Biden that would block White House officials and several federal agencies from “coercing or significantly encouraging social media platforms to censor constitutionally protected speech.” The 6th Circuit partially based its decision to deny standing in Changizi on a factual error, claiming the constitutional violations in Missouri v. Biden occurred “on a more comprehensive scale” rather than “with respect to discrete individual plaintiffs,” NCLA noted.

“But, of course, the Fifth Circuit judges who granted the Missouri v. Biden injunction did address censorship against the five individual plaintiffs in that case, finding they each had proper standing," said NCLA. The en banc 6th Circuit “should correct the panel’s error and allow the Changizi plaintiffs to continue their lawsuit seeking to put a stop to the government’s extensive social media censorship activities,” NCLA said.