Mark Changizi, et al. v. Department of Health and Human Services, et al.

CASE SUMMARY

Mark Changizi, Daniel Kotzin, and Michael Senger each had or have Twitter accounts with tens of thousands of followers or more. Their Twitter platforms provided them with a social network, and an outlet to express their views, to hear the views of others, and to engage with detractors and fans alike. Outrageously, the U.S. Surgeon General and the Department of Health and Human Services (HHS) have directed social media platforms including Twitter to censor alleged “misinformation” about Covid-19. The speech ban has included information the Government later conceded was true but that conflicted with the Government’s messaging on Covid-19 at the time. On March 3, the Surgeon General demanded that the tech companies turn over information about individuals who spread such “misinformation,” a clear intimidation tactic that HHS has labeled a “Request for Information” (RFI). In response to Government pressure, Twitter has permanently banned Mr. Senger, and temporarily suspended Mr. Changizi and Mr. Kotzin.

 

Photo: (from left to right) Michael Senger and Daniel Kotzin, Plaintiffs in Changizi v. HHS

The lawsuit alleges that Surgeon General Vivek Murthy and HHS Secretary Xavier Becerra, whom NCLA has sued in their official capacities, do not have the statutory authority to issue this RFI.

In May 2021, the White House began a coordinated and escalating public campaign to stop the flow of purported “health misinformation” related to Covid-19. In a May 5, 2021 press briefing, White House Press Secretary Jen Psaki stated that the President believed social media platforms have a responsibility to censor health “misinformation” related to Covid-19 vaccinations, that by not doing so they were responsible for American deaths, and that the President believed “anti-trust” programs were in order to effectuate this end. In other words, if tech companies refused to censor, they would face antitrust investigations—or worse. By July, the Surgeon General and HHS ratcheted up the pressure by issuing an advisory on the subject, commanding technology platforms to collect data on the “spread and impact of misinformation” and “prioritize early detection of misinformation ‘super-spreaders’ and repeat offenders” by “impos[ing] clear consequences for accounts that repeatedly violate platform policies.”

Following this initiative, Twitter began to suspend more and more accounts, some permanently. Between May and December 2021, all three Plaintiffs were suspended from Twitter due to their tweets about Covid-19. This sort of censorship strikes at the heart of what the First Amendment to the U.S. Constitution was designed to protect—free speech, especially political speech, much of which has later been vindicated as accurate. Adding insult to injury, on March 3, the Surgeon General issued his RFI, demanding that technology platforms turn over “information about sources of Covid-19 misinformation” to the Government by May 2, 2022.

The Surgeon General does not have the authority to issue this demand. The statute only gives him the authority to implement measures to stem spread of communicable disease. The statute cannot reasonably be interpreted to allow him to order tech companies to censor individuals with whom he disagrees on Covid policy, or to demand that Twitter hand over information about such account holders without a warrant based on probable cause. Demanding social media platforms, including Twitter, to turn over information about users that the Government deems problematic constitutes a warrantless search in violation of the Fourth Amendment to the U.S. Constitution.

NCLA does not condone every position taken on Covid-19 by those whose Twitter accounts have been suspended or banned. But by instrumentalizing tech companies, including Twitter—through pressure, coercion, and threats—to censor viewpoints that the federal executive has deemed “misinformation,” the Surgeon General has turned Twitter’s censorship into state action. The Government’s policy of pressuring Twitter and other tech companies to censor the Plaintiffs should be halted immediately, and this RFI must be set aside.

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CASE STATUS: Active

CASE START DATE: March 24, 2022

DECIDING COURT: U.S. District Court for the Southern District of Ohio, Columbus Division

ORIGINAL COURT: U.S. District Court for the Southern District of Ohio, Columbus Division

CASE DOCUMENTS

December 5, 2022 | Brief Amicus Curiae of the Foundation for Moral Law in Support of Plaintiffs/Appellants and Reversal
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December 5, 2022 | Brief of Amici Curiae Institute for Free Speech and Manhattan Institute in Support of Plaintiffs-Appellants and Reversal
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December 5, 2022 | Brief of Amicus Curiae Thomas More Society In Support of Plaintiffs-Appellants and Reversal
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December 5, 2022 | Brief of Amici Curiae for NetChoice, The Pelican Institute, and The Cato Institute in Support of Neither Party
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December 3, 2022 | Brief of Amicus Curiae Professor Eugene Volokh in Support of Neither Party
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December 2, 2022 | Brief of Amicus Curiae Liberty, Life, and Law Foundation in Support of Plaintiffs-Appellants and Reversal
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November 28, 2022 | Plaintiffs-Appellants’ Opening Brief in the U.S. Court of Appeals for the Sixth Circuit
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October 31, 2022 | Brief of Atlantic Legal Foundation as Amicus Curiae In Support of No Party and Reversal
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August 17, 2022 | Motion for Leave to File Supplement to Motion for Relief From Judgment Under Fed. R. Civ. P. 60(b)
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July 28, 2022 | Reply to Defendants’ Response to Motion for Relief From Judgement Under Fed. R. Civ. P. 60(b)
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July 14, 2022 | Response to Plaintiffs’ Rule 60(b) Motion
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June 14, 2022 | Amended Complaint for Declaratory and Injunctive Relief
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June 14, 2022 | Motion to File an Amended Complaint and Memorandum in Support Thereof
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May 5, 2022 | Opinion and Order
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April 27, 2022 | Reply in Support of Defendants’ Motion To Dismiss
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April 22, 2022 | Declaration of Mark Changizi
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April 22, 2022 | Declaration of Daniel Kotzin
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April 22, 2022 | Reply Memorandum in Support of Motion for a Preliminary Injunction and Opposition to Defendants’ Motion to Dismiss
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April 15, 2022 | Memorandum in Opposition to Plaintiffs’ Motion For a Preliminary Injunction and in Support Of Defendants’ Motion to Dismiss
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April 12, 2022 | Motion for Limited Expedited Discovery or, in the Alternative, to Exclude Defendants’ Evidence, and Memorandum in Support
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March 30, 2022 | Memorandum in Support of Motion for a Preliminary Injunction Oral Argument Requested
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March 24, 2022 | Complaint for Declaratory and Injunctive Relief
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PRESS RELEASES

November 29, 2022 | NCLA Sixth Circuit Appeal Asks Court to Halt Government-Directed Social Media Censorship

Washington, DC (November 29, 2022) – Biden Administration officials, including some within the Department of Health and Human Services (HHS), have violated the First Amendment by directing social media companies to censor viewpoints that conflict with the government’s Covid-19 messaging. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, appealed Changizi, et al. v. HHS, et al., which urges the U.S. Court of Appeals for the Sixth Circuit to reverse the lower court’s dismissal and allow the case to move forward.

Mark Changizi, Michael P. Senger, and Daniel Kotzin were active Twitter users who built large followings due to their reasoned criticism of Covid-19 restrictions. Statements by President Biden, Press Secretary Jen Psaki, and other federal officials unequivocally prove they told social media companies what and whom to censor. This fact makes the government responsible for suspensions and de-platforming of Plaintiffs’ accounts. Subsequent discovery in similar cases—including NCLA’s State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al. suit—has shown that the government used state power to browbeat social media companies into censoring non-government-approved Covid-19 views. Emails and text exchanges revealed through discovery in that case show a previously unimaginable level of governmental entanglement in this viewpoint-based censorship scheme.

In granting HHS’s motion to dismiss, the court below erred. The court disregarded statements made by the President, who is in charge of all Defendants, and by Jen Psaki, threatening tech companies with adverse action if they did not carry out specific Covid-19-related censorship aims. The court did so because the President was not named as a defendant, which ignores the clear import of his role under Article II of the Constitution. Furthermore, the timing of Plaintiffs’ suspensions corresponded to the government’s escalating demands, creating the inference that Twitter was responding to government pressure by censoring the Plaintiffs’ accounts.

The district court premised its determination that Plaintiffs lacked standing to bring their claims on erroneous interpretations of the governing legal standards, holding them to an unreasonably high burden at the pleadings stage. The court essentially required Plaintiffs to prove their allegations that they had been censored because of the government. But that high bar is not the right standard by which to judge a motion to dismiss.

Nor is that what Plaintiffs ultimately have to prove on the merits. First Amendment precedent holds that Plaintiffs only need to show that the government, through coercive means or entanglement with private companies’ decision-making, turned Twitter’s censorship into state action and that such state action chilled Plaintiffs’ speech. By declining to accept these statements as evidence of the government’s involvement in social media censorship, the court did not draw factual inferences in Plaintiffs’ favor, as it must do when assessing a motion to dismiss.

The Sixth Circuit must reverse the district court’s erroneous judgment. By instrumentalizing tech companies including Twitter—through pressure, coercion, and threats—to censor viewpoints that federal officials have deemed “misinformation,” those officials have turned Twitter’s censorship into state action. The government’s policy of pressuring Twitter to censor the Plaintiffs and their viewpoints should be halted immediately.

NCLA released the following statements:

“The government may not direct social media platforms to censor expression of certain viewpoints about Covid-19 or anything else. The law is clear that the First Amendment prohibits government from using private companies to accomplish what it cannot do directly. The reasoning underlying the district court’s dismissal order in this case would prevent any individual from bringing a case alleging such censorship, since it will almost always be impossible—without discovery—to prove the government targeted a specific person. We’re confident that the Sixth Circuit will recognize that the lower court handled this case wrong, as discovery produced subsequently in Missouri v. Biden reveals the existence of a vast censorship network at the highest levels of government.”
— Jenin Younes, Litigation Counsel, NCLA

“Whether the government was responsible for the censoring of our clients is a factual issue. The district court’s decision on the pleadings alone would give the government carte blanche to intimidate and cajole private actors in reducing the public square to only government-approved views, so it must be reversed.”
— John J. Vecchione, Senior Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

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March 25, 2022 | NCLA Takes on U.S. Surgeon General’s Censoring of Alleged Covid-19 “Misinformation” on Twitter

Washington, DC (March 25, 2022) – Mark Changizi, Daniel Kotzin, and Michael Senger each had or have Twitter accounts with tens of thousands of followers or more. Their Twitter platforms provided them with a social network, and an outlet to express their views, to hear the views of others, and to engage with detractors and fans alike. Outrageously, the U.S. Surgeon General and the Department of Health and Human Services (HHS) have directed social media platforms including Twitter to censor alleged “misinformation” about Covid-19. The speech ban has included information the Government later conceded was true but that conflicted with the Government’s messaging on Covid-19 at the time. On March 3, the Surgeon General demanded that the tech companies turn over information about individuals who spread such “misinformation,” a clear intimidation tactic that HHS has labeled a “Request for Information” (RFI). In response to Government pressure, Twitter has permanently banned Mr. Senger, and temporarily suspended Mr. Changizi and Mr. Kotzin.

The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, has filed a Complaint in the lawsuit, Changizi, et al. v. HHS, et al., in the U.S. District Court for the Southern District of Ohio. The lawsuit alleges that Surgeon General Vivek Murthy and HHS Secretary Xavier Becerra, whom NCLA has sued in their official capacities, do not have the statutory authority to issue this RFI.

In May 2021, the White House began a coordinated and escalating public campaign to stop the flow of purported “health misinformation” related to Covid-19. In a May 5, 2021 press briefing, White House Press Secretary Jen Psaki stated that the President believed social media platforms have a responsibility to censor health “misinformation” related to Covid-19 vaccinations, that by not doing so they were responsible for American deaths, and that the President believed “anti-trust” programs were in order to effectuate this end. In other words, if tech companies refused to censor, they would face antitrust investigations—or worse. By July, the Surgeon General and HHS ratcheted up the pressure by issuing an advisory on the subject, commanding technology platforms to collect data on the “spread and impact of misinformation” and “prioritize early detection of misinformation ‘super-spreaders’ and repeat offenders” by “impos[ing] clear consequences for accounts that repeatedly violate platform policies.”

Following this initiative, Twitter began to suspend more and more accounts, some permanently. Between May and December 2021, all three Plaintiffs were suspended from Twitter due to their tweets about Covid-19. This sort of censorship strikes at the heart of what the First Amendment to the U.S. Constitution was designed to protect—free speech, especially political speech, much of which has later been vindicated as accurate. Adding insult to injury, on March 3, the Surgeon General issued his RFI, demanding that technology platforms turn over “information about sources of Covid-19 misinformation” to the Government by May 2, 2022.

The Surgeon General does not have the authority to issue this demand. The statute only gives him the authority to implement measures to stem spread of communicable disease. The statute cannot reasonably be interpreted to allow him to order tech companies to censor individuals with whom he disagrees on Covid policy, or to demand that Twitter hand over information about such account holders without a warrant based on probable cause. Demanding social media platforms, including Twitter, to turn over information about users that the Government deems problematic constitutes a warrantless search in violation of the Fourth Amendment to the U.S. Constitution.

NCLA does not condone every position taken on Covid-19 by those whose Twitter accounts have been suspended or banned. But by instrumentalizing tech companies, including Twitter—through pressure, coercion, and threats—to censor viewpoints that the federal executive has deemed “misinformation,” the Surgeon General has turned Twitter’s censorship into state action. The Government’s policy of pressuring Twitter and other tech companies to censor the Plaintiffs should be halted immediately, and this RFI must be set aside.

NCLA released the following statements:

“It’s difficult to overstate the federal government’s cynicism in pretending to respect the First Amendment rights of American citizens while explicitly working with a company whose CEO says it ‘is not to be bound by the First Amendment’ in silencing American citizens on the most widely-used platform for political discourse.”
— Michael P. Senger, Plaintiff, Changizi, et al. v. HHS, et al.

“The Surgeon General apparently believes he can do whatever he wishes, even going so far as to commandeer technology companies to stifle the perspectives of those who differ from the government on Covid policies. But Congress has not given him the authority to coerce social media platforms into censoring the voices of those with whom he disagrees, and in fact it could not have given him this power. The Surgeon General’s demand has turned Twitter’s censorship into government action. Thus, this viewpoint-based suppression of speech violates our clients’ First Amendment rights to free speech.”
Jenin Younes, Litigation Counsel, NCLA

“Surgeon General Murthy’s RFI is really a Request for Intimidation. HHS is a serial violator when it comes to abusing its statutory power. Incredibly, HHS is relying on the exact same statute to issue the RFI here that it relied on the past two years to justify its unlawful nationwide eviction moratorium. The Supreme Court finally shot down the illegal moratorium. NCLA hopes lower courts are quicker to act on this latest unconstitutional outrage.”
Mark Chenoweth, Executive Director and General Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document