State of Missouri ex rel. Schmitt, et al. v. Biden, et al.

CASE SUMMARY

Public statements, emails, and recent publicly released documents establish that the President of the United States and other senior officials in the Biden Administration violated the First Amendment by directing social-media companies to censor viewpoints that conflict with the government’s messaging on Covid-19.

NCLA joined the lawsuit, State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al., representing renowned epidemiologists and co-authors of the Great Barrington Declaration, Drs. Jayanta Bhattacharya and Martin Kulldorff, as well as Dr. Aaron Kheriaty and Jill Hines. Social media platforms, acting at the federal government’s behest, repeatedly censored NCLA’s clients for articulating views on those platforms in opposition to government-approved views on Covid-19 restrictions.

This insidious censorship was the direct result of the federal government’s ongoing campaign to silence those who voice perspectives that deviate from those of the Biden Administration. Government officials’ public threats to punish social media companies that did not do their bidding demonstrate this linkage, as do emails from the Centers for Disease Control and Prevention (CDC) and the Department of Homeland Security (DHS) to social media companies that only recently were made public.

Government-induced censorship is achieved through a wide variety of mechanisms, ranging from complete bans, temporary bans, “shadow bans” (where often neither the user nor his audience is notified of the suppression of speech), deboosting, de-platforming, de-monetizing, restricting access to content, requiring users to take down content, and imposing warning labels that require click-through to access content, among others. These methods also include temporary and permanent suspensions of disfavored speakers.

This sort of censorship, which strikes at the heart of what the First Amendment to the U.S. Constitution was designed to protect—free speech, especially political speech—constitutes unlawful government action. The federal government is deciding whose voices and ideas may be heard, and whose voices and ideas must be silenced. Moreover, this state action deprives Americans of their right to hear the views of those who are being silenced, a First Amendment corollary of the right to free speech. The government’s policy of coercing social-media companies to censor Plaintiffs’ viewpoints should be declared unlawful and halted immediately.

 

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CASE STATUS: Active

CASE START DATE: August 2, 2022

DECIDING COURT: U.S. District Court for the Western District of Louisiana

ORIGINAL COURT: U.S. District Court for the Western District of Louisiana

CASE DOCUMENTS

November 23, 2022 | Transcript of Videotaped Deposition of Dr. Anthony Fauci
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November 21, 2022 | Order of the U.S. Court of Appeals for the Fifth Circuit
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November 21, 2022 | Memorandum Order
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November 18, 2022 | Transcript of Motion Hearing Before the Honorable Ivan D. Davis United States Magistrate Judge
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November 2, 2022 | Memorandum Order
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October 21, 2022 | Memorandum Order Regarding Witness Depositions
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October 14, 2022 | Joint Statement Regarding Witness Depositions
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October 6, 2022 | Second Amended Complaint
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September 6, 2022 | Memorandum Ruling and Order on Discovery Disputes
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September 1, 2022 | The Parties’ Joint Statement on Discovery Disputes
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August 2, 2022 | First Amended Complaint in the U.S. District Court for the Western District of Louisiana, Monroe Division
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PRESS RELEASES

September 1, 2022 | NCLA Suit Uncovers Army of Federal Bureaucrats Coercing Social-Media Companies to Censor Speech

Washington, DC (September 1, 2022) – The New Civil Liberties Alliance, the Attorney General of Missouri, and the Attorney General of Louisiana, have filed a lawsuit that blows the lid off a sprawling federal censorship regime that will shock the conscience of Americans. The joint statement on discovery disputes in the lawsuit, State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al., reveals scores of federal officials across at least eleven federal agencies have secretly communicated with social-media platforms to censor and suppress private speech federal officials disfavor. This unlawful enterprise has been wildly successful.

Under the First Amendment, the federal government may not police private speech nor pick winners and losers in the marketplace of ideas. But that is precisely what the government has done—and is still doing—on a massive scale not previously divulged. Multiple agencies’ communications demonstrate that the federal government has exerted tremendous pressure on social-media companies—pressure to which companies have repeatedly bowed.

Discovery has unveiled an army of federal censorship bureaucrats, including officials arrayed at the White House, HHS, DHS, CISA, the CDC, NIAID, the Office of the Surgeon General, the Census Bureau, the FDA, the FBI, the State Department, the Treasury Department, and the U.S. Election Assistance Commission. Communications show these federal officials are fully aware that the pressure they exert is an effective and necessary way to induce social-media platforms to increase censorship. The head of the Cybersecurity and Infrastructure Security Agency even griped about the need to overcome social-media companies’ “hesitation” to work with the government.

These actions have precipitated an unprecedented rise in censorship and suppression of free speech—including core political speech—on social-media platforms. Many viewpoints and speakers have been unlawfully and unconstitutionally silenced or suppressed in the modern public square. This unlawful government interference violates the fundamental right of free speech for all Americans, whether or not they are on social media. More discovery is needed to uncover the full extent of this regime—i.e., the identities of other White House and agency officials involved and the nature and content of their communications with social-media companies.

The government has been uncooperative and has resisted complying with the discovery order every step of the way—especially with regard to Anthony Fauci’s communications. Defendants claim, for example, that White House communications are privileged, even though such privilege does not apply to external communications. The U.S. District Court for the Western District of Louisiana should overrule the government defendants’ objections and order them to supply this highly relevant, responsive, and probative information immediately.

NCLA released the following statements:

“If there was ever any doubt the federal government was behind censorship of Americans who dared to dissent from official Covid messaging, that doubt has been erased. The shocking extent of the government’s involvement in silencing Americans, through coercing social-media companies, has now been revealed. These bureaucrats continue to resist efforts to expose the degree of their unconstitutional actions every step of the way.”
— Jenin Younes, Litigation Counsel, NCLA

 “The incredible extent of government interference with the speech rights of Americans must be seen to be believed. Yet, even with all that this case has revealed, the government defendants are still resisting their obligation to disclose the names of all the public servants who were involved in this unlawful scheme.”
— 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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August 2, 2022 | NCLA Clients Join Missouri and Louisiana Suit Challenging Gov’t-Directed Social Media Censorship

Washington, DC (August 2, 2022) – Public statements, emails, and recent publicly released documents establish that the President of the United States and other senior officials in the Biden Administration violated the First Amendment by directing social-media companies to censor viewpoints that conflict with the government’s messaging on Covid-19. Today, the New Civil Liberties Alliance joined the lawsuit, State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al., representing renowned epidemiologists and co-authors of the Great Barrington Declaration, Drs. Jayanta Bhattacharya and Martin Kulldorff, as well as Dr. Aaron Kheriaty and Jill Hines. Social media platforms, acting at the federal government’s behest, repeatedly censored NCLA’s clients for articulating views on those platforms in opposition to government-approved views on Covid-19 restrictions.

This insidious censorship was the direct result of the federal government’s ongoing campaign to silence those who voice perspectives that deviate from those of the Biden Administration. Government officials’ public threats to punish social media companies that did not do their bidding demonstrate this linkage, as do emails from the Centers for Disease Control and Prevention (CDC) and the Department of Homeland Security (DHS) to social media companies that only recently were made public.

Government-induced censorship is achieved through a wide variety of mechanisms, ranging from complete bans, temporary bans, “shadow bans” (where often neither the user nor his audience is notified of the suppression of speech), deboosting, de-platforming, de-monetizing, restricting access to content, requiring users to take down content, and imposing warning labels that require click-through to access content, among others. These methods also include temporary and permanent suspensions of disfavored speakers.

This sort of censorship, which strikes at the heart of what the First Amendment to the U.S. Constitution was designed to protect—free speech, especially political speech—constitutes unlawful government action. The federal government is deciding whose voices and ideas may be heard, and whose voices and ideas must be silenced. Moreover, this state action deprives Americans of their right to hear the views of those who are being silenced, a First Amendment corollary of the right to free speech. The government’s policy of coercing social-media companies to censor Plaintiffs’ viewpoints should be declared unlawful and halted immediately.

NCLA released the following statements:

“The Biden Administration’s involvement in silencing the voices of those who have critiqued its responses to Covid-19, through pressure exerted on social media companies, is unprecedented in nature and degree. Two of the plaintiffs, Drs. Bhattacharya and Kulldorff, are among the world’s most renowned epidemiologists, and had crucial insights to share on the flawed reasoning and science underlying lockdowns and mask and vaccine mandates. Dr. Kheriaty, a professor of medical ethics, and Ms. Hines, a consumer and human rights advocate, also offered thoughtful, reasoned opposition to government-imposed Covid-19 restrictions. The government’s sweeping campaign to suppress the perspectives of the plaintiffs, and others like them, represents the most severe abrogation of the First Amendment in modern times, and we look forward to seeing this constitutional atrocity rectified in a court of law.”
Jenin Younes, Litigation Counsel, NCLA

“The government may not work through private entities to accomplish censorship that the First Amendment forbids the government from doing directly. Yet that is precisely what these federal defendants have been up to. NCLA is delighted to join forces with these state attorneys-general to reverse this constitutional outrage and restore free speech to the social media platforms that are today’s public square.”
Mark Chenoweth, President 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

 

OPINION

September 21, 2022 | The U.S. Government’s Vast New Privatized Censorship Regime

One warm weekend in October of 2020, three impeccably credentialed epidemiologists—Jayanta Bhattacharya, Sunetra Gupta, and Martin Kulldorff, of Stanford, Oxford, and Harvard Universities respectively—gathered with a few journalists, writers, and economists at an estate in the Berkshires where the American Institute for Economic Research had brought together critics of lockdowns and other COVID-related government restrictions. On Sunday morning shortly before the guests departed, the scientists encapsulated their views—that lockdowns do more harm than good, and that resources should be devoted to protecting the vulnerable rather than shutting society down—in a joint communique dubbed the “Great Barrington Declaration,” after the town in which it was written.

The declaration began circulating on social media and rapidly garnered signatures, including from other highly credentialed scientists. Most mainstream news outlets and the scientists they chose to quote denounced the declaration in no uncertain terms. When contacted by reporters, Drs. Anthony Fauci and Francis Collins of the NIH publicly and vociferously repudiated the “dangerous” declaration, smearing the scientists—all generally considered to be at the top of their fields—as “fringe epidemiologists.” Over the next several months, the three scientists faced a barrage of condemnation: They were called eugenicists and anti-vaxxers; it was falsely asserted that they were “Koch-funded” and that they had written the declaration for financial gain. Attacks on the Great Barrington signatories proliferated throughout social media and in the pages of The New York Times and Guardian.

Yet emails obtained pursuant to a FOIA request later revealed that these attacks were not the products of an independent objective news-gathering process of the type that publications like the Times and the Guardian still like to advertise. Rather, they were the fruits of an aggressive attempt to shape the news by the same government officials whose policies the epidemiologists had criticized. Emails between Fauci and Collins revealed that the two officials had worked together and with media outlets as various as Wired and The Nation to orchestrate a “takedown” of the declaration.

Nor did the targeting of the scientists stop with the bureaucrats they had implicitly criticized. Bhattacharya, Gupta, and Kulldorff soon learned that their declaration was being heavily censored on social media to prevent their scientific opinions from reaching the public. Kulldorff—then the most active of the three online—soon began to experience censorship of his own social media posts. For example, Twitter censored one of Kulldorff’s tweets asserting that: “Thinking that everyone must be vaccinated is as scientifically flawed as thinking that nobody should. COVID vaccines are important for older, higher-risk people and their caretakers. Those with prior natural infection do not need it. Not children.” Posts on Kulldorff’s Twitter and LinkedIn criticizing mask and vaccine mandates were labeled misleading or removed entirely. In March of 2021, YouTube took down a video depicting a roundtable discussion that Bhattacharya, Gupta, Kulldorff, and Dr. Scott Atlas had with Gov. Ron DeSantis of Florida, in which the participants critiqued mask and vaccine mandates.

Because of this censorship, Bhattacharya and Kulldorff are now plaintiffs in Missouri v. Biden, a case brought by the attorneys general of Missouri and Louisiana, as well as the New Civil Liberties Alliance (NCLA), which is representing them and two other individuals, Dr. Aaron Kheriaty and Jill Hines. The plaintiffs allege that the Biden administration and a number of federal agencies coerced social media platforms into censoring them and others for criticizing the government’s COVID policies. In doing so, the Biden administration and relevant agencies had turned any ostensible private action by the social media companies into state action, in violation of the First Amendment. As the Supreme Court has long recognized and Justice Thomas explained in a concurring opinion just last year, “[t]he government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly.”

Federal district courts have recently dismissed similar cases on the grounds that the plaintiffs could not prove state action. According to those judges, public admissions by then-White House press secretary Jennifer Psaki that the Biden administration was ordering social media companies to censor certain posts, as well as statements from Psaki, President Biden, Surgeon General Vivek Murthy, and DHS Secretary Alejandro Mayorkas threatening them with regulatory or other legal action if they declined to do so, still did not suffice to establish that the plaintiffs were censored on social media due to government action. Put another way, the judges declined to take the government at its word. But the Missouri judge reached a different conclusion, determining there was enough evidence in the record to infer that the government was involved in social media censorship, granting the plaintiffs’ request for discovery at the preliminary injunction stage.

The Missouri documents, along with some obtained through discovery in Berenson v. Twitter and a FOIA request by America First Legal, expose the extent of the administration’s appropriation of big tech to effect a vast and unprecedented regime of viewpoint-based censorship on the information that most Americans see, hear and otherwise consume. At least 11 federal agencies, and around 80 government officials, have been explicitly directing social media companies to take down posts and remove certain accounts that violate the government’s own preferences and guidelines for coverage on topics ranging from COVID restrictions, to the 2020 election, to the Hunter Biden laptop scandal.

Correspondence publicized in Missouri further corroborates the theory that the companies dramatically increased censorship under duress from the government, strengthening the First Amendment claim. For example, shortly after President Biden asserted in July of 2021 that Facebook (Meta) was “killing people” by permitting “misinformation” about COVID vaccines to percolate, an executive from the company contacted the surgeon general to appease the White House. In a text message to Murthy, the executive acknowledged that the “FB team” was “feeling a little aggrieved” as “it’s not great to be accused of killing people,” while he sought to “de-escalate and work together collaboratively.” These are not the words of a person who is acting freely; to the contrary, they denote the mindset of someone who considers himself subordinate to, and subject to punishment by, a superior. Another text, exchanged between Jen Easterly, director of the Cybersecurity and Infrastructure Security Agency (CISA), and another CISA employee who now works at Microsoft, reads: “Platforms have got to get more comfortable with gov’t. It’s really interesting how hesitant they remain.” This is another incontrovertible piece of evidence that social media companies are censoring content under duress from the government, and not due to their directors’ own ideas of the corporate or common good.

Further, emails expressly establish that the social media companies intensified censorship efforts and removed particular individuals from their platforms in response to the government’s demands. Just a week after President Biden accused social media companies of “killing people,” the Meta executive mentioned above wrote the surgeon general an email telling him, “I wanted to make sure you saw the steps we took just this past week to adjust policies on what we are removing with respect to misinformation, as well as steps taken further to address the ‘disinfo dozen’: we removed 17 additional Pages, Groups, and Instagram accounts tied to [them].” About a month later, the same executive informed Murthy that Meta intended to expand its COVID policies to “further reduce the spread of potentially harmful content” and that the company was “increasing the strength of our demotions for COVID and vaccine-related content.”

Alex Berenson, a former New York Times reporter and a prominent critic of government-imposed COVID restrictions, has publicized internal Twitter communications he obtained through discovery in his own lawsuit showing that high-ranking members of the Biden administration, including White House Senior COVID-19 Advisor Andrew Slavitt, had pushed Twitter to permanently suspend him from the platform. In messages from April 2021, a Twitter employee noted that a meeting with the White House had gone relatively well, though the company’s representatives had fielded “one really tough question about why Alex Berenson hasn’t been kicked off from the platform,” to which “mercifully we had answers” (emphasis added).

About two months later, days after Dr. Fauci publicly deemed Berenson a danger, and immediately following the president’s statement that social media companies were “killing people,” and despite assurances from high-ups at the company that his account was in no danger, Twitter permanently suspended Berenson’s account. If this does not qualify as government censorship of an individual based on official disapproval of his viewpoints, it would be difficult to say what might. Berenson was reinstated on Twitter in July 2022 as part of the settlement in his lawsuit.

In 1963, the Supreme Court, deciding Bantam Books v. Sullivan, held that “public officers’ thinly veiled threats to institute criminal proceedings against” booksellers who carried materials containing obscenity could constitute a First Amendment violation. The same reasoning should apply to the Biden administration campaign to pressure tech companies into enforcing its preferred viewpoints.

The question of how the Biden administration has succeeded in jawboning big tech into observing its strictures is not particularly difficult to answer. Tech companies, many of which hold monopoly positions in their markets, have long feared and resisted government regulation. Unquestionably—and as explicitly revealed by the text message exchanged between Murthy and the Twitter executive—the prospect of being held liable for COVID deaths is an alarming one. Just like the booksellers in Bantam, social media platforms undoubtedly “do not lightly disregard” such possible consequences, as Twitter’s use of the term “mercifully” indicates.

It remains to be seen whether Bhattacharya and Kulldorff will be able to show that Fauci and Collins explicitly ordered tech companies to censor them and their Great Barrington Declaration. More discovery lies ahead, from top White House officials including Dr. Fauci, that may yield evidence of even more direct involvement by the government in preventing Americans from hearing their views. But Bhattacharya, Kulldorff, and countless social media users have had their First Amendment rights violated nonetheless.

The government’s involvement in censorship of specific perspectives, and direct role in escalating such censorship, has what is known in First Amendment law as a chilling effect: Fearing the repercussions of articulating certain views, people self-censor by avoiding controversial topics. Countless Americans, including the Missouri plaintiffs, have attested that they do exactly that for fear of losing influential and sometimes lucrative social media accounts, which can contain and convey significant social and intellectual capital.

Moreover, the Supreme Court recognizes that a corollary of the First Amendment right to speak is the right to receive information because “the right to receive ideas follows ineluctably from the sender’s First Amendment right to send them.” All Americans have been deprived—by the United States government—of their First Amendment rights to hear the views of Alex Berenson, as well as Drs. Bhattacharya and Kulldorff, and myriad additional people, like the reporters who broke the Hunter Biden laptop story for the New York Post and found themselves denounced as agents of Russian disinformation, who have been censored by social media platforms at the urging of the U.S. government. That deprivation strangled public debate on multiple issues of undeniably public importance. It allowed Fauci, Collins, and various other government actors and agencies, to mislead the public into believing there was ever a scientific consensus on lockdowns, mask mandates, and vaccine mandates. It also arguably influenced the 2020 election.

The administration has achieved public acquiescence to its censorship activities by convincing many Americans that the dissemination of “misinformation” and “disinformation” on social media presents a grave threat to public safety and even national security. Over half a century ago, in his notorious concurrence in New York Times v. United States (in which the Nixon administration sought to prevent the newspaper from printing the Pentagon Papers) Justice Hugo Black rejected the view that the government may invoke such concepts to override the First Amendment: “[t]he word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment,” he wrote. Justice Black cited a 1937 opinion by Justice Charles Hughes explaining that this approach was woefully misguided: “The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press, and free assembly … that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.”

The Founders of our country understood that line-drawing becomes virtually impossible once censorship begins and that the personal views and biases of those doing the censoring will inevitably come into play. Moreover, they recognized that sunlight is the best disinfectant: The cure for bad speech is good speech. The cure for lies, truth. Silencing people does not mean problematic ideas disappear; it only drives their adherents into echo chambers. People who are booted off Twitter, for example, often turn to Gab and Gettr, where they are less likely to encounter challenges to patently false posts claiming, for example, that COVID vaccines are toxic.

Indeed, this case could not illustrate more clearly the First Amendment’s chief purpose, and why the framers of the Constitution did not create an exception for “misinformation.” Government actors are just as prone to bias, hubris, and error as the rest of us. Drs. Fauci and Collins, enamored of newfound fame and basking in self-righteousness, took it upon themselves to suppress debate about the most important subject of the day. Had Americans learned of the Great Barrington Declaration and been given the opportunity to contemplate its ideas, and had scientists like Bhattacharya, Gupta, and Kulldorff been permitted to speak freely, the history of the pandemic era may have unfolded with far less tragedy—and with far less damage to the institutions that are supposed to protect public health.