Judge limits Biden administration contact with social media firms
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By MATT BERG and JOSH GERSTEIN
07/04/2023 02:09 PM EDT
Updated: 07/04/2023 03:57 PM EDT
A federal judge in Louisiana ruled Tuesday that the Biden administration likely violated the First Amendment by censoring unfavorable views on social media over the course of the coronavirus pandemic, calling the efforts “Orwellian.”
U.S. District Court Judge Terry Doughty also issued a sweeping preliminary injunction barring numerous federal officials and agencies — including Surgeon General Vivek Murthy, Health and Human Services Secretary Xavier Becerra, White House press secretary Karine Jean-Pierre and all employees of the Justice Department and FBI — from having any contact with social media firms for the purpose of discouraging or removing First Amendment-protected speech.
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“During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth,’” Doughty wrote in his 155-page opinion, which was released as most federal courts were closed for the Independence Day holiday.
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https://www.politico.com/news/2023/...ms-00104656#:~:text=A federal judge in Louisi
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
STATE OF MISSOURI, ET AL. CASE NO. 3:22-CV-01213
VERSUS JUDGE TERRY A. DOUGHTY
JOSEPH R BIDEN JR., ET AL. MAG. JUDGE KAYLA D. MCCLUSKY
JUDGMENT
For the reasons set forth in the Memorandum Ruling on the Request for Preliminary
Injunction,
IT IS ORDERED, ADJUDGED, AND DECREED that Plaintiffs’ Motion for
Preliminary Injunction [Doc. No. 10] is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that: the DEPARTMENT OF HEALTH AND HUMAN
SERVICES (“HHS”) and THE NATIONAL INSTITUTE OF ALLERGY AND
INFECTIOUS DISEASES (“NIAID”), and specifically the following employees of the HHS and
NIAID: XAVIER BECERRA,1 Secretary of HHS; DR. HUGH AUCHINCLOSS, Director of
NIAID; YOLANDA BYRD, HHS Digital Engagement Team; CHRISTY CHOI, HHS Office of
Communications; ASHLEY MORSE, HHS Director of Digital Engagement; JOSHUA PECK,
HHS Deputy Assistant Secretary, Deputy Digital Director of HHS successor (formerly JANELL
MUHAMMED); along with their secretaries, directors, administrators and employees;
SURGEON GENERAL VIVEK H. MURTHY, KATHARINE DEALY, Chief Engagement
Officer for the Surgeon General, along with her secretaries, directors, administrators, and
employees; the CENTERS FOR DISEASE CONTROL AND PREVENTION (“CDC”), and
specifically the following employees: CAROL Y. CRAWFORD, Chief of the Digital Media
Branch of the CDC Division of Public Affairs; JAY DEMPSEY, Social-media Team Leader,
Digital Media Branch, CDC Division of Public Affairs; KATE GALATAS, CDC Deputy
Communications Director; UNITED STATES CENSUS BUREAU (“Census Bureau”), and
specifically the following employees: JENNIFER SHOPKORN, Census Bureau Senior Advisor
for Communications, Division Chief for the Communications Directorate, and Deputy Director of
the Census Bureau Office of Faith Based and Neighborhood Partnerships, along with their
secretaries, directors, administrators and employees; the FEDERAL BUREAU OF
INVESTIGATION (“FBI”), and specifically the following employees: LAURA DEHMLOW,
Section Chief, FBI Foreign Influence Task Force; ELVIS M. CHAN, Supervisory Special Agent
of Squad CY-1 in the FBI San Francisco Division; THE UNITED STATES DEPARTMENT
OF JUSTICE, along with their secretary, director, administrators, and employees; the following
members of the Executive Office of the President of the United States: White House Press
Secretary KARINE JEAN-PIERRE, Counsel to the President; STUART F. DELERY, White
House Partnerships Manager; AISHA SHAH, Special Assistant to the President; SARAH
BERAN, MINA HSIANG, Administrator of the United States Digital Service within the Office
of Management and Budget; ALI ZAIDI, White House National Climate Advisor; White House
Senior COVID-19 Advisor successor (formerly ANDREW SLAVITT); Deputy Assistant to the
President and Director of Digital Strategy successor (formerly ROB FLAHERTY); DORI
SALCIDO, White House COVID-19 Director of Strategic Communications and Engagement;
White House Digital Director for the COVID-19 Response Team successor (formerly CLARKE
HUMPHREY); Deputy Director of Strategic Communications and Engagement of the White
House COVID-19 Response Team successor (formerly BENJAMIN WAKANA); Deputy
Director for Strategic Communications and External Engagement for the White House COVID
19 Response Team successor (formerly SUBHAN CHEEMA); White House COVID-19 Supply
Coordinator successor (formerly TIMOTHY W. MANNING); Chief Medical Advisor to the
President, DR. HUGH AUCHINCLOSS, along with their directors, administrators and
employees; the CYBERSECURITY AND INFRASTRUCTURE SECURITY AGENCY
(“CISA”), and specifically the following employees: JEN EASTERLY, Director of CISA; KIM
WYMAN, Senior Cybersecurity Advisor and Senior Election Security Leader; LAUREN
PROTENTIS; GEOFFREY HALE; ALLISON SNELL; BRIAN SCULLY, Officials of CISA;
the UNITED STATES DEPARTMENT OF HOMELAND SECURITY (“DHS”), and
specifically the following employees: ALEJANDRO MAYORKAS, Secretary of DHS;
ROBERT SILVERS, Under-Secretary of the Office of Strategy, Policy and Plans; SAMANTHA
VINOGRAD, Senior Counselor for National Security in the Official of the Secretary for DHS,
along with their secretary, directors, administrators, and employees; the UNITED STATES
DEPARTMENT OF STATE (“State Department”), and specifically the following employees:
LEAH BRAY, Acting Coordinator of the State Department’s Global Engagement Center
(“GEC”); ALEX FRISBIE, State Department Senior Technical Advisor and member of the
Technology Engagement Team at the GEC; DANIEL KIMMAGE, Acting Coordinator of the
GEC, along with their secretary, directors, administrators, and employees ARE HEREBY
ENJOINED AND RESTRAINED from taking the following actions as to social-media
companies:
(1) meeting with social-media 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;
3
(2) specifically flagging content or posts on social-media platforms and/or forwarding
such to social-media companies urging, encouraging, pressuring, or inducing in any manner for
removal, deletion, suppression, or reduction of content containing protected free speech;
(3) urging, encouraging, pressuring, or inducing in any manner social-media
companies to change their guidelines for removing, deleting, suppressing, or reducing content
containing protected free speech;
(4) emailing, calling, sending letters, texting, or engaging in any communication of any
kind with social-media companies urging, encouraging, pressuring, or inducing in any manner for
removal, deletion, suppression, or reduction of content containing protected free speech;
(5) collaborating, coordinating, partnering, switchboarding, and/or jointly working
with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or
any like project or group for the purpose of urging, encouraging, pressuring, or inducing in any
manner removal, deletion, suppression, or reduction of content posted with social-media
companies containing protected free speech;
(6) threatening, pressuring, or coercing social-media companies in any manner to
remove, delete, suppress, or reduce posted content of postings containing protected free speech;
(7) taking any action such as urging, encouraging, pressuring, or inducing in any
manner social-media companies to remove, delete, suppress, or reduce posted content protected
by the Free Speech Clause of the First Amendment to the United States Constitution;
(8) following up with social-media companies to determine whether the social-media
companies removed, deleted, suppressed, or reduced previous social-media postings containing
protected free speech;
(9) requesting content reports from social-media companies detailing actions taken to
remove, delete, suppress, or reduce content containing protected free speech; and
(10) notifying social-media companies to Be on The Lookout (“BOLO”) for postings
containing protected free speech.
This Preliminary Injunction precludes said named Defendants, their agents, officers, employees,
contractors, and all acting in concert with them from the aforementioned conduct. This Preliminary
Injunction also precludes said named Defendants, their agents, officers, employees, and
contractors from acting in concert with others who are engaged in said conduct.
IT IS FURTHER ORDERED that the following actions are NOT prohibited by this
Preliminary Injunction:
(1) informing social-media companies of postings involving criminal activity or
criminal conspiracies;
(2) contacting and/or notifying social-media companies of national security threats,
extortion, or other threats posted on its platform;
(3) contacting and/or notifying social-media companies about criminal efforts to
suppress voting, to provide illegal campaign contributions, of cyber-attacks against election
infrastructure, or foreign attempts to influence elections;
(4) informing social-media companies of threats that threaten the public safety or
security of the United States;
(5) exercising permissible public government speech promoting government policies
or views on matters of public concern;
(6) informing social-media companies of postings intending to mislead voters about
voting requirements and procedures;
(7) informing or communicating with social-media companies in an effort to detect,
prevent, or mitigate malicious cyber activity;
(8) communicating with social-media companies about deleting, removing,
suppressing, or reducing posts on social-media platforms that are not protected free speech by the
Free Speech Clause in the First Amendment to the United States Constitution.
IT IS FURTHER ORDERED that no security is required to be posted by Plaintiffs under
Federal Rule of Civil Procedure 65.
IT IS FURTHER ORDERED that this Preliminary Injunction Order shall remain in effect
pending the final resolution of this case or until further orders issue from this Court, the United
States Court of Appeals for the Fifth Circuit, or the Supreme Court of the United States.
IT IS FURTHER ORDERD that the Motion for Preliminary Injunction [Doc. No. 10] is
DENIED as to the following Defendants: U.S. Food and Drug Administration; U. S. Department
of Treasury; U.S. Election Assistance Commission; U. S. Department of Commerce and
employees Erica Jefferson, Michael Murray, Wally Adeyemo, Steven Frid, Brad Kimberly, and
Kristen Muthig; and Disinformation Governance Board (“DGB”) and its Director Nina Jankowicz.
IT IS FURTHER ORDERED that no evidentiary hearing is required at this time.
IT IS FURTHER ORDERED that Plaintiffs’ request for certification of this proceeding
as a class action pursuant to Fed. R. Civ. P. Article 23 (b)(2) is DENIED.
THUS, DONE AND SIGNED IN MONROE, LOUISIANA, this 4
th day of July 2023.
___________________________________
TERRY A. DOUGHTY
UNITED STATES DISTRICT JUDGE
https://www.politico.com/f/?id=00000189-2209-d8dd-a1ed-7a2de8d80000
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
STATE OF MISSOURI, ET AL. CASE NO. 3:22-CV-01213
VERSUS JUDGE TERRY A. DOUGHTY
JOSEPH R. BIDEN JR., ET AL. MAG. JUDGE KAYLA D. MCCLUSKY
MEMORANDUM RULING ON REQUEST
FOR PRELIMINARY INJUNCTION
At issue before the Court is a Motion for Preliminary Injunction [Doc. No. 10] filed by
Plaintiffs.1 The Defendants2
oppose the Motion [Doc. No. 266]. Plaintiffs have filed a reply to the
opposition [Doc. No. 276]. The Court heard oral arguments on this Motion on May 26, 2023 [Doc.
No. 288]. Amicus Curiae briefs have been filed in this proceeding on behalf of Alliance Defending
Freedom,3
the Buckeye Institute,4
and Children’s Health Defense.5
1 Plaintiffs consist of the State of Missouri, the State of Louisiana, Dr. Aaron Kheriaty (“Kheriaty”), Dr. Martin
Kulldorff (“Kulldorff”), Jim Hoft (“Hoft”), Dr. Jayanta Bhattacharya (“Bhattacharya”), and Jill Hines (“Hines”).
2 Defendants consist of President Joseph R Biden (“President Biden”), Jr, Karine Jean-Pierre (“Jean-Pierre”), Vivek
H Murthy (“Murthy”), Xavier Becerra (“Becerra”), Dept of Health & Human Services (“HHS”), Dr. Hugh
Auchincloss (“Auchincloss”), National Institute of Allergy & Infectious Diseases (“NIAID”), Centers for Disease
Control & Prevention (“CDC”), Alejandro Mayorkas (“Mayorkas”), Dept of Homeland Security (“DHS”), Jen
Easterly (“Easterly”), Cybersecurity & Infrastructure Security Agency (“CISA”), Carol Crawford (“Crawford”),
United States Census Bureau (“Census Bureau”), U. S. Dept of Commerce (“Commerce”), Robert Silvers (“Silvers”),
Samantha Vinograd (“Vinograd”), Ali Zaidi (“Zaidi”), Rob Flaherty (“Flaherty”), Dori Salcido (“Salcido”), Stuart F.
Delery (“Delery”), Aisha Shah (“Shah”), Sarah Beran (“Beran”), Mina Hsiang (“Hsiang”), U. S. Dept of Justice
(“DOJ”), Federal Bureau of Investigation (“FBI”), Laura Dehmlow (“Dehmlow”), Elvis M. Chan (“Chan”), Jay
Dempsey (“Dempsey”), Kate Galatas (“Galatas”), Katharine Dealy (“Dealy”), Yolanda Byrd (“Byrd”), Christy Choi
(“Choi”), Ashley Morse (“Morse”), Joshua Peck (“Peck”), Kym Wyman (“Wyman”), Lauren Protentis (“Protentis”),
Geoffrey Hale (“Hale”), Allison Snell (“Snell”), Brian Scully (“Scully”), Jennifer Shopkorn (“Shopkorn”), U. S. Food
& Drug Administration (“FDA”), Erica Jefferson (“Jefferson”), Michael Murray (“Murray”), Brad Kimberly
(“Kimberly”), U. S. Dept of State (“State”), Leah Bray (“Bray”), Alexis Frisbie (“Frisbie”), Daniel Kimmage
(“Kimmage”), U. S. Dept of Treasury (“Treasury”), Wally Adeyemo (“Adeyemo”), U. S. Election Assistance
Commission (“EAC”), Steven Frid (“Frid”), and Kristen Muthig (“Muthig”).
3
[Doc. No. 252]
4
[Doc. No. 256]
5
[Doc. No. 262]
Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 1 of 155 PageID #:
26792
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I. INTRODUCTION
I may disapprove of what you say, but I would defend to the death
your right to say it.
Evelyn Beatrice Hill, 1906, The Friends of Voltaire
This case is about the Free Speech Clause in the First Amendment to the United States
Constitution. The explosion of social-media platforms has resulted in unique free speech issues—
this is especially true in light of the COVID-19 pandemic. If the allegations made by Plaintiffs are
true, the present case arguably involves the most massive attack against free speech in United
States’ history. In their attempts to suppress alleged disinformation, the Federal Government, and
particularly the Defendants named here, are alleged to have blatantly ignored the First
Amendment’s right to free speech.
Although the censorship alleged in this case almost exclusively targeted conservative
speech, the issues raised herein go beyond party lines. The right to free speech is not a member of
any political party and does not hold any political ideology. It is the purpose of the Free Speech
Clause of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will
ultimately prevail, rather than to countenance monopolization of the market, whether it be by
government itself or private licensee. Red Lion Broadcasting Co., v. F.C.C., 89 S. Ct. 1794, 1806
(1969).
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https://storage.courtlistener.com/recap/gov.uscourts.lawd.189520/gov.uscourts.lawd.189520.293.0.pdf
