GOP AGs Eye Class Allegations vs. White House for Social Media ‘Censorship’

The Biden administration’s collusion with Big Tech to censor social media content (see 2301090030) “involves some of the most egregious First Amendment violations in American history,” said the Republican Louisiana and Missouri attorneys general in their supplemental brief Tuesday (docket 3:22-cv-01213) in U.S. District Court for Western Louisiana in support of their motion for a preliminary injunction. The AGs soon will file motion pursuing class allegations against the White House, it said.

Officials from the White House and multiple federal agencies “use pressure, threats, coercion, cajoling, collusion, demands, and trickery and deceit to induce social-media platforms to censor speakers and viewpoints on social media that the federal officials disfavor,” said the brief. The proof of the “sprawling” federal wrongdoing is “voluminous and overwhelming,” it said. DOJ is seeking dismissal of the lawsuit for lack of subject-matter jurisdiction and failure to state a claim (see 2302090068).

White House officials “have engaged in a relentless pressure campaign,” publicly and privately, “to coerce platforms into censoring disfavored viewpoints on social media,” said the brief. Surgeon General Vivek Murthy and his staff “coordinate closely with the White House in this pressure campaign,” it said. The Centers for Disease Control and Prevention “flags specific social-media posts for censorship,” and is “the ultimate fact-checker with final authority to dictate what speech will be removed from social media,” it said.

The federal agencies “collude with social-media platforms in hundreds of meetings about misinformation, and those agencies repeatedly flag huge quantities of First Amendment-protected speech to platforms for censorship,” said the brief. Their “gargantuan” federal “censorship enterprise” is highly effective at stifling “debate and criticism of government policy on social media about some of the most pressing issues of our time,” it said. Its activities are “flagrantly unconstitutional,” and the court should enter a preliminary injunction “putting a stop to these egregious violations of the First Amendment,” it said.

The plaintiff AGs are likely to succeed on the merits of their First Amendment and their Administrative Procedure Act and ultra vires claims, and thus deserve a preliminary injunction, said the brief. When the government “induces or jointly participates in” conduct that the Constitution prohibits the government from performing, “the government is liable as if it had performed the conduct itself,” it said. “Courts have articulated multiple, overlapping tests for when the government induces or jointly participates in private conduct.”

The defendants, including President Joe Biden, are liable for “viewpoint-based censorship” by social media companies for at least “five independent reasons,” said the brief. They're inducing the censorship through “significant encouragement,” coercion, deception, conspiracy or collusion and “pervasive entwinement in the censorship process,” it said: “The evidence in this case satisfies all five of these standards.”

The individual plaintiffs “assert violations of their First Amendment right to speak and listen freely without government interference,” said the brief. A personal loss of First Amendment rights is unquestionably “an injury that supports standing,” it said.

The court should grant “classwide preliminary injunctive relief” to make a preliminary injunction “as fully effective as possible,” said the brief. The plaintiffs to that end will soon file a motion for leave to amend their complaint “to include class allegations,” plus a motion to certify an injunctive class once expedited injunction-related discovery is complete, it said. Rule 23(b)(2) governing class certification and classwide preliminary injunctive relief “was designed precisely for cases like this, where a plaintiff alleges large-scale civil-rights violations targeting entire classes of people,” it said.