GOP AGs Can’t Justify Their 350-Page Social Media ‘Fact Memo,’ Says DOJ

The Republican attorneys general of Louisiana and Missouri don’t dispute they didn’t seek, and the court didn’t provide, authorization to file their 350-page “fact memo” in support of their motion for a preliminary injunction to block the Biden administration’s alleged collusion with Big Tech to censor right-leaning social media content in violation of the First Amendment (see 2303140027). So said DOJ’s reply memorandum Tuesday (docket 3:22-cv-01213) in U.S. District Court for Western Louisiana in Monroe in support of its motion to strike the fact memo.

The GOP AGs also don’t dispute they never notified DOJ in advance of their intention to file proposed findings of fact with their supplemental brief, said the government. The AGs also don’t dispute that addressing their 350-page fact memo in 30 days would be “extremely burdensome,” it said. They instead argue DOJ “can absorb this burden because it has thousands of attorneys,” it said.

The AGs wrongly assume that DOJ attorneys “who have no knowledge or involvement in this case can freely abandon their pre-existing matters before other judges, become familiar with this case, and help complete a fact-intensive assignment within 30 days,” said the government. The AGs, “in short,” say little about the DOJ’s “multiple arguments” in its motion to strike, it said. U.S. District Judge Terry Doughty, a Donald Trump appointee, imposed the expedited briefing schedule in light of DOJ’s request for a decision by Thursday on its motion to strike.

The AGs wrongly argue the fact memo, and its “unusual length,” are justified because all the factual assertions contained in it “are accurate and establish a First Amendment claim,” said DOJ. But the AGs can’t justify their “unauthorized” fact memo “by presuming that all of their factual and legal assertions are true,” it said.

The “whole point” of the motion to strike “is to ensure a fair and efficient process” of litigating whether the AGs’ factual assertions “are justified and support a First Amendment claim,” said DOJ. Their decision to “unilaterally spring” on the government more than 400 pages of briefing, for a response due in 30 days, has “significantly prejudiced” DOJ’s ability to demonstrate why the AGs’ factual assertions are “largely hyperbolic,” and don’t support a “valid” First Amendment claim, it said.

The AGs justify their fact memo by arguing there’s “a lot of evidence” they need to cover, said DOJ. But they could have asked for a “larger page extension” in their supplemental brief, it said. If it were granted, the court “could have set an appropriate schedule commensurate with the length of the briefs,” it said. The AGs can’t “flout” the court’s authority “by determining for themselves the rules by which they will litigate their motion,” it said.

The fact memo isn’t authorized under the local rules or the court’s orders, and it imposes “an improper burden on the government, said DOJ. The court should accordingly strike the fact memo in full, “or at a minimum, impose some other measure to address the improper burdens imposed” on the government, it said.