Proposed Class Definitions 'Vague,' Say Biden Administration Defendants in Free Speech Suits

Plaintiffs “failed to establish a single adequate, common question of fact or law applicable to each member of either putative class,” said defendants in a Tuesday response (docket 22-cv-01213) to plaintiffs’ motion for class certification and for leave to file their third amended complaint in Missouri v. Biden. The court should deny both motions, they said.

Plaintiffs' proposed class definitions are “insufficiently precise,” said the filing in U.S. District Court for Western Louisiana in Monroe in the freedom of speech lawsuit brought by Missouri, Louisiana and others alleging 67 government agencies and officials colluded with Big Tech to censor social media information. Content moderation decisions by social media companies are “state action” that violates the First Amendment, plaintiffs allege, “and now they move to certify two broad, vague classes pursuant to Rule 23(b)(2),” said the response.

A class may be certified only if given a precise definition, said the response, calling the proposed classes “impermissibly vague.” The first proposed class refers to content moderation decisions made after the speech at issue was “flagged” by a defendant “for suppression,” said the response, saying plaintiffs didn't define either of the quoted terms. It's unclear if a defendant explicitly asked the social media company to take action against a post about vaccine misinformation, for example, or whether it's sufficient that a defendant “generally stated that the post was concerning.”

The second proposed class refers to content moderation decisions made pursuant to social media policies or practices that were “induced” by defendants, but plaintiffs don’t explain what it means to “induce” a policy or practice, said the response. “It is unclear whether this refers to any action by a Defendant that caused a social media company to adopt the policy or practice at issue, regardless of what the Defendant intended, or whether the Defendant must have requested that the company adopt that particular policy or practice.”

Even if plaintiffs could overcome vague class definitions, the court could not ascertain the members of each class, and that would prevent it from providing relief for class members, since courts can issue relief only for established injuries, the response said. The court could issue relief only to identified class members who submit evidence demonstrating injuries caused by a defendant, but plaintiffs offer no feasible method for identifying injured persons, it said.

Plaintiffs can’t satisfy the commonality requirement for either proposed class, said the response, saying for each proposed class, different putative members have allegedly been affected in different ways by different defendants, precluding any common question of fact that would be central to claims of all members, the response said. The court can’t determine, “in one fell swoop, whether any or all Defendants are responsible for all alleged content moderation decisions encompassed by either broad, proposed class,” it said.

Plaintiffs can’t satisfy the Rule 23(b)(2) requirement that every class member be entitled to the same injunction since different members of each proposed class will allegedly be harmed in different ways by different defendants, said the response. “That is precisely why Plaintiffs are moving for class certification: to secure broader relief by aggregating the various injunctions to which different class members would allegedly be entitled,” defendants said, calling it “an improper use” of the rule.

The court should deny plaintiffs’ “belated” motion for leave to amend their complaint for a third time because it seeks only to add class allegations, but neither proposed class meets applicable requirements, said the response. “Plaintiffs’ attempt to justify their delay in seeking class certification based on their claim that they only recently discovered the magnitude of those alleged efforts by Defendants lacks merit,” it said. Class allegations should have been included in the original or one of the two amended complaints, said the filing.