Social Media Censorship Unconstitutional Even Without 'Coercion': RFK Jr. Group

U.S. District Judge Terry Doughty for Western Louisiana in Monroe granted Children’s Health Defense's (CHD) unopposed motion Tuesday (docket 3:22-cv-01213) for leave to file an amicus brief in support of plaintiffs Missouri and Louisiana’s motion for a preliminary injunction in a freedom of speech lawsuit against President Joe Biden and some 60 individuals and government agencies.

CHD Chairman Robert F. Kennedy Jr. filed this month to run for president in 2024 as a Democrat. Biden announced his bid for reelection Tuesday.

CHD’s brief offers the court a “narrower preliminary injunction” designed to anticipate and avoid certain defense arguments, and seeks to “clarify the applicable law, showing that state action doctrine is not dispositive in this case,” said CHD’s notice. “Under controlling Supreme Court authority, the Federal Government’s attempts to induce social media censorship of protected speech are unconstitutional even when they do not amount to coercion or joint action or meet any other state action test,” the notice said.

Kennedy and CHD moved to consolidate (see 2304050007) their March 24 class action against Biden and numerous government agencies and individuals with Missouri v. Biden, saying the defendants and facts are “substantially identical.” Kennedy called the case a “First Amendment challenge to the massive, systematic efforts by the federal government to induce social media companies to censor constitutionally protected speech.”

The “only difference” between the two cases, said CHD, are the identity of the plaintiffs and that the Kennedy case is a class action seeking declaratory and injunctive relief, not damages, said its March memorandum in support of consolidation. It noted then that plaintiffs in Missouri v. Biden recently moved to amend their complaint to add class claims, too, “creating yet a further commonality between the two cases.”

Doughty deferred a ruling on the motion to consolidate (docket 3:23-cv-00381) until a resolution is rendered on the pending motion for preliminary injunction in Missouri v. Biden (see 2304060019). The court is also waiting for resolution on a pending motion for leave to amend the complaint to add class allegations and for class certification.

The judge cited the case's procedural status and the “voluminous filings already made in relation to the pending motions,” saying it wouldn't be appropriate “at this time to consolidate these matters." He noted the two pending motions before the court aren't fully briefed. The court agreed with defendants that allowing the Kennedy plaintiffs to submit a separate motion for preliminary injunction, consolidation of that motion with the Missouri plaintiffs’ motion, and submission by the Kennedy plaintiffs of a motion for certification of their putative class before the court hearing the Missouri plaintiffs’ outstanding motions would place a “substantial burden on both the court and defendants.”