Texas AG, Media Outlets Press Case for Expedited Discovery vs. State Department

The arguments in the State Department’s opposition to expedited preliminary injunction discovery in the First Amendment case brought by Texas Attorney General Ken Paxton (R) and the right-leaning Daily Wire and Federalist media outlets lack merit, said the plaintiffs’ reply Wednesday (docket 6:23-cv-00609) in U.S. District Court for Eastern Texas in Tyler in support of that expedited discovery.

The plaintiffs seek the injunction to block Secretary of State Antony Blinken and five of his department colleagues from promoting or using censorship technology they say targets Americans’ speech or the American press (see 2402080044). They argue good cause exists for expedited injunction discovery to understand how the government’s current censorship scheme operates, “something the State Department is concealing even from Congress.”

The complaint and the preliminary injunction motion both make clear that the plaintiffs seek only to enjoin the defendants from engaging in specific activities that target the lawful speech of the American press and Americans, said the reply. It should be “uncontroversial” that the State Department can’t target Americans’ speech because its authority is limited to foreign affairs, it said. The complaint is premised on the defendants’ “still-ongoing censorship scheme” that suppresses disfavored domestic speech by funding the infrastructure, development, and marketing and promotion of censorship technology and private censorship enterprises, it said.

The government’s main argument is that there’s no basis for expedited discovery because the complaint fails to demonstrate subject-matter jurisdiction and proper venue, said the reply. In essence, the defendants are asking the court to stay the proceedings, it said. The defendants even cite decisions involving stays of discovery -- none of which involved pending preliminary injunction motions, it said.

The court has already considered and rejected the government’s motion for a general stay, which presented the same venue and standing arguments, said the reply. The defendants aren’t entitled “to a second bite of the apple,” it said. The court should consider only “whether good cause exists to order expedited discovery,” it said.

Should the court consider the government’s “rehashing” of its motion to stay, “it should reject the government’s arguments,” said the reply. The 5th U.S. Circuit Court of Appeals has upheld the constitutionality of HB-20, the Texas social media content moderation law, it said. To accept the defendants’ argument that there’s no imminent harm to Texas’ sovereign interests would require the court to “inappropriately speculate” that the U.S. Supreme Court “will reverse that decision,” it said. SCOTUS held oral argument Monday on NetChoice’s First Amendment challenge to HB-20 (see 2402260051).

HB-20’s private enforcement provisions “have never been enjoined,” said the reply. Contrary to the defendants’ “cramped view” of a state’s sovereign interests, Texas’ interest in passing and enforcing laws “extends beyond bringing enforcement actions to include efforts by the state to maintain compliance with its laws,” it said.

Preventing viewpoint discrimination by common carriers in violation of HB-20 in the first instance -- something the defendants’ ultra vires censorship scheme causes -- is “squarely within” Texas’ sovereign interests in maintaining compliance with its laws, said the reply. Texas thus has standing “to challenge the State Department’s ultra vires actions,” and venue is proper in both Texas and the Eastern District of Texas, it said.