Plaintiffs Urge Denial of State Department’s Motion to Dismiss Their Censorship Suit

The U.S. District Court for Eastern Texas in Tyler should deny the State Department’s March 25 motion to dismiss the press censorship complaint brought by Texas Attorney General Ken Paxton (R) and the Daily Wire and Federalist media outlets, said the plaintiffs’ opposition Wednesday (docket 6:23-cv-00609).

Paxton and the media outlets allege that the State Department, through its Global Engagement Center, "is actively intervening" to render "disfavored" press outlets unprofitable by funding the marketing and promotion of "censorship technology and private censorship enterprises to covertly suppress speech of a segment of the American press" (see 2312060043). Named as defendants are Secretary of State Antony Blinken and five other State Department officials.

The defendants’ motion to dismiss contends that the plaintiffs’ claims of injury suffer from a “central Article III problem.” It further contends that the plaintiffs depend entirely on “a sequence of independent actions” by private third parties that aren’t before the court (see 2403260023).

The defendants have framed their motion to dismiss as “an attack on jurisdiction,” premising that argument on the plaintiffs’ purported lack of Article III standing, said the plaintiffs’ opposition. But the defendants have only challenged Texas’ standing on its face, while they have challenged the media plaintiffs’ standing “in both a facial and factual attack,” it said.

A factual attack, which consists of a Rule 12(b)(1) motion accompanied by supporting evidence, “differs from a facial attack in that it challenges the jurisdictional facts alleged in the complaint,” said the plaintiffs’ opposition. When ruling on a factual attack, a plaintiff must prove through some evidentiary method, by a preponderance of the evidence, that the court has subject-matter jurisdiction, it said.

If, however, defendants challenge facts that go to the merits rather than jurisdiction, they raise a factual merits defense, not a factual attack on jurisdiction, said the opposition. A factual merits defense isn’t a response cognizable on a motion to dismiss where allegations in the plaintiff’s complaint must be taken as true, it said: “Such is the case here.” The court should deny the motion to dismiss, it said.

The court alternatively should deny the motion because the plaintiffs have demonstrated that the court has subject-matter jurisdiction by rebutting the defendants’ factual attack through a preponderance of the evidence, said the opposition. The plaintiffs’ extensive evidence establishes that the defendants’ “arbitrary, illegal, and unconstitutional censorship scheme” inflicts a past and “an ongoing, prospective, and imminent injury” on the plaintiffs, it said.

The injury to the media plaintiffs’ circulation and revenue streams is “traceable” to the defendants’ “illegal activities,” said the opposition. It’s also redressable by an order enjoining the defendants “from continuing to fund the research, testing, development, and promotion of tools and technologies that target the domestic press and speech,” it said.