Feb 182024

Hooray!  for the CHD!  An important win.

A federal judge on Wednesday issued a preliminary injunction prohibiting key Biden administration officials and agencies from coercing or significantly encouraging social media platforms to suppress or censor online content containing protected free speech. However, he also stayed the injunction until the U.S. Supreme Court rules on a similar injunction in Murthy v. Missouri, a related censorship case.

A federal judge on Wednesday handed Robert F. Kennedy Jr. and Children’s Health Defense (CHD) a partial win in their landmark censorship case alleging the Biden administration colluded with social media platforms to unlawfully censor online content.

Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana issued a preliminary injunction prohibiting key Biden administration officials and agencies from coercing or significantly encouraging social media platforms to suppress or censor online content.

However, Judge Doughty simultaneously issued a stay on the injunction until 10 days after the U.S. Supreme Court rules on a similar case, Murthy v. Missouri.

That case, filed in May 2022 by the attorneys general of Missouri and Louisiana and several individual plaintiffs, was originally filed as Missouri v. Biden.

The Supreme Court is set to hear arguments on March 18 on a preliminary injunction in Murthy v. Missouri.

Mary Holland, CHD president, told The Defender that the Valentine’s Day ruling was “a welcome Valentine to the Kennedy plaintiffs,” and “an important victory for the U.S. Constitution.”

She added:

“In a thorough decision, Judge Doughty reasoned that the plaintiffs do have ‘standing’ or the right to sue and be heard; that the defendants have engaged in coercion or significant encouragement to censorship and joint action with social media platforms; and that the court is required to issue the preliminary injunction.

“Further, because it is well-established that violations of free speech rights constitute irreparable injury, the Court acted even before an ultimate decision from the Supreme Court in Murthy v. Missouri. Judge Doughty wrote: ‘This Court … finds the balance of equities and the public interest strongly favors the issue of a preliminary injunction.’

“No doubt the Supreme Court will take account of this ruling as it hears oral arguments in Murthy v. Missouri on March 18.”

Wednesday’s ruling stems from a class-action lawsuit filed in March 2023 by Kennedy, now CHD chairman on leave, CHD and private citizen Connie Sampognaro against President Joe Biden, Dr. Anthony Fauci and other top administration officials and federal agencies.

The suit was filed on behalf of the more than 80% of Americans who access news through social media.

Judge Doughty consolidated Kennedy v. Biden and Murthy v. Biden in July 2023. Both cases were being argued in his court and had the same defendants and many common legal and factual issues.

Although the cases were consolidated, Doughty ruled that the District Court continues to have jurisdiction over Kennedy and CHD’s separate motion for a preliminary injunction, underscoring the fact that a delayed ruling would delay Kennedy from vindicating his claims.

The U.S. Department of Justice did not respond to The Defender’s request for comment.

In his 24-page ruling, Judge Doughty found that several of the defendants in the Kennedy et al. v. Biden lawsuit were violating the plaintiffs’ free speech rights under the First Amendment, causing irreparable harm. He ordered them to cease these violations.

The court recognized that the “right of free speech is a fundamental constitutional right that is vital to the freedom of our nation, and the Kennedy plaintiffs have produced evidence of a massive effort by defendants, from the White House to federal agencies, to suppress speech based on its content.”

Plaintiffs alleged Biden administration officials “waged a systematic, concerted campaign” to compel the nation’s three largest social media companies to censor constitutionally protected speech.

The government, the lawsuit alleges, pressured social media platforms to directly suppress or censor Kennedy and CHD from major platforms and to do the same to content containing views about COVID-19 and other issues that contradicted the government narrative.

Kennedy and CHD argued the court should rule on the preliminary injunction now, because the case is different from Murthy v. Missouri, asks for a more specific injunction and because the defendants singled out Kennedy, who is a U.S. presidential candidate, for censorship.

In determining the merits of the plaintiffs’ motion, Doughty first had to rule on whether the plaintiffs had standing. On that issue, “the court provided strong concrete examples of government coercion or encouragement to censor, particularly with respect to Mr. Kennedy and CHD,” said Kim Mack Rosenberg, CHD general counsel.

Doughty cited evidence that defendants labeled Kennedy as part of the “Disinformation Dozen” who were eventually censored from social media and that some of CHD’s social media posts were also censored.

He also noted that the Centers for Disease Control and Prevention (CDC) worked with the Virality Project to reduce or delete social media posts by people and organizations they believed to be spreading “misinformation” about COVID-19.

The Virality Project explicitly listed Kennedy and CHD in the fifth and second place as the highest performing weekly social-media engagement incidents, he wrote.

“This evidence also was key in the Court’s decision that plaintiffs met all the requirements to support issuing the injunction and that the balance of equities favored plaintiffs here,” Mack Rosenberg added.

Doughty also found the plaintiffs are likely to succeed on the merits of their claim, writing:

“As in Missouri v. Biden, the White House Defendants and the Surgeon General Defendants both coerced and significantly encouraged social-media platforms to suppress protected free speech.

“This Court further finds the CDC Defendants, the CISA [Cybersecurity and Infrastructure Security Agency] Defendants and the FBI Defendants significantly encouraged social-media platforms to suppress protected free speech.”

Defendants ‘likely’ to use their power to suppress alternative views in the future 

The defendants have argued that the actions at stake occurred in the past and cannot be remedied by issuing an injunction prohibiting future actions and that there is no “imminent harm” to the defendants because the COVID-19 pandemic and the election where the alleged conduct occurred are in the past.

However, Doughty ruled that the alleged past actions also indicate there is a substantial risk of likely future harm.

“Defendants apparently continue to have meetings with social-media companies and other contacts,” he wrote, adding:

“Although the COVID-19 pandemic is no longer an emergency, it is likely that in the event of any other real or perceived emergency event, the Defendants likely would once again use their power over social-media companies to suppress alternative views.

“And it is certainly likely that Defendants could use their power over millions of people to suppress alternative views or moderate content they do not agree with in the upcoming 2024 national election.”

Although Doughty granted a substantial part of Kennedy et al.’s motion for a preliminary injunction against the White House, the surgeon general, the CDC, FBI and the CISA, he also denied the request for an injunction against several other agencies.

The injunction excluded the U.S. Department of State, the National Institute of Allergy and Infectious Diseases, the U.S. Food and Drug Administration, the U.S. Department of the Treasury, the U.S. Election Assistance Commission, and the U.S. Department of Commerce, who were also included in the plaintiffs’ request.

The Defender on occasion posts content related to Children’s Health Defense’s nonprofit mission that features Mr. Kennedy’s views on the issues CHD and The Defender regularly cover. In keeping with Federal Election Commission rules, this content does not represent an endorsement of Mr. Kennedy who is on leave from CHD and is running for president of the U.S. as an independent candidate.

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