A Louisiana district court ruled late Tuesday that plaintiffs Robert F. Kennedy Jr. and Children’s Health Defense (CHD) have the legal right to sue the Biden administration for pressuring tech giants to censor their social media posts.

The judgment came less than a month after a federal appeals court declined to rule on a preliminary injunction prohibiting the administration from coordinating with social media companies until the district court decided the plaintiffs’ standing.

Standing is the legal doctrine that requires plaintiffs to show they have suffered direct and concrete injuries and that those injuries could be resolved in court in order to sue.

Commenting on Tuesday’s ruling in Kennedy v. Biden, Kim Mack Rosenberg, CHD general counsel, said that the U.S. District Court for the Western District of Louisiana “reached what we believe is the correct conclusion with respect to standing for CHD and Mr. Kennedy.”

Perhaps even “more importantly,” she told The Defender:

“Judge Terry Doughty carefully and clearly analyzed the law and facts and applied the framework from the U.S. Supreme Court’s recent decision in Murthy v. Missouri regarding standing. The court also firmly found in plaintiffs’ favor that plaintiffs had not waived — and indeed had affirmatively raised — direct censorship claims in addition to listener claims.”

Facebook admitted suppressing truthful CHD social media posts

In his decision, Doughty summarized the evidence, outlining a series of specific instances where Kennedy and CHD were censored.

He also reviewed the three requirements for “standing,” which are that a plaintiff must show that they suffered an injury, that the injury is traceable to the defendant’s actions and that it can be redressed through a favorable decision.

CHD CEO Mary Holland said Doughty found that the government’s conduct is traceable to direct statements and instructions to social media platforms, including Facebook, Instagram and YouTube.

“Further, the judge found that a preliminary injunction, which mandates that the government stop censoring plaintiffs through social media, would redress their injuries,” Holland said.

Doughty wrote that Kennedy and CHD “were in positions contrary to Government positions on COVID-19, including mask mandates, vaccine mandates, vaccine injuries, lockdowns, etc.,” that Kennedy was identified by the Center for Countering Digital Hate as part of the so-called “Disinformation Dozen,” and that CHD was named as a tool for spreading “anti-vaccine messages.”

Doughty also reviewed a series of meetings and emails between the White House and Twitter and Facebook, which occurred throughout 2021, in which those companies agreed to de-amplify, place warnings on or fully censor posts containing so-called “vaccine misinformation,” regardless of whether the information was true.

For example, in one email Clark Humphrey, a member of the Biden administration’s COVID-19 response team, requested Twitter remove one of Kennedy’s tweets. The tech giant complied.

“Facebook admitted that although the CHD’s posts did not violate its policies, it would suppress content that originated from CHD,” Doughty wrote.

He cited reports written by organizations, such as the Virality Project, which named Kennedy and CHD specifically, flagging them with “tickets” to report COVID-19 misinformation to the social media giants.

He also cited the fact that Kennedy’s Instagram account was suspended and CHD continues to be deplatformed from Instagram, Facebook and YouTube — showing that CHD faces ongoing injury, a requirement for standing.

“There is not much dispute that both Kennedy and CHD were specifically targeted by the White House, the Office of Surgeon General, and CISA [Cybersecurity and Infrastructure Security Agency], and the content of Kennedy and CHD were suppressed,” he wrote.

Given censorship of the Donald Trump presidential campaign on social media, and evidence presented in a declaration by Brigid Rasmussen, the chief of Kennedy’s presidential campaign, stating that content favorable to the campaign had been censored on social media, Doughty ruled that Kennedy faces a “substantial risk” that government defendants will restrict his speech in the future.

Doughty ruled that the third plaintiff in the case, Connie Sampognaro, a Louisiana healthcare professional, who argued she was deprived of the “right to listen” to censored organizations did not have standing. Doughty said Sampognaro did not show specific instances of content moderation that caused her harm.

‘Undisputed that CHD has satisfied its burden of showing injury’

In June, the Supreme Court struck down a similar injunction against the Biden administration in a related case, Murthy v. Missouri.

The court ruled the plaintiffs — two states and five social media users — did not have standing because they couldn’t show “specific causation” for any instance of content moderation tied to the government.

The court also said the plaintiffs couldn’t demonstrate a substantial risk that “in the near future they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek.”

The injunction issued in Kennedy v. Biden was granted on Feb. 14 by Doughty, who also issued a stay until 10 days after the Supreme Court ruled on the injunction in Murthy v. Biden.

After the Supreme Court overturned the Murthy v. Missouri injunction, the Biden administration appealed the injunction in Kennedy v. Biden to the 5th Circuit U.S. Court of Appeals, citing the same argument they used in Murthy v. Missouri — that the plaintiffs lacked standing.

The 5th Circuit sent the case back to the District Court to rule on standing. In its ruling yesterday, Doughty wrote:

“This Court finds that there is significant evidence showing Kennedy was directly censored in the past, and there is likely a substantial risk that Kennedy’s content will be restricted in the future because of the actions of at least one of the Government Defendants. …

“It is undisputed that CHD has satisfied its burden of showing injury in fact for much of the same reasons that Kennedy has.”

Only one plaintiff needs to have standing for a case to move forward. The case will now proceed to the 5th Circuit, which will rule on the preliminary injunction.

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.