Originally Authored at TheFederalist.com
More internal government communications will soon be revealed in a high-profile censorship case that already hit the U.S. Supreme Court, thanks to a Friday court ruling in Missouri v. Biden. The historic free speech case uncovered that federal officials, all the way up to President Joe Biden, pressured social media companies to remove specific posts and discussion terms, systemically slanting society in favor of Democrats by controlling public discussions.
After the Supreme Court ruled in June that the plaintiffs didn’t meet the higher legal standard for a preliminary injunction against government officials, as the case moved forward, the case went back to a Louisiana district court, where it originated. The judge in that case, Terry Doughty, on Friday allowed the plaintiffs to obtain more public records, which they say will help establish that federal officials specifically targeted their speech on social media monopolies such as Facebook, Google, and X.
“Because we find that Plaintiffs have demonstrated the necessity of jurisdictional discovery, and because their proposed discovery does not appear to be a jurisdictional fishing expedition—Plaintiffs shall have the opportunity to conduct such discovery,” Doughty wrote in his Nov. 8 ruling.
The plaintiffs include the states of Missouri and Louisiana; prominent doctors Jayanta Bhattacharya, Aaron Kheriaty, and Martin Kulldorff; and citizens Jill Hines and Jim Hoft. They are suing numerous federal agencies and officials, including Biden, national security bureaucracies such as the Department of Homeland Security and FBI, and health bureaucracies such as the U.S. Centers for Disease Control.
The case filed in August 2022 initially focused on censorship of accurate information that challenged Covid-19 policies such as mass lockdowns. But subsequent discovery, investigative reporting, and congressional investigations have revealed social media censorship of numerous topics that include sexual politics, environmental alarmism, and other disagreement with far-left orthodoxy.
“Every judge that has examined the merits of this case has found a First Amendment violation,” Doughty noted.
In his Nov. 8 ruling, Doughty denied the plaintiffs’ request to add more plaintiffs who could help establish standing. He said to revisit that after this next round of discovery. The plaintiffs had sought to add to their case members of the “Disinformation Dozen” the Biden administration targeted for social media silencing by name. That group included recent presidential candidate Robert F. Kennedy Jr.
Doughty noted Kennedy is likely to join the newly elected Trump administration, which could put Kennedy in charge of one of the federal agencies the plaintiffs are suing for violating their First Amendment rights: “Especially relevant and equally wild, one of the Kennedy Plaintiffs may soon replace or control Defendants.”
The plaintiffs’ lawyers include the attorneys general of Missouri and Louisiana, Andrew Bailey and Elizabeth Murrill, respectively; and the New Civil Liberties Alliance. NCLA is a high-wattage constitutional law firm that recently persuaded the Supreme Court to overturn a former precedent called Chevron deference. For decades, that precedent essentially forced courts to let bureaucracies make up laws, violating the constitutional principles of the rule of law, separation of powers, and representative government.
In June, a U.S. Supreme Court majority imposed an unusually high bar to establish standing in this case. Standing is a strong connection between the alleged harm and the parties sued. Writing for the majority, Justice Amy Coney Barrett insisted that to obtain a preliminary injunction, plaintiffs must demonstrate “a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant.”
Dissenting justices Clarence Thomas, Neil Gorsuch, and Samuel Alito concluded that the plaintiffs had clearly demonstrated government officials directly harmed them and millions of fellow Americans by restricting online speech. They declared Missouri v. Biden was “one of the most important free speech cases to reach” their bench “in years.”
Doughty bought the plaintiffs’ argument that the Supreme Court’s refusal to consider the merits of the case shouldn’t result in its complete dismissal but in expanding the case to procure more evidence the government violated Americans’ free speech rights.
“The standard required to withstand a motion to dismiss is less than that needed to obtain a preliminary injunction,” the plaintiffs argued to Doughty. “And the Supreme Court had before it only a limited record, which did not (to take just one example) include later uncovered internal Facebook emails where company executives admitted to censoring content ‘[b]ecause we were under pressure from the [Biden] administration.’”
Doughty wrote in his Nov. 8 ruling, “[T]he Supreme Court’s holding—that Plaintiffs’ showing of standing was insufficient to maintain a preliminary injunction—is not necessarily fatal to Plaintiffs’ suit generally.” That’s because the evidence necessary to support a preliminary injunction is higher than that required to allow a lawsuit to proceed. The available evidence, he wrote, “constitutes sufficient smoke to justify allowing Plaintiffs an opportunity to go find the fire.”
“In a case where the government is ‘uniquely in control of the facts, information, documents, and evidence regarding the extent and nature of their mass [censorship efforts]’ serious jurisdictional discovery is likely the only vehicle by which Plaintiffs could attempt to prove standing,” Doughty wrote (brackets original).
The plaintiffs have until Nov. 29 to file their initial proposal for what documents they seek. NCLA is also representing The Federalist, the state of Texas, and The Daily Wire in a separate lawsuit against the State Department for funding censorship tools that keep Americans from seeing The Federalist’s and Daily Wire’s reporting.
“Our plaintiffs, who have been censored extensively on social media and targeted for suppression by government actors, deserve to know the extent of the government’s involvement in silencing them,” NCLA lawyer Jenin Younes told Reclaim The Net.