Judge: States Will Get ‘Expedited Discovery’ On Biden Admin Collusion With Big Tech To Censor Conservatives
Missouri AG Eric Schmitt: “No one has had the chance to look under the hood before – now we do.”
There has been much public evidence that the Biden administration has pressured large social media and tech companies to censor political opponents under the guise of designating such speech “disinformation” or “misinformation.”
On May 5, 2022, the states of Missouri and Louisiana filed a Complaint alleging that such collusion violated, among other things, its citizens first amendment rights. The defendants included not only senior administration officials, but also the head of the administrations planned and then disbanded ministry of information, Nina Jankowicz [see featured image].
The Complaint asserted:
2. A private entity violates the First Amendment “if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint.” Biden v. Knight First Amendment Institute at Columbia Univ., 141 S. Ct. 1220, 1226 (2021) (Thomas, J., concurring). “The government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly.” Id.
3. That is exactly what has occurred over the past several years, beginning with express and implied threats from government officials and culminating in the Biden Administration’s open and explicit censorship programs. Having threatened and cajoled social-media platforms for years to censor viewpoints and speakers disfavored by the Left, senior government officials in the Executive Branch have moved into a phase of open collusion with social-media companies to suppress disfavored speakers, viewpoints, and content on social-media platforms under the Orwellian guise of halting so-called “disinformation,” “misinformation,” and “malinformation.”
* * *
6. As a direct result of these actions, there has been an unprecedented rise of censorship and suppression of free speech—including core political speech—on social-media platforms. Not just fringe views, but perfectly legitimate, responsible viewpoints and speakers have been unlawfully and unconstitutionally silenced in the modern public square. These actions gravely threaten the fundamental right of free speech and free discourse for virtually all citizens in Missouri, Louisiana, and America, both on social media and elsewhere.
On June 14, the States filed a Motion for a Preliminary Injunction with extensive affidavit evidence:
The Memorandum of Law supporting the motion asserted:
If the White House spokesperson stood at her podium and repeatedly demanded that private booksellers burn certain books that the federal government disfavors, or else face grave legal consequences, everyone would see the First Amendment problem. If federal officials sat in on the editorial board meetings of the New York Times and told them what stories they should run if they want to avoid legal problems, everyone would see the First Amendment problem.
This case is worse than these hypotheticals. Here are the words of Jen Psaki, then-White House spokesperson: “We are in regular touch with these social media platforms, and those engagements typically happen through members of our senior staff…. We’re flagging problematic posts for Facebook that spread disinformation…. We engage with them regularly and they certainly understand what our asks are.” Glenn Decl. Ex. 30, at 9-11 (emphasis added) (Ex. A). The government’s “problematic posts,” id., are those that supposedly contain “disinformation and misinformation, especially related to COVID-19, vaccinations, and elections.” Glenn Decl., Ex. 29, at 15. Along with “members of our senior staff,” Glenn Decl. Ex. 30, at 9, officials at HHS and DHS are coordinating and colluding directly with social-media companies to dictate what Americans can and cannot say on their social-media accounts—and doing so under the everpresent threat of grave legal consequences to those companies if they do not comply….
There is compelling evidence that federal officials, including Defendants here, have adopted an aggressive program to coordinate with private social-media companies to censor and suppress disfavored speech on social media. This is ultra vires and violates the First Amendment.
The States also sought expedited discovery pending a future hearing on the motion for an injunction, including the ability to serve subpoenas on the social media and big tech companies and to take depositions as who communications with government officials.
Today the Court granded the Motion for Expedited Discovery. Missouri Attorney General Eric Schmitt tweeted:
BREAKING: A federal court granted our request for discovery & documents from top ranking Biden officials & social media companies to get to the bottom of their collusion to suppress & censor free speech.
No one has had the chance to look under the hood before – now we do.
From the Judge’s Order:
In the Complaint, Plaintiff States set forth examples of suppression of free speech, which include:
1. The Hunter Biden laptop story prior to the 2020 Presidential election;
2. Speech about the lab-leak theory of COVID-19’s origin;
3. Speech about the efficiency of masks and COVID-19 lockdowns; and
4. Speech about election integrity and the security of voting by mail.Additionally, the Complaint sets forth actions by specific Government Defendants that have been taken to suppress free speech. Plaintiff States allege that free speech is the bedrock of American liberty, and Government Defendants are in violation of the First Amendment to the U.S. Constitution in attempting to suppress free speech by labeling the speech as “misinformation.”
* * *
In the Motion for Expedited Preliminary Injunction-Related Discovery, Plaintiff States ask for the following expedited discovery:
(1) Targeted interrogatories and document requests to Government Defendants requesting the identities of federal officials who have or are communicating with social-media platforms about disinformation, misinformation, malinformation, or any form of censorship or suppression of online speech;
(2) Targeted interrogatories and document requests to Government Defendants requesting the nature and content of such federal officials’ communications with such socialmedia platforms, including both currently known and unknown federal officials;
(3) Serve third-party subpoenas on a limited number of major social-media platforms seeking similar information about the identity of federal officials who communicate with them, and the nature and content of those communications; …
(6) After any objections are resolved by the Court, Plaintiff States are to notify Government Defendants, based upon discovery responses received, whether Plaintiff States seeks to take any depositions; ….* * *
At this point, Plaintiff States seek to issue interrogatories and document requests to Government Defendants; and to serve third party subpoenas on a limited number of social media platforms. Whether depositions will be taken will be addressed later. Plaintiff States seek identity of federal officials communicating with these social media platforms including the nature and content of those communications. Plaintiff States seek similar information from the social media platforms. This is a complicated case The proposed discovery requests are targeted to the specific allegations of Plaintiff States’ Complaint. The requests are reasonable….
The purpose of the proposed expedited discovery is to gain additional evidence to prove the allegations of Missouri and Louisiana for purposes of the pending Motion for Preliminary Injunction. The proposed discovery is tailored to the allegations Plaintiff States seek to prove and is not a “fishing expedition.” ….
Therefore, this Court believes that Missouri and Louisiana have shown good cause for expedited preliminary injunction discovery.
The Court set a more relaxed timeline for the discovery to take place, but pretty much gave the States everything they wanted.
So within a few months, we should know what Missouri and Louisiana find under the hood of the Biden administration’s collusion with the big social media and tech companies.
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Comments
“Biden” hasn’t done sh*t. He’s ceded control to Susan Rice, Antia Dunn, his idiot wife and Obama.
Irrelevant. They’re all exercising his authority. He’s being sued in his official capacity, not his personal capacity. Should he fall off the perch while the case is open, the title would immediately change to Missouri et al v Harris et al.
If he DOES fall off the perch, will you commit to informing John Cleese personally?
Pining for the fjords?
Wow. This could be a huge deal.
That would be welcome, but my money is on “zero consequences”.
More Blockbuster Revalations that will be kept off Twitter and Facebook.
Hopefully they’ll be forceful and smart in their discovery, rather than have some political dipstick seeking quick, shallow victories. We’ll see.
Jeff Landry’s our AG. He’s not a political dipstick, far from it. He practices what he preaches and I’m hopeful that something constructive will come out of the suit.
This represents a huge amount of work. Putting that complaint together along with the motions and memorandum was herculean.
It would appear that lots and lots of federal officers didn’t mean a word of the oath they took under Article VI.
I looked at it.. 1077 pages… and.. well.. I did not get too far.
This should be some interesting discovery. Good work, Missouri and Louisiana, and thank you for taking this action to protect all Americans’ constitutional rights.
That’s odd. Which government is alleged to have coerced or induced them to suppress speech about that? Surely not the Trump administration. It seems clear that they did that one of their own accord, and thus it doesn’t violate anyone’s rights. It seems to me that including it in the complaint undermines the rest of it, because the most parsimonious conclusion would be that just as they did that one on their own they did the others on their own too.
Indeed they started suppressing speech on all the other items in 2020 too, at which time they must have been doing it on their own. Any government involvement, which thus brings the 1A into play, didn’t start until Jan-21-2021 at the earliest. Surely they can only sue for actions after that date.
The government is bigger than just the president at any point in time. Perhaps the plaintiffs have information any number of the alphabet soup agencies contacted members of the media unbeknownst to the president at the time.
I know it sounds really, really far fetched, right?
Maybe to establish a pre-existing pattern of conduct? Demonstrate that this activity carried over from the campaign to the Admin. Shows the relationships between Biden staffers and tech company employees and how the actions grew in scope; number of staff and tech employees involved.
Perhaps the Venn diagram should be present government and the media and tech “giants” all inclusive in the giant Democrat Socialist bubble…
Per your post Milhouse and as you pointed out,
Quite literally, there can be no case for “President” (in that capacity) prior to 21 Jan,2021 as he was not President before then. This however is “et al” and against the “government” so its a broad net.
I can see a “fruit of the vine’ strategy here and proving involvement long prior to that date ( a conspiracy to be built upon later)
That’s not necessarily true. The alphabet agencies typically have permanent employees that stay through multiple administrations. Just because it was a different administration does not mean that they, the agencies, were not doing ;the same as they were under Biden.
I’m sure that 30 “retired intelligence operatives” just all simultaneously decided to write a “pay no attention to that man behind the curtain” letter. So fortunate they all had each other on speed dial.
Do you really think that most of the government was loyal to Trump?
Deep State.
“More than 50 former senior intelligence officials have signed on to a letter outlining their belief that the recent disclosure of emails allegedly belonging to Joe Biden’s son “has all the classic earmarks of a Russian information operation.”
Let’s hope the FBI or some other federal agency doesn’t get to do the investigating, document review, and submission; all we’ll see is great swaths of blacked out redactions. They’ve played this game before.
Let’s hope the FBI or some other federal agency doesn’t get to do the investigating, document review, and submission; all we’ll see is great swaths of blacked out redactions. They’ve played this game before.
Color me skeptical.
“If federal officials sat in on the editorial board meetings of the New York Times and told them what stories they should run if they want to avoid legal problems, everyone would see the First Amendment problem.”
Like the old Soviet political officers, or those “guides” that follow you around North Korea.
Nah, the media are their own political self-minders.
Does the plaintiff have to prove that the media/tech companies were coerced into compliance? What if discovery shows that they were more than happy to take these actions on behalf of the government, but could have said no if they wanted to?
Whether or not there is consent on the part of media, it’s still collusion by joint actors to suppress free speech rights
The key question, I think, is not whether they were coerced, but whether they were acting on behalf of the government. Missouri & Louisiana are alleging that they were. Their defense will presumably be that they were not only willing but were acting on their own initiative, and they merely invited the government to advise them on how best to carry out their objective.
Which I believe is probably the truth, since they started doing this long before the current administration took over. On the contrary, they were the ones who installed this administration in the first place. Naturally once they had done so they would want to take advantage of the resources this put at their disposal. So they’d argue that far from their being government agents, the government are now their agents!
But let’s see what discovery comes up with. They’ll surely find at least some instances in which the initiative came from the government, and that would be a first amendment violation.
“On the contrary, they were the ones who installed this administration in the first place. Naturally once they had done so they would want to take advantage of the resources this put at their disposal. So they’d argue that far from their being government agents, the government are now their agents!”
Interesting thought about this. Wouldn’t this make them a super pac? If so wouldn’t that be illegal campaign donations? I know it may be impossible to get the government to pursue but that would be another angle with the right discovery information.
Huh? They didn’t donate anything to anyone’s campaign.
Super-PACs don’t make donations either, which is exactly what’s super about them. They can spend as much as they like, because they’re not making donations so there are no regulations; it’s all protected by the first amendment.
The made HUGE in-kind donations to the pedophile’s campaign by silencing the crackhead laptop story so close to election day, especially in light of the polls that say a large percentage of people who voted for the pedophile would have voted otherwise had they known about that.
No, Ironclaw, that is not a donation to the campaign. It had nothing to do with the campaign. The campaign didn’t ask them to do it, and they didn’t ask the campaign whether they should do it.
There are no limits on what a person may do, or how much money he may spend, in order to influence voters. That is the core of the first amendment. There are limits only on donations that are made to a campaign. Those don’t have to be in cash; running free ads for the campaign would be a donation in kind. So might be running a story at the campaign’s request, that they would not otherwise have run. Suppressing a story at the campaign’s request would only be a donation if it somehow cost them money. But doing it without the campaign’s request means it has nothing to do with the campaign at all.
PS: Just to be clear, when I wrote “running free ads for the campaign” I meant literally for the campaign. Running the campaign’s ads without being asked to, and thus obviously without charging for them, would not be a donation. Technically it would be a breach of copyright, but of course the campaign would be delighted and would not object, so that would not be a problem.
You sure about that? In-kind contributions are generally reportable contributions.
“An in-kind contribution is a non-monetary contribution. Goods or services offered free or at less than the usual charge result in an in-kind contribution. Similarly, when a person or entity pays for services on the committee’s behalf, the payment is an in-kind contribution. An expenditure made by any person or entity in cooperation, consultation or concert with, or at the request or suggestion of, a candidate’s campaign is also considered an in-kind contribution to the candidate.”
https://www.fec.gov/help-candidates-and-committees/filing-reports/in-kind-contributions/#:~:text=An%20in%2Dkind%20contribution%20is,is%20an%20in%2Dkind%20contribution.
Much more complex issue and a long answer for a post but here is the “microdot” answer. ( leaving a lot out)
The plaintiff will have to prove essentially that the media was acting under “color” of the govt as an agent (actor)- that’s a very high bar with much protected under 230 and the 1st Amendment.
That’s where that “mysterious dividing line” between what they can do as a business versus deliberate censorship as an agent.
In the highest level terms, in some form or fashion, the plaintiff will have to “prove”
The USG has undue influence ( more than what it did with everything else) over the censoring.
The USG “rewarded” the media for censoring certain ones
The USG went beyond “suggesting” actions.
The immediate defense will be (I’m certain)- “This is who we are and we don’t like conservatives in general as part of our business model because they conflict with our values” (230 allows for this). That’s going to prove effective unless discovery has a lot of good stuff in it.
That’s an “orbital” level overview but essentially accurate for talking purposes.
Taurus,
The tech companies are unlikely to offer a defense of ‘hey we are a bunch of ideological aholes who simply made a choice to reward our friends and punish our enemies’. They could have admitted it long ago but they didn’t because they need to maintain the illusion of being neutral.
They have consistently claimed to be non partisan, unbiased folks who apply a neutral standard. They can’t abandon the representations they have made to Congress, to Courts in multiple lawsuits, in regulatory filings used by Shareholders and so on. If they now say ‘psych… we are actually doing the opposite’ then they expose themselves to significant liability.
Chief,
I respectfully disagree due to the situation and context.
Before, there was no case (litigation) so they had nobody to answer to- now they will ( and that answer will certainly be challenged)
All of those representation were general commentary and situation specific so there is no binding language or requirement- they will 100% skate on all of that.
I think the point is not so much what they can win in court, it’s the impact they can have exposing what they find in discovery.
I really appreciate all these insightful responses. I am not knowledgeable about the law, but my guess would be that no criminal convictions are likely but exposing some dirty laundry that we sort of already knew ( tech and media are biased) around election time might be helpful.
This is a civil claim so there is no criminal anything ( possible but unlikely that a codified crime will be discovered)
Personally Gosport, I believe that is the main goal also but have no factual data to back it up so its just speculation but I would bet money on it.
Even if they did find “smoking gun” emails or docs written by a particular govt. official, ( I can hear the shredders as we speak), i.e. Psaki, couldn’t she just say she was acting on her own volition, not at behest of the Administration? Regardless, I think the Admin (defendants) will drag this out for as long as forever.
They’ve made it pretty crystal clear they have no interest in following “the Rule of Law” under any circumstances ( unless it is to their benefit).
Not from the podium where she speaks as a representative of The Administration.
She could say that. She could also say her words were chosen badly, delivered badly, lacked full context and a host of other things.
People need to realize that Psaki is an employee doing a job. She was not under oath nor a policy maker so her “words” ( even being an official source) have limited probative value.
She can certainly claim her words were chosen poorly and make claims about context but she can’t claim that she was acting in a personal capacity when fulfilling the functions of Press Secretary, speaking from the podium at official briefings or when giving an on the record interview.
There should be some interesting e-mails and other documents coughed up by the defendants in this case. which may very well lead to depositions of the social media companies, and other parties and individuals of interest
A definite possibility.
Wondering if what gets turned up here will have any bearing on other cases. I know Robert Barnes has an ongoing whistleblower lawsuit against Pfizer about the vaccines. Maybe a few useful nuggets of information will be turned up in the discovery on this case that he may be able to borrow.
Viva Frei youtube channel, he has regular livestreams with Barnes discussing various issues about law and culture: https://www.youtube.com/c/VivaFrei/featured
I wonder if Scary Poppins will sing her deposition
A spoonful of sugar makes the meds go down better.