Hines v. Stamos

111 F.4th 551

Jill HINES, on behalf of herself & others similarly situated; Jim Hoft, on behalf of himself & others similarly situated, Plaintiffs-Appellees, v. Alex STAMOS; Renee Diresta; Board of Trustees of The Leland Stanford Junior University; Leland Stanford Junior University; Kate Starbird, in her official and individual capacities; Graphika; Camille Francois; Atlantic Council; Graham Brookie, Defendants-Appellants, Jill Hines, on behalf of herself and others similarly situated; Jim Hoft, on behalf of himself and other similarly situated, Plaintiffs-Appellees, v. Aspen Institute, Defendant-Appellant.

No. 23-30826

CONSOLIDATED WITH No. 23-30916

United States Court of Appeals, Fifth Circuit

FILED July 30, 2024

Appeals from the United States District Court for the Western District of Louisiana, USDC Nos. 3:23-CV-571, 3:23-CV-571, Terry A. Doughty, Chief Judge

Dean John Sauer, Michael Everett Talent (argued), James Otis Law Group, L.L.C., Saint Louis, MO, Gene Patrick Hamilton, America First Legal Foundation, Washington, DC, Julianna Petchak Parks, Langley Parks, L.L.C., Bossier City, LA, for Plaintiffs-Appellees.

John B. Bellinger, III, R. Stanton Jones, Elisabeth S. Theodore (argued), Stephen K. Wirth, Arnold & Porter Kaye Scholer, L.L.P., Washington, DC, James A. Brown, Esq., Liskow & Lewis, A.P.L.C., New Orleans, LA, for Defendants-Appellants Alex Stamos, Renee DiResta, Board of Trustees of the Leland Stanford Junior University, Leland Stanford Junior University.

Daniel J. Dunne, Robert M. McKenna, Orrick, Herrington & Sutcliffe, L.L.P., Seattle, WA, Geoffrey Shaw, Orrick, Herrington & Sutcliffe, L.L.P., Los Angeles, CA, Makala L. Graves, New Orleans, LA, Alex Benjamin Rothenberg, Gordon, Arata, Montgomery, Barnett, McCollam, Duplantis & Eagan, L.L.C., New Orleans, LA, for Defendant-Appellant Kate Starbird.

Samantha Lee Chaifetz, Attorney, Mary Gately, Esq., DLA Piper, L.L.P. (US), Washington, DC, Marie Bussey-Garza, DLA Piper, L.L.P. (US), Philadelphia, PA, Camala Elizabeth Capodice, Esq., Attorney, Irwin Fritchie Urquhart Moore & Daniels, L.L.C., New Orleans, LA, for Defendant-Appellant Graphika.

Camala Elizabeth Capodice, Esq., Attorney, Irwin Fritchie Urquhart Moore & Daniels, L.L.C., New Orleans, LA, for Defendant-Appellant Camille Francois.

Andrew Burns Johnson, Esq., Bradley Arant Boult Cummings, L.L.P., Birmingham, AL, Jon Keith Guice, Hammonds, Sills, Adkins, Guice, Noah & Perkins, L.L.P., Monroe, LA, Alfred Paul LeBlanc, Jr., Esq., Phelps Dunbar, L.L.P., Baton Rouge, LA, for Defendants-Appellants Atlantic Council, Graham Brookie.

John B. Bellinger, III, Stephen K. Wirth, Arnold & Porter Kaye Scholer, L.L.P., Washington, DC, Andrew John Pincus, Archis Ashok Parasharami, Kevin Scott Ranlett, Esq., Mayer Brown, L.L.P., Washington, DC, Elizabeth Mendell Carmody, Esq., Cook, Yancey, King & Galloway, A.P.L.C., Shreveport, LA, for Defendant-Appellant Aspen Institute.

Before Davis, Southwick, and Duncan, Circuit Judges.

W. Eugene Davis, Circuit Judge:

Plaintiffs-Appellees, Jill Hines and Jim Hoft, brought a putative class action lawsuit against Defendants-Appellants, a group of academic institutions, researchers, and nonprofit organizations, alleging that they collaborated with government officials to coerce social-media companies to monitor and censor disfavored speech on their platforms. In response, Defendants moved to dismiss the suit under Rules 12(b)(1), (2), (3), and (6) of the Federal Rules of Civil Procedure for lack of personal and subject-matter jurisdiction, improper venue, and failure to state a claim. Defendants concurrently moved to compel arbitration and stay proceedings or, alternatively, to transfer venue. The district court denied Defendants' motions to compel arbitration, but it has yet to rule on Defendants' motions to dismiss. Defendants appeal the denials of their motions to compel arbitration on this interlocutory appeal under 9 U.S.C. § 16(a). Because the district court erred by not resolving challenges to its jurisdiction before deciding arbitrability, we VACATE and REMAND for further proceedings.

I. BACKGROUND

Jill Hines and Jim Hoft are two social-media users who allege that they have experienced censorship on social-media platforms, such as Twitter and Facebook.¹ Hines is the co-director of the advocacy organization "Health Freedom Louisiana," and founder of the grassroots organization "Reopen Louisiana." She operates Facebook pages for both organizations and posts about the organizations' advocacy against the COVID-19 vaccine and mask mandates. Hines alleges that her personal Facebook and her organizations' Facebook pages "are under constant threat of being completely deplatformed," and have previously been subject to censorship. In particular, she asserts that in 2022 her personal account was "restricted for 90 days," and in April of 2023, "one of her Facebook posts regarding the health consequences of mask mandates, including the potential impact on female reproductive health, was censored on Facebook."

Hoft is the owner of the news website the Gateway Pundit, and operates its social-media accounts on Facebook, Twitter, and Instagram. Hoft alleges that the Gateway Pundit's "social-media accounts experience censorship on major social-media platforms," including "suspensions and deplatforming by Twitter, and censorship on Facebook." He specifically alleges that the Gateway Pundit's accounts "have experienced and continue to experience extensive censorship," of speech related to "COVID-19 issues and election-security issues."

As a result of this alleged past and ongoing censorship, in May of 2023, Plaintiffs filed this putative class action lawsuit on behalf of themselves and "others similarly situated," against the following Defendants, which we refer to collectively as the "Stamos Defendants": (1) the Leland Stanford Junior University ("Stanford University"); the Board of Trustees of Stanford University; the Stanford Internet Observatory ("SIO"); SIO's director, Alex Stamos; and SIO's research director, Renée DiResta; (2) University of Washington's Center for an Informed Public ("CIP") director, Kate Starbird; (3) Graphika; and Graphika's chief innovation officer, Camille François; and (4) the Atlantic Council; and the Atlantic Council's Digital Forensic Research Lab ("DFRLab") senior director, Graham Brookie.

Plaintiffs' initial complaint asserted that in July of 2020, a coalition of researchers from SIO, CIP, Graphika, and DFRLab, formed the Election Integrity Partnership ("EIP"), an academic research project created to understand and address "misinformation and disinformation in the social media landscape." The complaint further alleged that "beginning in early 2021, the same four entities that launched the Election Integrity Partnership expanded the program to address COVID-19 'misinformation' on social media, which they called the 'Virality Project' or the 'VP' for short." The thrust of Plaintiffs' complaint was that the Stamos Defendants, through the EIP and VP, "collaborate[d] closely with federal, state, and local government officials to monitor and censor disfavored viewpoints on social media."

In August of 2023, the Stamos Defendants filed a motion to compel arbitration, dismiss the class claims, and stay all proceedings or, alternatively, to transfer venue. The Stamos Defendants concurrently filed a motion to dismiss under Rules 12(b)(1), (2), (3), and (6) for lack of personal and subject-matter jurisdiction (standing), improper venue, and failure to state a claim upon which relief may be granted.

Almost two months later, Plaintiffs filed an amended complaint—the operative complaint here—naming the Aspen Institute ("Aspen") as an additional defendant. The amended complaint reasserts the same allegations about the formation and purpose of the EIP and VP, and further alleges that both programs worked with government officials to "urge, pressure, and coerce social-media platforms to monitor and censor disfavored speakers and content."

The amended complaint states five causes of action: (Count 1) civil rights conspiracy under 42 U.S.C. § 1985(3); (Count 2) deprivation of rights under color of state law under 42 U.S.C. § 1983; (Count 3) violation of the First Amendment; (Count 4) tortious interference with contractual and business relationships; and (Count 5) breach of duty. Plaintiffs' amended complaint seeks declaratory and injunctive relief, nominal, compensatory, and punitive damages, and attorneys' fees and costs.

The district court denied the Stamos Defendants' motion to compel arbitration based on the allegations in Plaintiffs' amended complaint. The court acknowledged that neither party disputed that Twitter's and Facebook's terms of service agreements contained arbitration clauses and that Defendants were not signatories to the arbitration agreements entered into by Hines and Hoft. The court then went on to conclude that Defendants, as non-signatories, could not use equitable estoppel to enforce the arbitration clauses. The district court did not address the Stamos Defendants' pending motion to dismiss for lack of personal jurisdiction and standing, improper venue, and failure to state a claim. The Stamos Defendants timely appealed.

Aspen, the newly-added Defendant, also moved to: (1) compel arbitration and stay all proceedings; and (2) dismiss the amended complaint for lack of personal and subject-matter jurisdiction, and improper venue. The district court denied Aspen's motion to compel arbitration "for the same reasons" provided in its order denying the Stamos Defendants' motion. Aspen timely appealed. We consolidated the Stamos Defendants' and Aspen's interlocutory appeals.

After briefing concluded in this appeal, the Supreme Court issued an opinion in a related case, Murthy v. Missouri.² In Murthy, two states and a group of social-media users—including Plaintiffs in this case—sued numerous federal officials for allegedly coercing social-media...