Missouri v. Biden

662 F.Supp.3d 626

State of MISSOURI, et al. v. Joseph R. BIDEN Jr., et al.

CASE NO. 3:22-CV-01213

United States District Court, W.D. Louisiana, Monroe Division

Signed March 20, 2023

Elizabeth Baker Murrill, LA Atty Generals Office, Baton Rouge, LA, Charles F. Capps, Pro Hac Vice, Attorney General of MO, St. Louis, MO, Dean John Sauer, Pro Hac Vice, James Otis Law Group, St. Louis, MO, Joshua M. Divine, Pro Hac Vice, Kenneth C. Capps, Pro Hac Vice, Todd Scott, Pro Hac Vice, Attorney General of MO, Jefferson City, MO, Michael E. Talent, Pro Hac Vice, Attorney General of TN, Nashville, TN, for State of Missouri.

Elizabeth Baker Murrill, Tracy L. Short, LA Atty General's Office, Baton Rouge, LA, Charles F. Capps, Attorney General of MO, St. Louis, MO, Dean John Sauer, Pro Hac Vice, James Otis Law Group, St. Louis, MO, for State of Louisiana.

Elizabeth Baker Murrill, LA Atty Generals Office, Baton Rouge, LA, Charles F. Capps, Attorney General of MO, St. Louis, MO, Dean John Sauer, Pro Hac Vice, James Otis Law Group, St. Louis, MO, Jenin Younes, Pro Hac Vice, John J. Vecchione, Pro Hac Vice, New Civil Liberties Alliance, Washington, DC, for Aaron Kheriaty, Martin Kulldorff, Jayanta Bhattacharya, Jill Hines.

Elizabeth Baker Murrill, LA Atty Generals Office, Baton Rouge, LA, Charles F. Capps, Attorney General of MO, St. Louis, MO, Dean John Sauer, Pro Hac Vice, James Otis Law Group, St. Louis, MO, for Jim Hoft.

Amanda Chuzi, Indraneel Sur, Kyla Snow, Adam Kirschner, Kuntal Cholera, Joshua E. Gardner, U.S. Dept. of Justice, Washington, DC, for Joseph R. Biden Jr., et al.

MEMORANDUM RULING

Terry A. Doughty, United States District Judge

Pending before the Court is a Motion to Dismiss [Doc. No. 128] filed by Defendants,¹ seeking dismissal of all claims filed against them by Plaintiffs pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiffs filed an opposition [Doc. No. 165], and Defendants filed a reply [Doc. No. 199]. For the following reasons, the Motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

On May 5, 2022, the State of Louisiana and the State of Missouri (collectively "the States"), each by and through its own Attorney General, together with Aaron Kheriaty, Martin Kulldorff, Jim Hoft, Jayanta Bhattacharya, and Jill Hines (collectively the Private Plaintiffs," and together with the States, "Plaintiffs") filed suit in this Court against various named defendants for violations of the First Amendment, actions in excess of statutory authority, and violations of the Administrative Procedure Act ("APA"). In their Complaint, the States assert that the Defendants are liable for their conduct relating to the alleged suppression of certain ideas and viewpoints on social-media platforms.² On November 11, 2022, the Defendants filed a Motion to Dismiss the States' Second Amended Complaint³ for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted.⁴

This suit arises out of the alleged coercion by the Biden Administration and various government agencies and officials of social-media companies, urging those companies "to censor viewpoints and speakers disfavored by the Left."⁵ The social-media companies involved in this alleged suppression include Facebook (now owned by Meta, Inc.), Twitter, LinkedIn, and YouTube, among others, who, according to the Plaintiffs, moderated the content on their platforms to prevent the spread of "disinformation," "misinformation," and "malinformation."⁶ The Plaintiffs allege that this censorship was encouraged—perhaps even mandated—by the Biden Administration and several key governmental departments, including the Department of Health and Human Services ("HHS"), the Center for Disease Control and Prevention ("CDC"), the United States Census Bureau, and many others.⁷

A. Alleged Use of Governmental Authority to Encourage Censorship

According to Plaintiffs, beginning around the time of the COVID-19 outbreak and ensuing pandemic, if not earlier, "an unprecedented rise of censorship and suppression of free speech—including core political speech—on social-media platforms" occurred, causing harm to the States and their citizens, as well as the generalized public.⁸ The Department of Homeland Security created a "Disinformation Governance Board," apparently intended to prevent the spread of "disinformation" about issues such as the lab-leak of COVID-19,⁹ the efficacy of mask mandates and COVID-19 lockdowns,¹⁰ the Hunter Biden laptop story,¹¹ and election integrity and the security of voting by mail.¹² According to the Plaintiffs, each of these topics has been heavily censored by various social-media platforms, resulting in the suppression of speech in violation of the First Amendment.¹³

The Plaintiffs focus on Section 230 of the Communications Decency Act ("CDA") as a key tool used by the government that "artificially empowered and subsidized the growth of social-media companies and their censorship policies by effectively immunizing much censorship on social media from liability."¹⁴ The CDA, enacted in 1996, provides protection "for private blocking and screening of offensive material" by a "provider or user of an interactive computer service" in order "to promise the continued development of the Internet and other interactive computer services and other interactive media." 47 U.S.C. § 230. Section 230(c)(2) specifically states that: "No provider or user of an interactive computer service shall be held liable on account of (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected." 47 U.S.C. § 230(c)(2)(A). The States allege that, through subsequent court interpretations of this section and others like it, social-media companies have been granted broad immunity for censorship of disfavored viewpoints.¹⁵

The Plaintiffs further allege that, aware of the importance of this immunity to social-media companies, the Biden Administration and his political allies "have a long history of threatening to use official government authority to impose adverse legal consequences against social-media companies if such companies do not increase censorship of speakers and messages disfavored by Biden and his political allies."¹⁶ According to the Plaintiffs, threats by the government to repeal or amend Section 230 of the CDA—if social-media companies failed to target and censor certain viewpoints—acted as a catalyst in kickstarting more aggressive censorship on social media.¹⁷ Examples given by the Plaintiffs of these alleged threats include:

Speaker Nancy Pelosi (D-CA 11th District), April 12, 2019: "I do think that for the privilege of 230, there has to be a bigger sense of responsibility on it. And it is not out of the question that that could be removed."¹⁸

...

Then-Senator Kamala Harris (D-CA), Sept. 30, 2019: "Look, let's be honest, Donald Trump's Twitter account should be suspended."¹⁹

...

Senator Richard Blumenthal (D-CT), Nov. 17, 2020: "I have urged, in fact, a breakup of tech giants. Because they've misused their bigness and power.... And indeed Section 230 reform, meaningful reform, including even possible repeal in large part because their immunity is way too broad and victims of their harms deserve a day in court."²⁰

Senator Mazie Hirono (D-HI), Feb. 5, 2021: "Sec 230 was supposed to incentivize internet platforms to police harmful content by users. Instead, the law acts as a shield allowing them to turn a blind eye. The SAFE TECH ACT brings 230 into the modern age and makes platforms accountable for the harm they cause."²¹

...

On April 20, 2022, twenty-two Democratic members of Congress sent a letter to Mark Zuckerberg of Facebook (n/k/a "Meta Platforms, Inc."), demanding that Facebook increase censorship of "Spanish-language disinformation across its platforms."²²

The Plaintiffs allege that these statements and many others demonstrate coercion by the government and various officials to prevent the spread of disfavored ideas.²³ As the Plaintiffs put it in their Complaint, "The flip side of such threats, of course, is the implied 'carrot' of retaining Section 230 immunity and avoiding antitrust scrutiny, allowing the major social-media platforms to retain their legally privileged status that is worth billions of dollars of market share."²⁴

Thus, the Plaintiffs allege that, driven by then-candidate and now-President Biden, the Defendants have coerced social-media companies into suppressing an unprecedented number of speakers on vital issues of public concern.²⁵ Specifically, Plaintiffs allege:

For example, on January 17, 2020, then-candidate Biden stated, in an interview with the New York Times editorial board, that Section 230 of the CDA should be "revoked" because social-media companies like Facebook did not do enough to censor supposedly false information in the form of political ads criticizing him—i.e., core political speech. He stated: "The idea that it's a tech company is that Section 230 should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms." He also stated, "It should be revoked because it is not merely an internet company. It is propagating falsehoods they know to be false.... There is no editorial impact at all on Facebook. None. None whatsoever. It's irresponsible. It's totally irresponsible."²⁶

The Plaintiffs' Second Amended Complaint goes into great detail as to each of these threats and the alleged effects they had on social-media companies' implementation of their censorship policies.²⁷ Ultimately, Plaintiffs allege that the result of these statements, together with the looming threat to Section 230 of the CDA, were the catalysts for widespread collusion between government officials and social-media companies.²⁸

As a direct result of the above...