Missouri v. Biden

680 F.Supp.3d 630

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 July 4, 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, Kenneth C. Capps, Pro Hac Vice, James Otis Law Group, St. Louis, MO, Joshua M. Divine, 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 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 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, Zhonette M. Brown, 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, John C. Burns, Pro Hac Vice, Burns Law Firm, 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., Vivek H. Murthy, Xavier Becerra, Dept. of Health & Human Services, Anthony Fauci, National Institute of Allergy & Infectious Diseases, Centers for Disease Control & Prevention, Alejandro Mayorkas, Dept. of Homeland Security, Jen Easterly, Cybersecurity & Infrastructure Security Agency, Nina Jankowicz, Karine Jean-Pierre, Carol Crawford, Jennifer Shopkorn, U.S. Census Bureau, U.S. Dept. of Commerce, Robert Silvers, Samantha Vinograd, Gina McCarthy, Andrew Slavitt, Rob Flaherty, Courtney Rowe, Clarke Humphrey, Benjamin Wakana, Subhan Cheema, Dori Salcido, Timothy W. Manning, Dana Remus, Aisha Shah, Laura Rosenberger, Mina Hsiang, U.S. Dept. of Justice, Federal Bureau of Investigation, Laura Dehmlow, Elvis M. Chan, Jay Dempsey, Kate Galatas, Eric Waldo, Yolanda Byrd, Christy Choi, Tericka Lambert, Joshua Peck, Janell Muhammed, Matthew Masterson, Lauren Protentis, Geoffrey Hale, Allison Snell, Kim Wyman, Brian Scully, Zachary Henry Schwartz, Lorena Molina-Irizarry, Kristin Galemore, U.S. Food & Drug Administration, Erica Jefferson, Michael Murray, Brad Kimberly, U.S. Dept. of State, Leah Bray, Samaruddin K. Stewart, Daniel Kimmage, Alexis Frisbie, U.S. Dept. of Treasury, Wally Adeyemo, U.S. Election Assistance Commission, Mark A. Robbins, Kristen Muthig.

Kyla Snow, U.S. Dept. of Justice, Washington, DC, for Hugh Auchincloss.

Brian Wade Arabie, Sigler Arabie & Cannon, Lake Charles, LA, Travis Christopher Barham, Pro Hac Vice, Alliance Defending Freedom, Lawrenceville, GA, Tyson Charles Langhofer, Pro Hac Vice, Alliance Defending Freedom, Lansdowne, VA, for Amicus Alliance Defending Freedom.

Ben E. Clayton, Joshua Paul Clayton, Clayton Law Firm, Slidell, LA, Jay R. Carson, Pro Hac Vice, Wegman Hessler & Valore, Cleveland, OH, for Amicus Buckeye Institute.

Glynn Shelly Maturin, II, Welborn & Hargett, Lafayette, LA, for Amicus Childrens Health Defense.

MEMORANDUM RULING ON REQUEST FOR PRELIMINARY INJUNCTION

TERRY A. DOUGHTY, UNITED STATES DISTRICT JUDGE

At issue before the Court is a Motion for Preliminary Injunction [Doc. No. 10] filed by Plaintiffs.¹ The Defendants² oppose the Motion [Doc. No. 266]. Plaintiffs have filed a reply to the opposition [Doc. No. 276]. The Court heard oral arguments on this Motion on May 26, 2023 [Doc. No. 288]. Amicus Curiae briefs have been filed in this proceeding on behalf of Alliance Defending Freedom,³ the Buckeye Institute,⁴ and Children's Health Defense.⁵

I. INTRODUCTION

I may disapprove of what you say, but I would defend to the death your right to say it.

Evelyn Beatrice Hill, 1906, The Friends of Voltaire

This case is about the Free Speech Clause in the First Amendment to the United States Constitution. The explosion of social-media platforms has resulted in unique free speech issues—this is especially true in light of the COVID-19 pandemic. If the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States' history. In their attempts to suppress alleged disinformation, the Federal Government, and particularly the Defendants named here, are alleged to have blatantly ignored the First Amendment's right to free speech.

Although the censorship alleged in this case almost exclusively targeted conservative speech, the issues raised herein go beyond party lines. The right to free speech is not a member of any political party and does not hold any political ideology. It is the purpose of the Free Speech Clause of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of the market, whether it be by government itself or private licensee. Red Lion Broadcasting Co., v. F.C.C., 395 U.S. 367, 89 S. Ct. 1794, 1806, 23 L.Ed.2d 371 (1969).

Plaintiffs allege that Defendants, through public pressure campaigns, private meetings, and other forms of direct communication, regarding what Defendants described as "disinformation," "misinformation," and "malinformation," have colluded with and/or coerced social-media platforms to suppress disfavored speakers, viewpoints, and content on social-media platforms. Plaintiffs also allege that the suppression constitutes government action, and that it is a violation of Plaintiffs' freedom of speech under the First Amendment to the United States Constitution. The First Amendment states:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof: or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (emphasis added).

First Amendment, U.S. Const. amend. I.

The principal function of free speech under the United States' system of government is to invite dispute; it may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533, 2542-43, 105 L.Ed.2d 342 (1989). Freedom of speech and press is the indispensable condition of nearly every other form of freedom. Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 1986, 18 L.Ed.2d 1094 (1967).

The following quotes reveal the Founding Fathers' thoughts on freedom of speech:

For if men are to be precluded from offering their sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away, and dumb and silent we may be led, like sheep, to the slaughter.

George Washington, March 15, 1783.

Whoever would overthrow the liberty of a nation must begin by subduing the free acts of speech.

Benjamin Franklin, Letters of Silence Dogwood.

Reason and free inquiry are the only effectual agents against error.

Thomas Jefferson.

The question does not concern whether speech is conservative, moderate, liberal, progressive, or somewhere in between. What matters is that Americans, despite their views, will not be censored or suppressed by the Government. Other than well-known exceptions to the Free Speech Clause, all political views and content are protected free speech.

The issues presented to this Court are important and deeply intertwined in the daily lives of the citizens of this country.

II. FACTUAL BACKGROUND

In this case, Plaintiffs allege that Defendants suppressed conservative-leaning free speech, such as: (1) suppressing the Hunter Biden laptop story prior to the 2020 Presidential election; (2) suppressing speech about the lab-leak theory of COVID-19's origin; (3) suppressing speech about the efficiency of masks and COVID-19 lockdowns; (4) suppressing speech about the efficiency of COVID-19 vaccines; (5) suppressing speech about election integrity in the 2020 presidential election; (6) suppressing speech about the security of voting by mail; (7) suppressing parody content about Defendants; (8) suppressing negative posts about the economy; and (9) suppressing negative posts about President Biden.

Plaintiffs Bhattacharya and Kulldorff are infectious disease epidemiologists and co-authors of The Great Barrington Declaration ("GBD"). The GBD was published on October 4, 2020. The GBD criticized lockdown policies and expressed concern about the damaging physical and mental health impacts of lockdowns. They allege that shortly after being published, the GBD was censored on social media by Google, Facebook, Twitter, and others. Bhattacharya and Kulldorff further allege on October 8, 2020 (four days after publishing the GBD), Dr. Frances Collins, Dr. Fauci, and Cliff Lane proposed together a "take down" of the GBD and followed up with an organized campaign to discredit it.⁶

Dr. Kulldorff additionally alleges he was censored by Twitter on several occasions because of his tweets with content such as "thinking everyone must be vaccinated is scientifically flawed," that masks would not protect people from COVID-19, and other "anti-mask" tweets.⁷ Dr. Kulldorff (and Dr. Bhattacharya⁸) further alleges that YouTube removed a March 18, 2021 roundtable discussion in Florida where he and others questioned the appropriateness of requiring young children to wear facemasks.⁹ Dr. Kulldorff also alleges that...