Proven social media censorship suggests hidden gold mine of federal coercion, plaintiffs tell court

The Supreme Court set a high bar in June for states and individuals to challenge government-tinged censorship of social media, reversing a preliminary injunction against the feds because platforms were already suppressing plaintiffs' posts when public officials targeted them.

Censored doctors Jay Bhattacharya, Martin Kulldorff and Aaron Kheriaty, activist Jill Hines and Gateway Pundit publisher Jim Hoft, and the attorneys general of Louisiana and Missouri believe they can meet that high bar, if a court will let them keep digging for evidence.

The plaintiffs in Missouri v. Biden returned to the Western District of Louisiana this week to show their cards – email conversations already obtained through their litigation, a similar case by journalist Alex Berenson, the Twitter Files and congressional investigations – arguing the evidence justifies more legal discovery likely to reveal enough to satisfy SCOTUS.

That evidence strongly suggests there's more dirt on the censorship role played by former National Institute of Allergy and Infectious Diseases Director Dr. Anthony Fauci and his boss, former National Institutes of Health Director Francis Collins, they said.

Berenson showed his promised "particulars" in response to the SCOTUS setback in an amended complaint earlier this month, alleging his censorship by Twitter, now X, was "ultimately traceable" to an ex-President Biden adviser treated as an "intermediary" with the White House. 

It's cited in Tuesday's brief by Missouri and Louisiana AGs Andrew Bailey and Liz Murrill and the individual plaintiffs, which also opposes the feds' motion for dismissal. 

The plaintiffs are likely to get a friendly response from U.S. District Judge Terry Doughty, who issued the sweeping injunction against "urging, encouraging, pressuring, or inducing" platforms to suppress content more than a year ago based on their limited discovery.

The 5th U.S. Circuit Court of Appeals narrowed the injunction but left it in place against the White House, Surgeon General Vivek Murthy, the Centers for Disease Control and Prevention, FBI, and Department of Homeland Security's Cybersecurity and Infrastructure Security Agency. The case became known as Murthy v. Missouri at SCOTUS.

"At no point did the Supreme Court find that Plaintiffs failed to allege standing adequate to maintain the lawsuit," just that they had not "adequately proven that their harm is traceable" to the feds, the memo in support of further discovery says. The New Civil Liberties Alliance is representing the individuals except for Hoft, represented by St. Louis lawyer John Burns.

The high court's decision supports more discovery because it doesn't rest on "those platforms’ independent decisionmaking processes," the brief states. "In the alternative (or better yet, in addition)," Judge Doughty should let them amend the suit to add the "Disinformation Dozen" repeatedly targeted by the White House, including Robert F. Kennedy Jr., a 2024 presidential candidate. 

Doughty greenlit Kennedy's First Amendment suit against the feds last month, saying he was "specifically targeted" for removal by public officials and then suppressed and faced future censorship as Biden's rival, before Kennedy dropped out of the presidential race and endorsed GOP nominee Donald Trump.

Biden administration officials "relentlessly harangued and threatened" X and Meta, which owns Facebook and Instagram, "and potentially other companies whose involvement remains unknown," and they eventually "caved," the memo for further discovery says.

Dismissal would "effectively reward government actors for flouting Americans’ First Amendment rights, provided they do so in secret," it says, quoting the dissenters in Murthy, who warned that the majority's reasoning means that a sophisticated "coercive campaign … may get by."

The emails in the exhibit list all appear to have been disclosed before and be related to COVID-19, either suppression of views the government dislikes or hiding internal discussions of SARS-CoV-2's possible origin from the public.

They include emails between Fauci senior scientific adviser David Morens and outside scientists discussing past and future evasion of the Freedom of Information Act, and Twitter Files showing Bhattacharya, a co-author of the anti-lockdown Great Barrington Declaration with Kulldorff, was placed on a "trends blacklist" when he joined the platform.

Bhattacharya and Hines, co-director of Health Freedom Louisiana, each submitted declarations on their experience with censorship. Hines said she's still being censored, citing incidents from January 2023 through this month. 

Facebook added "fact check" labels that contradicted her claims and demoted her posts, it "almost immediately" removed a post calling America the "laughingstock of the world" because of a gender-nonconforming White House spokesperson, and Instagram demoted and obscured a post noting the explosion of vaccinations infants routinely receive since the 1980s.

The legal jockeying over so-called jawboning comes amid mixed messages from top Democrats and the White House over the proper role of government in policing social media and strong affirmations of free speech by the Republican ticket for the White House.

The White House broke three weeks of silence about Brazil's ban on Elon Musk's X and its steep fines on Brazilians who circumvent the ban when asked at a press briefing Tuesday by reporter Raquel Krähenbühl, of Brazil’s TV Globo, for its position.

"Look, I think when it comes to social media, we have been very clear that we think that, you know, folks should have access to social media," press secretary Karine Jean-Pierre said. "It’s a form of freedom – freedom of speech."

President Biden nonetheless signed legislation to ban TikTok unless its Chinese owner sells the platform by his term's end, giving Trump an opening to curry favor with its American users and accuse the now-lame duck president of trying to "help his friends over at Facebook become richer and more dominant," the New York Post noted. 

TikTok's challenge didn't go over well in oral argument at the U.S. Court of Appeals for the D.C  Circuit on Monday. It briefly banned Students for Life of America the same day and is still censoring nearly 200 of its videos, the group said in a petition Tuesday.

Former Democratic presidential nominee Hillary Clinton called for civil and "even in some cases" criminal charges against Americans for spreading what she considers foreign disinformation, calling it "better deterrence" than charging Russians abroad. 

The Democratic ticket of Kamala Harris and Tim Walz has repeatedly claimed the First Amendment does not protect so-called hate speech, misinformation, or even donor privacy. The ACLU and NAACP opposed then-California AG Harris in court when she sought to unmask donors to free-market Americans for Prosperity, saying it threatens freedom of association.

Former President Trump said at a rally this month he would "sign an executive order banning any federal employee from colluding to limit speech" and "fire every federal bureaucrat who is engaged in domestic censorship under the Harris regime." Republican lawmakers introduced a similar bill to "establish a presumption of liability" for officials that pressure platforms. 

"In the last 2 days, Tim Walz repeated his call for censorship of speech the government finds objectionable and JD Vance issued a statement wholeheartedly in support of free expression," Minnesota novelist Ann Bauer said of her governor, Walz, Wednesday. "I don't love the Trump ticket, but this tells me exactly what I need to do in November."

Last week House Judiciary Committee Chair Jim Jordan, R-Ohio, demanded a briefing by European Union internal markets commissioner Thierry Breton – who angrily resigned from the post days later – on his threats against Musk and X, use of EU law to censor American speech and communications with the White House to "bypass the First Amendment."