Missouri, Louisiana Seek to Advance Social Media Censorship Lawsuit

The administration is incorrect in arguing that government officials “merely” engaged in a “broader debate over the rising influence of social-media platforms,” Missouri AG Andrew Bailey (R) and Louisiana AG Jeff Landry (R) argued in their filing. Biden officials engaged in a “very specific unconstitutional form of government speech,” which included “threats, coercion, and joint activity” to “procure censorship of social-media speech by private citizens.” Officials publicly threatened to use government authority to impose unfavorable legal consequences -- including threats linked to Communications Decency Act Section 230 and antitrust legislation -- against platforms failing to censor speakers, the AGs argued: This is “government-induced censorship that violates the First Amendment.”

The federal government filed a motion to dismiss the plaintiffs’ second amended complaint for lack of subject matter jurisdiction (see 2211230075). States should be able to sue the federal government to “vindicate their quasi-sovereign interests,” the AGs argued. At a minimum, the states should be able to sue to vindicate these quasi-sovereign interests rooted in state law, they said. The AGs accused the federal government of threatening social media platforms with the elimination of Section 230, which was directly linked to government “demands for greater censorship of speech and viewpoints disfavored by federal officials.” Government officials threatened companies with the possibility of antitrust legislation, the AGs said. Former White House Press Secretary Jen Psaki threatened companies in regards to both Section 230 and competition policy, they said.

States and individual plaintiffs have third-party standing to defend the First Amendment rights of social media audiences, the AGs argued: “Plaintiffs assert free-speech injuries to both themselves and their audiences, who are deprived of access to Plaintiffs’ speech by ongoing social-media censorship.” The First Amendment protects the rights of individuals to receive messages and viewpoints of others freely, they said.

Republican state attorneys general suing the Biden administration over alleged social media censorship need to explore “less intrusive alternatives” to a deposition with former White House Press Secretary Jen Psaki, the 5th U.S. Circuit Court of Appeals said Thursday in docket 22-30697. This is the fourth deposition the court has stayed in a case before the U.S. District Court for the Western District of Louisiana (docket 3:22-cv-01213). The 5th Circuit’s “central concern” is that “absent ‘extraordinary circumstances,’ depositions of high government officials should not proceed.” This has been a constant rule for decades “regardless of who the officials are,” the court said. “The circumstances have not yet been shown as extraordinary in light of the possibility of alternatives.” The court granted the federal government’s motion for leave to supplement its petition for writ of mandamus and added the U.S. as a petitioner in the case. The 5th Circuit previously stayed the depositions of U.S. Surgeon General Vivek Murthy; Jen Easterly, Cybersecurity and Infrastructure Security Agency director; and Rob Flaherty, White House director of digital strategy. After further district court findings, the parties “pursued other alternatives to these depositions,” the 5th Circuit noted. Missouri and Louisiana AGs deposed then Anthony Fauci, former White House chief medical adviser, in November.