Judges lets states proceed with lawsuit claiming federal officials coerced and colluded with social media giants

A federal judge let conservative state attorneys general proceed with their lawsuit alleging federal officials pressured, and colluded with, social media companies to suppress people’s speech on places like Facebook. He ordered the Biden administration and Anthony Fauci to produce documents and answer questions related to those charges.

Center Square reports:

President Joe Biden, members of his administration and select social media companies must turn over documents and answer questions within the next 30 days during a discovery phase of a lawsuit alleging collusion to suppress freedom of speech, a court ruled.

The attorneys general of Louisiana and Missouri filed a lawsuit in May alleging Biden and eight high-ranking members of his administration and the government colluded with and/or coerced social media companies Meta, Twitter and YouTube to suppress “disfavored speakers, viewpoints, and content on social medial platforms.”

On Tuesday, Terry Doughty, a judge in the U.S. District Court for the Western District of Louisiana, ruled there is “good cause” for the discovery process and set a timetable, including specific deadlines for depositions.

This ruling makes sense, because many courts have previously recognized that it violates the First Amendment for government officials to pressure private companies to restrict the speech of other people. See, e.g., Rattner v. Netburn (1991); Korb v. Lehman (1990); Reuber v. U.S. (1985).  One appeals court ruled it violates free speech for a private company to collude with the government to restrict speech, even absent any government pressure to do so. (See Dossett v. First State Bank (2005)).

Judge Doughty’s September 6 opinion in Missouri v. Biden (W.D. La.) contains this discussion of why he ordered federal officials to produce documents and answer interrogatories:

On May 5, 2022, Plaintiffs {the State of Missouri, the State of Louisiana, Dr. Aaron Kheriaty, Dr. Martin Kulldorff, Jim Hoft, Dr. Jayanta Bhattacharya, and Jill Hines} filed a Complaint against Government Defendants {Joseph R. Biden, Jr., Vivek H. Murthy, Xavier Becerra, Department of Health and Human Services, Dr. Anthony Fauci, National Institute of Allergy and Infectious Diseases, Centers for Disease Control & Prevention, Alejandro Mayorkas, Department of Homeland Security, Jen Easterly, Cybersecurity & Infrastructure Security Agency, and Nina Jankowicz, Karine Jean-Pierre, Carol Y. Crawford, Jennifer Shopkorn, U.S. Census Bureau, U.S. Department of Commerce, Robert Silvers, Samantha Vinograd and, Gina McCarthy}.

In the Complaint and Amended Complaint, Plaintiffs allege Government Defendants have colluded with and/or coerced social media companies to suppress disfavored speakers, viewpoints, and content on social media platforms by labeling the content “disinformation,” misinformation,” and “malinformation.” Plaintiffs allege the suppression of disfavored speakers, viewpoints, and contents constitutes government action and violates Plaintiffs’ freedom of speech in violation of the First Amendment to the United States Constitution….

In accordance with the previous expedited discovery order, Plaintiffs served interrogatories and document requests upon White House Press Secretary Karine Jean-Pierre {[s]ubstituted for former White House Press Secretary Jen Psaki} and upon Dr. Anthony Fauci in his capacity as Chief Medical Advisor to the President. Government Defendants have refused to provide any interrogatory responses or responsive documents, maintaining that these would be internal communications that would implicate serious separation of powers concerns, that Plaintiffs are required to exhaust other avenues for the discovery first, and that it would be unduly burdensome and disproportional to the needs of the case.

Plaintiffs maintain they have not served interrogatories, and document requests upon President Biden and do not seek internal communications—only external communications that Dr. Fauci and Jean-Pierre sent to the relevant social media platforms.

First, the requested information is obviously very relevant to Plaintiffs’ claims. Dr. Fauci’s communications would be relevant to Plaintiffs’ allegations in reference to alleged suppression of speech relating to the lab-leak theory of COVID-19’s origin, and to alleged suppression of speech about the efficiency of masks and COVID-19 lockdowns. Jean-Pierre’s communications as White House Press Secretary could be relevant to all of Plaintiffs’ examples. {The Hunter Biden laptop story prior to the 2020 Presidential election, speech about the lab-leak theory of COVID-19’s origin; speech about the efficiency of masks and COVID-19 lockdowns; and speech about election integrity and security of voting by mail.}

Government Defendants are making a blanket assertion of all communications to social media platforms by Dr. Fauci, and Jean-Pierre based upon executive privilege and presidential communications privilege. Plaintiffs concede they are not asking for any internal White House communications, but only external communications between Dr. Fauci and/or Jean-Pierre and third-party social media platforms.

This Court believes Plaintiffs are entitled to external communications by Jean-Pierre and Dr. Fauci in their capacities as White House Press Secretary and Chief Medical Advisor to the President to third-party social media platforms. The White House has waived its claim of privilege in relation to specific documents that it voluntarily revealed to third parties outside the White House.

Government Defendants’ argument that Plaintiffs must seek discovery from other sources also fails. This is expedited preliminary-injunction related discovery. This discovery was opposed by Government Defendants. This is the only chance Plaintiffs will have to get this information prior to addressing the preliminary injunction. This discovery was tailored to the facts alleged in this case. There was no requirement in this Court’s order for the Plaintiffs to get this information from other sources first.

Additionally, Plaintiffs have also submitted interrogatories and production requests to the third party social medical platforms. As far as the burden to the White House, it is no more a burden than the other discovery requests Government Defendants have already answered.

Therefore, Government Defendants Jean-Pierre and Dr. Fauci shall provide answers to the Plaintiff’s interrogatories and document requests within twenty-one (21) days from the date of this order….

The court also required the government to answer certain interrogatories as to “several employees of HHS which have been identified by Meta as likely engaged in responsive communications with Meta”: “HHS’s Deputy Assistant Secretary for Public Engagement, the head of HHS’s Digital Engagement Team, the Deputy Director of the office of Communications in HRSA, and HHS’s Deputy Digital Director.”

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By GIL