Litigation Update: Missouri v. Biden

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Sam Fendler:  Hello, everyone, and welcome to this Federal Society virtual event. My name is Sam Fendler, and I'm an Assistant Director of Practice Groups with The Federalist Society. Today, we're excited to host a litigation update on Missouri v. Biden. We're joined today by Harmeet Dhillon.

Our moderator for this discussion is Mr. Casey Mattox. Casey is Vice President for Legal and Judicial Strategy at Americans for Prosperity. Casey is a First Amendment attorney with extensive litigation experience, and he's testified before Congress on multiple occasions. Casey is also an executive committee member of The Federalist Society's Free Speech and Election Law Practice Group, and we thank him for his great work there.

If you'd like to learn more about today's guests, their full bios can be viewed on our website, fedsoc.org. After Harmeet delivers her opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we'll do our best to answer as many questions as we can.

Finally, I'll note that, as always, all expressions of opinion today are those of our guest speakers and not The Federalist Society. Casey, thank you very much for being here today and joining us. The floor is yours.

Casey Mattox:  Thank you, Sam, I appreciate it. Very excited to be able to talk about this case. This is one that came out on the Fourth of July, and so many of us, especially First Amendment junkies, may have been trying to get an update on this case while we were trying to figure out where we were going for fireworks that evening.

But it's appropriate because the First Amendment's always appropriate for the Fourth of July, and it's an interesting decision that was 155 pages long. So here to help us break down the decision and give us an understanding of where this where this case is, is Harmeet Dhillon.

Harmeet is the founding partner of Dhillon Law Group. She's a lawyer, boardroom advisor, and political commentator. Her practice is focused on commercial litigation, employment law, First Amendment rights, and election law. Harmeet is also a member of the executive committee for the Free Speech and Election Law working group at The Federalist Society.

So, Harmeet, great to have you help us break down 155 pages of this opinion and explain to folks what the Court did, what the case is about, and where it appears to be going from here.

Harmeet Dhillon:  Well, thank you, Casey, and thank you, Sam, for that introduction. And before I get started, I want to thank Eric Sell, my colleague at the Center for American Liberty, a First Amendment-focused nonprofit that helped me prepare and crunch not only this opinion, which is, as Casey mentioned, 155 pages long, but also a fairly intense background and procedural history to this case, which has been pretty fast paced, and gave me a cheat sheet for all the acronyms in this case. There are a lot of acronyms and a lot of alphabet agencies in this case.

So let me start with the procedural history of this case. So, first of all, this case is filed by the states of Missouri and Louisiana. So the Attorneys General of those two states are the plaintiff's lawyers in partnership with a nonprofit known as the New Civil Liberties Alliance, and they filed suit a little over a year ago in May 2022 on behalf of, really, two buckets of plaintiffs.

One was on behalf of the citizens of these two states, alleging that citizens had been damaged by the restrictions on the First Amendment flow of free information that came about as a result of the allegations in this case, but also individual plaintiffs—mainly physicians, but also a journalist, Doctors Aaron Kheriaty, Dr. Martin Kulldorff,, Dr. Jay Bhattacharya, Jill Hines, as well as Jim Hoft, who is the founder of The Gateway Pundit.

And so they also sought class certification in this case on behalf of classes of other individuals similarly situated. And the defendants are, as I mentioned, an alphabet list of agencies involved in the federal government. So they include President Biden, members of his immediate staff, numerous cabinet agencies, the Surgeon General, and both high- and mid-level staffers at various agencies.

So the agencies include CISA, Cybersecurity and Infrastructure Security Agency; Department of Justice; the FBI; the National Institutes of Allergy and Infectious Disease; Center for Disease Control; Department of Homeland Security; and then a few others who aren't really involved in the injunction; Department of the Census Bureau. Commerce, FDA and the United States Election Assistance Commission.

So the procedural history of this case coming up into the injunction that was issued on July 4th is, the complaint was filed on May 5th. Preliminary injunction motion was filed on June 14th, and the motion to dismiss was filed on July 12th, all last year. There's been an amended complaint in August last year, and now there have been two more amended complaints.

After some wrangling, the Court granted limited discovery, 21 days' worth, in September of last year, and some important discovery was taken from defendants, including Dr. Fauci, Press Secretary Karine Jean-Pierre. And the plaintiff's request to search all of the HR files of HHS employees, 80,000 of them, was denied. So there was intense early discovery that makes me envious; it's often hard to get a Court to get into it that quickly, but obviously, this is a matter of great importance.

So that's the background of this case. And so, for any of you who want to know more about some of these agencies, there's a report on the House Judiciary Select Committee on Weaponization of the Government on CISA, which was founded fairly recently during the Trump administration. It was created by Congress in 2018. And a lot of the Court's opinion actually flows from that government entity's interactions with social media companies as well as spinning off some particular outfits within the government or nonprofits.

And so the initial thrust of CISA—CISA, depending on how you pronounce it—was to curb domestic mis-, dis-, or malinformation. And so it started in 2018, and it really ramped up during the 2020 election cycle. Then it expanded its own authority to countering foreign intelligence operations as well as curtailing domestic speech that was supposedly mis-, dis-, or malinformation.

CISA also became involved with the Election Integrity Partnership, EIP, which features prominently in this opinion, and some other entities. And again, I'm paraphrasing because it's a 155-page opinion, but there's a lot of detail that the Court found. And the Court made extensive factual findings in this preliminary injunction opinion that has a number of paragraphs and really goes in -- So for anybody who's a geek on all these agencies and what really went on there, I recommend that you take the time to read it.

And so, the allegations of the complaint, in short, are that the Biden administration, specifically, pressured and coerced the major social media companies—and a footnote: the Court applies its opinion to really all the social media companies and lists out most of them—that the Biden administration pressured and core social media companies and nonprofits to censor the plaintiffs for their disfavored speech online.

And the topics included the Hunter Biden laptop story; the efficacy of masks, vaccines; the lab leak theory for COVID; election integrity issues; parody accounts; mocking members of the First Family; and negative posts about the president, President Biden.

The allegations by the state plaintiffs are that the extensive federal censorship outlined in the complaint restricts the free flow of information on the platforms that, in turn, hurts the residents of those two states. So the states are alleging what's called parens patriae standing to sue the federal government, standing in the stead of the citizens as their representatives.

The latest amended complaint asserts, in addition, First Amendment speech claims based on viewpoint discrimination, so not just that censorship occurred, but that it occurred on the basis of viewpoint discrimination. For example, the decision to target the specific plaintiffs and their posts for censorship was regulation based on their perceived conservative viewpoints or viewpoints that were contrary to the government's position on the vaccine issues and issues related to COVID, specifically.

So I've already gone over the procedural history. Just a couple more interesting points. The request for depositions included the highest ranking people in the government. And Dr. Fauci's deposition was taken in this matter, extensive discovery was had, and a third amended complaint was filed earlier this year in May.

So the preliminary injunction was granted a scant less than two months after that, so it's really been a really fast and furious pace in this case. Now, the Court's injunction is very sweeping and very much largely in favor of the plaintiffs and their allegations in this case, with a couple of exceptions.

The Court found, as we look at in preliminary injunction analysis, that the plaintiffs were likely to succeed on the merits of their case. And the Court made reference to one case that I've been involved in, so I just want to reveal that as a disclosure that the Court mentioned that.

This case is really the first of its kind, but there was a previous case in the Ninth Circuit called O'Handley v. Padilla that involves similar allegations, but on the state level. And in that case, the plaintiff sued Twitter and the state of California Secretary of State's office, alleging that they had colluded and worked together.

In this case, there's no claims against the social media companies themselves; the claims are exclusively focused on government action. And so the Court really went to great lengths to point out specific examples—and again, I commend to you to read the opinion—that the government defendants not only expressed their viewpoints—and, of course, as we all know, the government has a right to have its own viewpoints as well—but that they coerced the social media companies using their police power as well as significantly encourage the social media companies to censor plaintiff's speech.

And if you're wondering what that looked like, it included, starting on the third day of the Biden administration, according to this opinion, increasingly aggressive rhetoric from the White House demanding of the contact people at social media companies—Meta and Twitter specifically—that they do something about certain posts or certain speakers.

And then, if that didn't happen quickly, there was increasing rhetoric as to why it hadn't happened already. "I thought you guys were our partners. Are you going to cooperate, or are we going to have to take this in a different direction?"

You know, if you are a regulated company, according to the opinion, you would find at least some of this language to be beyond friendly suggestions from your government and straying into specific discussions about whether Communications Decency Act Section 230 was too broad and whether it needed to be amended and cut back your protection as a social media company.

And so the requests from the government to take down specific posts and censor specific speakers, including some who aren't plaintiffs in this case, was accompanied by threats. This is one of the findings in this opinion.

So let's talk about significant encouragement. And here's a quote from the opinion: "Defendants used meetings and communications with social media companies to pressure those companies to take down, reduce, and suppress the free speech of American citizens." That's one of the findings.

And then another comment by the Court: "When a state has so involved itself in the private parties' conduct—" and the private parties here are the social media companies—"it cannot claim the conduct occurred as a result of private choice, even if the private party would have acted independently."

So I think this is going to be something that we're going to see a lot more about as this case evolves, is the extent to which these social media companies, which, as some have complained even in the case I mentioned, were jumping at the opportunity to do some of this behavior on their own, the extent to which the state's actions are the proximate cause, if you will, or otherwise had such an impact that they're inextricably intertwined in the outcome.

The Court also went into a couple of examples of coercion, and I mentioned one, but the Court found that some defendants—not all of them—made "explicit threats" social media companies to coerce content moderation decisions. Some defendants used threats to curtail immunity under Section 230, and the White House defendants, the Court found, we're faced with unrelenting pressure from the most powerful office in the world.

And the Court quoted from comments made by Jen Psaki from the White House Press Room and other incidents as well. And all of this came out of discovery in this case, so there was obviously extensive discovery exchanged now.

Now, I will say, as the Court notes in a footnote, that there was a, I think, 723-page opposition file to the factual findings in this case, but at the argument, notes the Court—I'm not clear from the record whether this is for purposes of the injunction or substantively—that the defendants dropped their objections to the evidence. I guess I'm going to assume for purposes of the injunction because this case is ongoing.

So here's the scope of the injunction. The Court granted the motion for a preliminary injunction and enjoined the government defendants who are before the Court for purposes of the injunction, which is not all the defendants, from meeting with social media companies for the purpose of censoring protected speech, from flagging content or posts, and then forwarding the post to social media companies for removal—so sort of a censorship machine inside the government then being transmitted to the social media companies and telling them to execute on these decisions made by the government—from encouraging or pressuring companies to change their guidelines or their terms of service with respect to content moderation.

And as an aside, I'll point that there was extensive pushback from the social media companies detailed in this opinion where the White House would say, "Please take down this post that causes vaccine hesitancy or what have you," and the social media companies would come back—Meta, Twitter—and say, "Hey, Government, that's actually not a violation of our content guidelines. You know, you may not like it." And then the government would say, "Well, we don't care. We've just moved the goalposts. You better take it down." So the companies were forced, according to the opinion, to change their guidelines to avoid government censorship or action.

Okay. So back to the opinion. The government was barred from requesting content reports from social media companies detailing the actions they took to remove, delete, and suppress content. So, in other words, the Court found that the social media companies were being obliged by the government to provide status reports on the government's demands for censorship, so going a little bit beyond helpful suggestions to really monitoring what actions these private entities took to comply.

And then they are also barred from notifying social media companies to BOLO, be on the lookout, for specific posts or types of posts. And finally, there was various other conduct that they were barred from doing directed towards social media companies intended to advance coordination, coercion, and censorship goals.

So what's so striking about this injunction is it's really the first time I can remember -- And Casey, you may have a different view, but I can't remember a Court ever telling the federal government to not communicate with social media companies on a fairly wide swath of content. Now, there are some exceptions in the injunction, and this is also going to get very interesting in the appeal.

The injunction contains specific exceptions for criminal activity; national security threats, which was the core initial function of CISA in the first place; criminal efforts to suppress voting; public safety. So I would say that's a huge loophole because a lot of the content that's at issue in this injunction is material having to do with COVID, vaccines, wearing masks, etc.

So the exception includes exercising permissible government speech promoting government policies or views on matters of public concern, so the government can express its own views; cybersecurity attacks; and removing or reducing content not protected by the First Amendment. So those exceptions are also as interesting, I think, as the injunction because it's going to be left to thousands of individuals in the government and in the social media companies on the other side as to what's protected or not protected by the First Amendment.

You know, Casey and I will tell you that even lawyers on our First Amendment and Election Law Group have wide differences of opinion on that, so you can imagine people who are not lawyers looking at that injunction and saying, "You know, this is going to be interesting. How do we comply?"

One of the most interesting outcomes of this opinion is that, from a procedural perspective, the Court denied all class certification in this case, and it went through the analysis of the four factors that you look at in class certification and determined that the plaintiffs could not possibly meet those. And so that was definitely a win for the defendants.

The defendants filed their appeal the very next day. And there's already been briefing in the Fifth Circuit on the scope of the injunction and standing and basic aspects of this opinion, that the Court then the Fifth Circuit that issued an administrative stay shortly thereafter and has ordered expedited briefing in this matter.

And there's going to be an argument on the motion for a stay of the injunction, so on the substance of that, on -- What did I say? August 23rd, Casey?

Casey Mattox:  Yeah. August 10th, I think it said.

Harmeet Dhillon:  August 10th. Yeah. I have it in my notes here. So there's a status report also filed by the parties in this case on July 18th, and the defendants have asked to waive filing an answer and postpone the rule 26(f) discovery conference until after the injunction is resolved.

The parties disagree about whether the district court proceedings should continue while the preliminary injunction appeal is pending, and if the district court proceedings continue in a parallel track with the injunction appeal, that will include defendants having to file an answer to the third amended complaint, the rule 26(f) discovery conference, timing of summary, judgment, motions, and so forth, and even a trial. I suspect we're going to get an opinion out of the court of appeals faster than any of that, given the expedited track that they put this appeal on the stay.

And so that's kind of the outline of where we are now. And I could go into any number of issues here, but I'll pause. I'm sure people have questions. Casey probably has questions. But some of the interesting issues here are the standing issues of the individual plaintiffs, as well as the state standing issues. And there have been some recent Supreme Court opinions. The Texas case involving border security is one that some would argue have gone in a different direction with respect to state standing.

Casey Mattox:  Yeah, and please do add your questions. We have at least one question already in the chat. You can use the Q&A function and add them there. I'll go ahead while we're waiting on other people to populate questions, which I'm sure people will have.

So one of the interesting things here, Harmeet, is that I think, probably as it almost always is when you deal with cases involving social media, there's some confusion about exactly what is happening out there in public, right?

So when you had cases dealing with whether the president could block people on Twitter, for example, people thought that the Court had held that Twitter was a state actor or something like that and you had some confusion around things like that.

I think one of the important things in this opinion is, as you said, the platforms themselves aren't actually parties to the case. And the Court goes out of its way several times to sort of note that the First Amendment applies to the government, not to the social media platforms in any case, and it's 155 pages focused on what the government did, not on the platforms themselves.

If anything, I think, actually -- So this will be part of my question to you. You know, we didn't go through the list of examples. Probably more than half of the 155 pages is who did what from what federal agency or from the White House directed at social media platforms.

One of the things that I thought was interesting in that was just how repeatedly there was this theme of government official pressure social media company. Very often, social media company pushes back to some degree against the government and says, "But that doesn't violate our policies." And then you have person from White House who says, "Oh, it doesn't? Well, then, maybe your policies are problematic, and maybe Section 230, we should be taking a look at that." And then, eventually, the platform would say, Okay, we've removed the content."

So it certainly looks kind of -- The focus is on the government, not on the platforms themselves, but curious if you had examples that you would point to, the most egregious examples or thoughts on that point.

Harmeet Dhillon:  Yeah, I have a laundry list here. I can really talk about this for hours, but, as you say, the opinion has dozens of pages of bullet points about examples here. So just one example that comes to mind is not a plaintiff, but it is Alex Berenson, a prominent commentator who, if you watched Fox News at the time, you would have seen him commenting extensively on vaccine efficacy and vaccine issues.

The White House demanded that -- One of these agencies demanded that he be removed from Twitter, and 45 minutes later, after that explicit demand, he was banned from Twitter. This is after some back and forth where Twitter said "Hey, you know what? You may not like that. It's not against our policies, what he just said."

And so, yeah, as you paraphrased it, Casey, there was a tone, not just from the White House, but from these other government agencies that I mentioned that, "Hey, nice social media company you have here. Sure would be unfortunate if something were to happen to it, like your 230 immunity were to be removed."

And there are no counter examples, actually, in the injunction where Twitter, Meta, one of these other companies said, "No, we're not going to do that. Go ahead. Make my day." And so I think that's pretty striking is that there were individuals in the White House and these other agencies who were the point people, and all day long, they were flagging content and communicating through a specific portal that was set up for that.

In fact, that social media companies at the beginning of the Biden administration were complaining, "Hey, guys, it's like 10 a.m. and we've already gotten four demands from different parts of your building on stuff to take down." So these companies were asked to create portals. The discovery materials include terms like partnership between the White House and the social media companies.

So I'll read from one paragraph of the opinion. "The White House defendants used emails, private portals, meetings, and other means to involve itself as 'partners' with the social media platforms. Many emails between the White House and social media companies refer to themselves as partners. Twitter even sent the White House a partner support portal for expedited review of the White House requests.

"Both the White House and the social media companies—" so that's a reference to that side of the table—"refer to themselves as partners and on the same team in their efforts to censor disinformation, such as their efforts to censor vaccine hesitancy spread. The White House and the social media companies also demonstrated they were partners by suppressing information that did not even violate the social media company's own policies."

So, in all the commentary publicly that you've seen over the last three years on this issue of social media censorship by the companies, one of the biggest complaints has been a lack of notice.

Normally, when you're doing business with a company, like your car company or your mortgage, there's a contract and there's specific terms there, and if you stay on your side of the contract, you pay your mortgage on time or you get insurance for your property, they got to stay out of your business other than that.

But one of the most frequent complaints on this issue has been, "I was taken off of Twitter or "I was censored for my speech" for something that isn't even enumerated in the terms of service or public commentary of these companies. And so now we look behind the curtain and we see the other side of that, which is that the government was demanding it, and so I think all of that has been very interesting to see.

Casey Mattox:  Yeah, I think you have a -- I've liked this quote when the Court rejects the conspiracy theory in this case, later down in the opinion, the Court writes that "The evidence thus far shows that the social media companies cooperated due to coercion, not because of a conspiracy" with a pretty direct finding from the Court.

Harmeet Dhillon:  Can I add one more point here?

Casey Mattox:  Sure. Yeah.

Harmeet Dhillon:  And so the defendants obviously had their day in court as well, and here's an interesting quote from the Court: "While not admitting any fault in the suppression of free speech, defendants blame the Russians, COVID-19, and capitalism for any suppression of free speech by social media companies. Defendants argue the Russian social media postings prior to the 2016 election caused social media companies to change their rules with regard to alleged misinformation." So that's pretty much the Court's opinion of the government's defense; it was not persuasive.

Casey Mattox:  Yeah, I did have to laugh at that line when I read that in the opinion because it goes to this causality question, right? The government there is attempting to argue that, "Look, it's not our fault that these platforms started doing things. They did it because of all of these other reasons," right?

So one of the interesting things there is, I guess the government defendants had also said, "Well, look, all this stuff about removing Section 230 protections and things like that, that's not just an us thing; it's Republicans too."

And the Court sort of flips that back around and says essentially that the fact that there was any kind of bipartisan support for amending Section 230 actually made that threat more real because, when the Biden ministration was telling platforms, essentially, "Who will rid me of this meddlesome post," when they were making that that threat and suggesting that Section 230 could be on the chopping block, it actually meant something because there was at least some degree of bipartisan support for the idea of doing something to change Section 230.

Harmeet Dhillon:  Absolutely, and you see that from the behavior of the companies. The companies thought, "Hey, one of the two political parties is going to back us up, and they happen to be having a majority," or they've got a couple of buddies on the Democrat side who aren't going to do this to us. But for different reasons, both parties have been talking about cutting back on Section 230. I'm a person who's argued in favor of that, cutting it back, not eliminating it.

So it was a very real threat. And the elimination of 230, some would argue, without replacing it with some more narrowly tailored protections scheme for speech on the internet posted by third parties would be an existential threat to the existence of the social media companies.

And so when the White House is telling you, "Hey, you better do this or else," we can see the results. The results are that thousands upon thousands, an innumerable number, an as-yet-unknown number of speakers, and posts have been removed from view, which again, according to the opinion, harmed, of course, the individual plaintiffs, but also the citizens of the states.

Casey Mattox:  All right. I'm going to ask one more question, and then I'm going to turn to the questions here in the Q&A, so if you haven't gotten your question in, please do that.

I think the other piece of this -- So, as challenging is a case like this is -- because it's pretty novel. It's a pretty different kind of First Amendment case than we are used to. You have a whole separate set of other First Amendment problems that get raised with the injunction itself, or potential First Amendment problems, right.

And that is everything from, "But what about the free speech rights of government employees," right? So the President himself is both always acting as a government figure is; he's also a guy named Joe Biden who has First Amendment rights. And so when does Joe Biden complaining aloud about these lies about me on Twitter or something, when does that go from, "Well, he has a right to say that as a private citizen who's also being paid" and switch over to "This is now the president pressuring"?

Then the other problem that Daphne Keller and others who have raised—and she had a good tweet thread on this—was the fact that the injunction sets this up as -- or the Court's opinion sets this up is basically, the government is going to be enjoined from pressuring social media companies to remove protected speech, but you kind of raised this in your opening comments.

The injunction actually then exempts a lot of things that would be protected speech and, as a matter of fact, some of the things that are directly the thing at issue here. There's not a First Amendment exception for things that affect public health, for example, or public safety.

And so curious for your thoughts on that big question of, what can a Court do going forward with this injunction? Is it possible to actually craft an injunction that actually stops the government from coercing social media platforms only in ways that remove protected speech without, at the same time, infringing First Amendment rights of government employees to speak privately?

Harmeet Dhillon:  So on that last point and the point about Joe Biden as a private citizen, we have to really stretch our memories to think about him actually being a private citizen.

Casey Mattox:  If he's ever had a time when that has happened in a long time. Yeah, it's been a long time.

Harmeet Dhillon:  But I digress. Yeah. But actually, this is something that I looked at, and I think the injunction's specific language is unclear about the distinction; however, these individuals from the government were sued in their official capacities. And so I think if there were a clarification to come out of the Fifth Circuit or if anyone's truly confused about that—which I doubt, but it is something that can be clarified in future rulings—that of course they have individual rights and individual opinions.

And if they happen to be at a cocktail party and they have a buddy who works at Meta, can they say, "Gosh, I wish you would have less commentary about Barbie or what have you on your platform," and is that going to be a violation of this injunction? No, I don't think so in common-sense terms.

I think this is really -- And I think the Court makes this clear. The objectionable conduct was accompanied by police power, by coercive power of the government. And so I don't think the Court opinion goes far afield from that, but that could be clarified.

I think that the injunction could probably be tightened up. I like the general direction that the Court went with it, but I do think that, just being objective here, the injunction prohibits a significant amount of communication between the government and social media platforms. It makes broad categorical buckets and it prohibits all the content in those buckets, and then there's a couple of loopholes.

The problem with that in the First Amendment world, of course, is that where you have broad prohibitions or broad language as opposed to more narrowly tailored language, there is a potential to chill protected speech, and the government has protected speech as well. And so that's a concern.

And then there's, of course, just the procedural idea that, in injunction analysis, the injunction must be as narrowly tailored as possible to protect the plaintiffs without harming legitimate behavior of the defendants. So what that legitimate behavior is, I think, will be something that perhaps the defendants will flesh out some examples of.

Again, just to play devil's advocate, we're probably not going to see a lot of stuff from the government saying, "Well, here was a Russian actor, and here's his name and here's his handle. And this is what he did, and we want to be able to do that" because some of that is presumably national security stuff.

And I can fully agree and, indeed, on my own social media, I've observed that there certainly actors on there who are acting on behalf of a foreign government and not labeling it as such. So the government needs to be able to do that, and that's allowed by this injunction, but the contours could be clarified. I could see that happening.

The enumerated list of exceptions—national security, public safety, voter intimidation, etc.—renders the injunction under inclusive, according to some, and potentially viewpoint discriminatory on its own basis. And so these were the examples of the plaintiffs brought to the court, and they happened to deal with some very modern Vogue issues.

But how does a Court or the government, on one hand, or the social media companies, on the other hand, interpret that list when next year's election is likely to have its own issues, different foreign actors? Maybe there's some other disease sweeping the land or the world, and what's allowed in that?

So I think it doesn't give a lot of guidance as to the future because COVID and Russia aren't necessarily going to be the issues next year or 10 years from now. So we have to have probably some framework from which to analyze what's in and what's out.

The exceptions to the injunction are very broad, and defendants could use them to continue their censorship practices. That's a criticism of the exceptions to the injunction. You could shoehorn a lot of conduct into public safety and lying about Russia.

Casey Mattox:  National security.

Harmeet Dhillon:  Right. And then, if the defendants can categorize their targeted speech as anything falling into an exception, they can continue unabated. And as we've seen, the government has both police power, a lot of money, a lot of people, and can be very creative in finding ways to use a portal that now only covers the loophole categories, but that itself covers a lot of behavior. And so this injunction, while I think is meritorious overall, has the potential to be quite toothless if those exceptions are not policed; that is, if the injunction stands at the Fifth Circuit.

Casey Mattox:  All right. Well, let's tick through some of these questions here. Rod Sullivan asked about whether the FTC -- There was a suggestion that basically the use of the FTC against platforms is kind of a threat. I think there's only a one brief mention of the FTC in the opinion, but there is a lot of mention of the potential for antitrust as an open threat against the platform, so I think that's basically where that where that would live is, essentially in addition to possibly Section 230, maybe Lena Khan may have some thoughts about your platform if you don't remove some content that we would like removed.

Harmeet Dhillon:  Yeah. I would agree with that. I would add that, in real life, today's commentary in the legal press this morning when I woke up here on the West Coast was Lena Khan and the FTC have been relatively ineffective on the antitrust front with respect to social media companies, I think. But the threat is obviously, again, a fairly existential one for the social media companies, and it is one of the threats that was wielded by the government. 

Casey Mattox:  Right. Someone asks about the other forms of relief that are requested here. Obviously, the injunction is what's getting all the attention. Is there a damage claim in the case or anything more than nominal?

Harmeet Dhillon:  Let me see if I can pull that up. I don't think so. I was focusing more on some of this other -- Let me see here. The Court didn't mention that, and so I cannot say whether the third amended complaint, off the top of my head, includes a damages component. The Court does note the case is still relatively young, and at this stage, the Court is only examining it in terms of the injunctive factors. But the evidence thus far depicts an almost dystopian scenario, so I don't know about the damages part of this. It's not covered by the injunction.

Casey Mattox:  And we have a couple of questions about the current status. There's no real opinion that came with the administrative stay, just sort of a note that the Court was entering the administrative stay and the plan for the accelerated timeframe going forward. Do you want to offer any of the other examples of evidence of coercion the Court went through? 

Harmeet Dhillon:  Sure. Yeah. I have pages of them.

Casey Mattox:  So you have antitrust and Section 230 were both openly suggested.

Harmeet Dhillon:  Yeah. Let's see. Well, here's an interesting, to me, aspect of what happened here at the government, and this is for the administrative law geeks out there. Many of the allegations in the complaint that aren't part of the injunction are violations of the Administrative Procedure Act that, effectively, there was lawmaking that happened without public comment by numerous agencies.

And so the claim spawned the allegations are against buckets of government agencies. And so what I find very interesting is the extent to which our federal government used nonprofits or NGOs or public-private partnerships that they created to censor with the specific intent of having it not be the government doing it. So I think that was very interesting.

So I'll give you a quote from the Court. At oral arguments on May 26, 2023, the defendants argued that the EIP—the Election Integrity Partnership, I think is what that's called—operated independently of any government agency, but the evidence shows otherwise. The EIP was started when CISA interns came up with the idea.

CISA connected the EIP with the CIS, which is a CISA-funded nonprofit that channeled reports of misinformation from state and local government officials, to the social media companies. CISA had meetings with the Stanford Internet Observatory Officials, which is a part of the EIP, and both agreed to work together.

The EIP gave briefings to the CISA and the CIS. And then I'm just going to bore you with a lot of acronyms, but the point is that, to avoid being called government action, the government went out of its way to create allied alphabet nonprofits that effectively did the dirty work, and then tried to distance themselves that way. That's actually quite fascinating and I'm sure will be the subject of a lot more discovery in other lawsuits now that it's been revealed.

Casey Mattox:  Yeah. I think this opinion really -- I spent a lot of my time both in the administrative state issues and in the free speech issues, and this is this perfect blend of the two. I was left reading this opinion feeling like so much of the answer to this is addressing the problem of the administrative state.

Like you said, it's an APA question. There's a lot of people that sit around in administrative agencies who have a lot of levers of power to pull that have nothing to do with an actual grant of authority from Congress, from elected office, right?

Harmeet Dhillon:  And it's down to interns. Interns are mentioned, interns who came up with lists of things to be censored. Who elected the Stanford Internet Observatory to censor your speech on Twitter and Facebook through the government? Nobody did. That's the answer. And so that part really needs to be -- I'm interested to see how the Court handles that in the ultimate rulings on these issues.

Casey Mattox:  So there's one question here about the impact of this on state efforts. And I know there was a -- I can't remember if it was someone in Minnesota, I think the Oregon Secretary of State Office also, but basically, I think the government official in Minnesota basically said, "Well, that doesn't apply to states because we don't have the same --"

I'm paraphrasing here, and probably unfairly, but essentially, the argument was "We don't have the same levers of power. We don't have a Section 230 or anything to threaten platforms with; therefore, we can coerce them because we don't have the same levers of power."

So the injunction covers the defendants. It doesn't cover other people, including state officials, but I think the same principles would apply if -- It's one thing for a state official or for a federal official, for that matter, to flag that, "Hey, we think that this thing that's on your platform is in violation of your policies or untrue or whatever." It's another thing for you to actually coerce the platforms to act.

And I think if this decision was actually binding on a state, then I think the same principles would apply, assuming that the state had some sort of ability to coerce in some way. And at the same time, if the federal government wasn't coercing, if you had federal government officials who were sharing information, it's the coercion that became the First Amendment problem here and not the communication itself necessarily.

Harmeet Dhillon:  So let me comment on that. So, first of all, Exhibit A is the lawsuit that we did bring against the State of California, O'Handley v. Padilla. And then the allegation there was that the state tax dollars were used to fund the Secretary of State of California doing the same thing that the federal government is accused of doing here: drawing up lists of offensive speech, sending them through a portal to Twitter, and Twitter taking down 98, 99 percent of those.

And so of course states have coercive power. California would be the biggest example with social media companies. They are taxed there. Their headquarters are there. They have jurisdiction through terms of service contracts. So litigation occurs in these states. Regulation occurs in these states. Tax breaks occur in San Francisco, where I'm sitting right now, for the big social media companies.

And so what the government gives at any level, the government can take away, and so there's tremendous power at the state and local levels over corporations that have employees, headquarters, tax base, tax breaks in these areas. And so I think that there's plenty of scope for one to find police power at every level, but that's not the subject of this particular case.

And in the case I mentioned, we never got to the discovery phase as yet in that case. And so the plaintiffs in this case were able to get some fascinating discovery that other plaintiffs have not been able to get, and what it shows is pretty disturbing.

Casey Mattox:  So we have another question here from Robert Fitzpatrick. He said, Coercion, I assume, requires that there be a threat. The 230 threat seems way beyond the possible. Does not the threat have to be within the realm of the possible?" I'll give you my thought there.

I think it doesn't have to be that there is a more likely than not standard or something like that where it would apply in part because -- I think maybe the antitrust is an even easier way to be able to see this, at least in my view. I think that there may be a small chance that an antitrust argument against Facebook, for example, would be successful in Court, but I think the threat is the complaint itself and the expense and the difficulty that you will have to go through to be able to fight that lawsuit.

I would think of that as a -- Were I the company, I would see that as a threat before you even got to the possibility that you will lose this lawsuit and we will force Facebook to divest itself of Instagram or WhatsApp or anything else.

Harmeet Dhillon:  Right. I would agree with that, and I would say that, when you look at First Amendment analysis, there's a concept of a chilling effect, right? And so, in your example, if there's a 5 percent chance that an antitrust analysis can be brought to bear that breaks up Meta and divests it of Instagram and other, from a shareholder perspective, you have to take that threat seriously. There's an impact to the shareholder value of the company, so I think that's a pretty serious threat.

But the Court itself addresses the 230 issue, noting that there's been bipartisan support for getting rid of 230 or severely editing it from the opposite political perspective. On the left, Senators Warren and others have said, "Well, you aren't doing enough to combat hate speech, and whatever," and on the right, "You guys are censoring too much and you're using Russia as a boogeyman to censor everything."

And so I think it is very real that changes could be made, and it's certainly something that a company has to take seriously. But the Court has many other examples. There's some vague threats. There's public shaming from the White House Press Secretary. Again, if you're a CEO or somebody in the C-suite, you have obligations to your shareholders. You have obligations to not run afoul of the law and spin your wheels. You're trying to grow your company, so the White House calling you out on a daily basis is a problem for any company.

Casey Mattox:  The Court points to the fact that President Biden, at one point, said that Facebook was killing people and used that term.

Harmeet Dhillon:  Yes.

Casey Mattox:  And, obviously, there's email evidence that the Court recites that demonstrates that people at Facebook were very displeased about that fact and saw it the way Harmeet described it as, this is very, very bad for the public reputation of the company for the president to be going out saying that we are killing people because of the content that other people are posting on the platform if we don't remove it.

And so that that itself is sort of, "If you don't act in the way we want you to act, we're going to use the bully pulpit to create other problems for you" was itself part of the list of, essentially threats.

Harmeet Dhillon:  Well, and let's look at the fact that the FBI is one of the agencies that's sued here in this case. Imagine that FBI tells you, "Hunter Biden laptop story is fake. We've determined it's fake. Take it down. Well, Twitter says, "Well, I don't want to." Do you want to find yourself on the receiving end of a grand jury subpoena or agents storming your headquarters in San Francisco and taking away boxes? Bad for shareholder value, bad for business, bad all around.

And so, generally speaking, companies—in fact, all of them in the examples in this Court's opinion—took the path of least resistance after initially resisting and did what the government asked them to do, so that itself was quite powerful evidence, that there was a back and forth, and then ultimately, they succumbed.

Casey Mattox:  Some other good questions here. I'll synthesize these. You know, I think the last two questions just been posed really flag this very real problem, why this is a very unique case. One is, if the threat of legislation can be coercion, how can any legislature pass a bill to address an issue that isn't already being solved by the private sector, right?

Because as the legislation itself -- Once you start proposing legislation, you're now -- Legislators began to talk about, "If the private sector isn't going to solve specific actors and the private sector aren't going to solve this problem, we will" sort of thing. And I think it's a legitimate question. I think the challenge here, in my view, is that, on one hand, you have the reality that it's pretty bedrock constitutional law that the government can't do indirectly what it can't do directly.

So if the government can't censor you, it can't pressure people to censor you and just get away with that, I think it looks really messy in practice. And this case is a good demonstration of that. It's very easy to see problems.

Harmeet, I guess I'll ask this as the last question, because I know we're coming up on time, but where do you think this goes from here? The Fifth Circuit is going to hear the state motion, and then what do you think happens?

Harmeet Dhillon:  All right. So I think that there's a good chance that there is some tinkering with the scope of the injunction, tightening it up, maybe tightening up definitions, if it stands, definitions of the exceptions as well. And I think that's probably necessary to avoid chilling protected speech or prohibiting protected speech.

But, ultimately, what's different about this case and other cases is discovery, and discovery has revealed a huge volume of evidence supporting the Court's opinion. And I think the Court -- You know, I've seen some mockery online that "Oh, is released on July 4th, and that's a Court trying to gain attention for itself."

I would respectfully suggest that if you read -- And this is not the Court pontificating; this is a court quoting from discovery in this case, and discovery in this case shows a huge amount of behavior that most Americans were not aware of. I was not aware of the extent to which all these federal agencies were actually putting in writing a swath of censorship requests. That is problematic.

Like you said, they cannot censor us through third parties. That's prohibited under the First Amendment, and if it isn't prohibited under the First Amendment, then my understanding of the First Amendment is very different, I think, then. And I think the Founders would say, if King George were using the tax authorities to censor us, that'd be problematic, right? And so the whole thrust of the First Amendment is to protect us from government censorship.

Now, like I said, my experience has been, at least without knowing all of this evidence, the social media companies, which we mock as woke, I mock as woke, and left wing, and I've sued them on other issues, employment issues, they seemed all too willing to do this. I now know that there was a lot of pushback by these companies.

And so where is that line of what they would have done on their own versus what the government would have made them do? I think you're going to see more litigation about that, frankly. So I think this is a seminal case so far, but I think it is going to spur a lot of collateral litigation because what we have seen is a lot of plaintiffs are learning through this process and through the work of the Weaponization Committee and Congress that they were censored.

I've learned that people I know, clients of mine, have been censored. And so I think there's going to be a lot more litigation, and we're going to end up having years of litigation over the scope of what the government can do to protect us from legitimate threats while not suppressing our First Amendment protected speech.

Casey Mattox:  Sam, I'll invite you back.

Sam Fendler:  Wonderful. Thank you very much, Casey, and thank you, Harmeet, for giving us such a great analysis. Casey, thank you for facilitating such a great discussion. And I want to thank our audience as well for joining us. We greatly appreciate your participation. Please check out our website, fedsoc.org, or you can follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in, and we are adjourned.

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