Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 1 of 155 PageID #:
26792

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF LOUISIANA
MONROE DIVISIONSTATE OF MISSOURI, ET AL.

CASE NO. 3:22-CV-01213

VERSUSJUDGE TERRY A. DOUGHTYJOSEPH R. BIDEN JR., ET AL.

MAG. JUDGE KAYLA D. MCCLUSKYMEMORANDUM RULING ON REQUESTFOR PRELIMINARY INJUNCTION
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

Plaintiffs consist of the State of Missouri, the State of Louisiana, Dr. Aaron Kheriaty (“Kheriaty”), Dr. Martin
Kulldorff (“Kulldorff”), Jim Hoft (“Hoft”), Dr. Jayanta Bhattacharya (“Bhattacharya”), and Jill Hines (“Hines”).
1

Defendants consist of President Joseph R Biden (“President Biden”), Jr, Karine Jean-Pierre (“Jean-Pierre”), Vivek
H Murthy (“Murthy”), Xavier Becerra (“Becerra”), Dept of Health & Human Services (“HHS”), Dr. Hugh
Auchincloss (“Auchincloss”), National Institute of Allergy & Infectious Diseases (“NIAID”), Centers for Disease
Control & Prevention (“CDC”), Alejandro Mayorkas (“Mayorkas”), Dept of Homeland Security (“DHS”), Jen
Easterly (“Easterly”), Cybersecurity & Infrastructure Security Agency (“CISA”), Carol Crawford (“Crawford”),
United States Census Bureau (“Census Bureau”), U. S. Dept of Commerce (“Commerce”), Robert Silvers (“Silvers”),
Samantha Vinograd (“Vinograd”), Ali Zaidi (“Zaidi”), Rob Flaherty (“Flaherty”), Dori Salcido (“Salcido”), Stuart F.
Delery (“Delery”), Aisha Shah (“Shah”), Sarah Beran (“Beran”), Mina Hsiang (“Hsiang”), U. S. Dept of Justice(“DOJ”), Federal Bureau of Investigation (“FBI”), Laura Dehmlow (“Dehmlow”), Elvis M. Chan (“Chan”), Jay
Dempsey (“Dempsey”), Kate Galatas (“Galatas”), Katharine Dealy (“Dealy”), Yolanda Byrd (“Byrd”), Christy Choi(“Choi”), Ashley Morse (“Morse”), Joshua Peck (“Peck”), Kym Wyman (“Wyman”), Lauren Protentis (“Protentis”),
Geoffrey Hale (“Hale”), Allison Snell (“Snell”), Brian Scully (“Scully”), Jennifer Shopkorn (“Shopkorn”), U. S. Food
& Drug Administration (“FDA”), Erica Jefferson (“Jefferson”), Michael Murray (“Murray”), Brad Kimberly(“Kimberly”), U. S. Dept of State (“State”), Leah Bray (“Bray”), Alexis Frisbie (“Frisbie”), Daniel Kimmage(“Kimmage”), U. S. Dept of Treasury (“Treasury”), Wally Adeyemo (“Adeyemo”), U. S. Election AssistanceCommission (“EAC”), Steven Frid (“Frid”), and Kristen Muthig (“Muthig”).
3[Doc. No. 252]
4
[Doc. No. 256]5[Doc. No. 262]
21

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 2 of 155 PageID #:
26793

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 VoltaireThis 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 aretrue, the present case arguably involves the most massive attack against free speech in UnitedStates’ history. In their attempts to suppress alleged disinformation, the Federal Government, andparticularly 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 ofany 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., 89 S. Ct. 1794, 1806
(1969).
Plaintiffs allege that Defendants, through public pressure campaigns, private meetings, andother 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 violation2

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 3 of 155 PageID #:26794

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 freedomof speech, or of the press; or the right of the people peaceably toassemble, and to petition the Government for a redress ofgrievances. (emphasis added).
First Amendment, U.S. Const. amend. I.
The principal function of free speech under the United States’ system of government is toinvite 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,
109 S. Ct. 2533, 2542–43 (1989). Freedom of speech and press is the indispensable condition ofnearly every other form of freedom. Curtis Pub. Co. v. Butts, 87 S. Ct. 1975, 1986 (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 amatter, 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, anddumb 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 bysubduing 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
3

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 4 of 155 PageID #:26795

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-authorsof 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 censoredon 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 becauseof his tweets with content such as “thinking everyone must be vaccinated is scientifically flawed,”

6[Doc. No. 10-3 and 10-4]4Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 5 of 155 PageID #:
26796

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 roundtablediscussion in Florida where he and others questioned the appropriateness of requiring young
children to wear facemasks.9 Dr. Kulldorff also alleges that LinkedIn censored him when hereposted a post of a colleague from Iceland on vaccines, for stating that vaccine mandates weredangerous, for posting that natural immunity is stronger than vaccine immunity, and for postingthat health care facilities should hire, not fire, nurses.10
Plaintiff Jill Hines is Co-Director of Health Freedom Louisiana, a consumer and humanrights advocacy organization. Hines alleges she was censored by Defendants because she
advocated against the use of masks mandates on young children. She launched an effort called“Reopen Louisiana” on April 16, 2020, to expand Health Freedom Louisiana’s reach on social
media. Hines alleges Health Freedom Louisiana’s social-media page began receiving warnings
from Facebook. Hines was suspended on Facebook in January 2022 for sharing a display boardthat contained Pfizer’s preclinical trial data.11 Additionally, posts about the safety of masking andadverse events from vaccinations, including VAERS data and posts encouraging people to contact
their legislature to end the Government’s mask mandate, were censored on Facebook and othersocial-media platforms. Hines alleges that because of the censorship, the reach of Health Freedom
Louisiana was reduced from 1.4 million engagements per month to approximately 98,000. Hines
also alleges that her personal Facebook page has been censored and restricted for posting content

7[Doc. No. 10-4][Doc. No. 10-3]
9
[Id.]
10
[Id.]
11
[Doc. No. 10-12]85Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 6 of 155 PageID #:
26797

that is protected free speech. Additionally, Hines alleges that two of their Facebook groups, HFL
Group and North Shore HFL, were de-platformed for posting content protected as free speech.12
Plaintiff Dr. Kheriaty is a psychiatrist who has taught at several universities and written
numerous articles. He had approximately 158,000 Twitter followers in December 2021 andapproximately 1,333 LinkedIn connections. Dr. Kheriaty alleges he began experiencing censorshipon Twitter and LinkedIn after posting content opposing COVID-19 lockdowns and vaccine
mandates. Dr. Kheriaty also alleges that his posts were “shadow banned,” meaning that his tweets
did not appear in his follower’s Twitter feeds. Additionally, a video of an interview of Dr. Kheriaty
on the ethics of vaccine mandates was removed from YouTube.13
Plaintiff Jim Hoft is the owner and operator of The Gateway Pundit (“GP”), a news website
located in St. Louis, Missouri. In connection with the GP, Hoft operates the GP’s social-media
accounts with Twitter, Facebook, YouTube, and Instagram. The GP’s Twitter account previously
had over 400,000 followers, the Facebook account had over 650,000 followers, the Instagram
account had over 200,000 followers, and the YouTube account had over 98,000 followers.
The GP’s Twitter account was suspended on January 2, 2021, again on January 29, 2021,
and permanently suspended from Twitter on February 6, 2021. The first suspension was inresponse to a negative post Hoft made about Dr. Fauci’s statement that the COVID-19 vaccine
will only block symptoms and not block the infection. The second suspension was because of apost Hoft made about changes to election law in Virginia that allowed late mail-in ballots without
postmarks to be counted. Finally, Twitter issued the permanent ban after the GP Twitter accountposted video footage from security cameras in Detroit, Michigan from election night 2020, whichshowed two delivery vans driving to a building at 3:30 a.m. with boxes, which were alleged to

12
13

[Id.]
[Doc. No. 10-7]

6Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 7 of 155 PageID #:26798

contain election ballots. Hoft also alleges repeated instances of censorship by Facebook, including
warning labels and other restrictions for posts involving COVID-19 and/or election integrity issues
during 2020 and 2021.
Hoft further alleges that YouTube censored the GP’s videos. YouTube removed a May 14,2022 video that discussed voter integrity issues in the 2020 election. Hoft has attached as exhibits
copies of numerous GP posts censored and/or fact checked. All of the attached examples involve
posts relating to COVID-19 or the 2020 election.
In addition to the allegations of the Individual Plaintiffs, the States of Missouri andLouisiana allege extensive censorship by Defendants. The States allege that they have a sovereign
and proprietary interest in receiving the free flow of information in public discourse on socialmedia platforms and in using social-media to inform their citizens of public policy decisions. The
States also claim that they have a sovereign interest in protecting their own constitutions, ensuring
their citizen’s fundamental rights are not subverted by the federal government, and that they havea quasi-sovereign interest in protecting the free-speech rights of their citizens. The States allege
that the Defendants have caused harm to the states of Missouri and Louisiana by suppressing
and/or censoring the free speech of Missouri, Louisiana, and their citizens.
The Complaint,14 Amended Complaint,15 Second Amended Complaint,16 and Third
Amended Complaint17 allege a total of five counts. They are:Count One – Violation of the First Amendment against all
Defendants.
Count Two – Action in Excess of Statutory Authority against all
Defendants.

14[Doc. No. 1][Doc. No. 45]
16[Doc. No. 84]
17[Doc. No. 268]
15

7

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 8 of 155 PageID #:26799

Count Three – Violation of the Administrative Procedure Act
against HHS, NIAID, CDC, FDA, Peck, Becerra, Murthy,
Crawford, Fauci, Galatas, Waldo, Byrd, Choi, Lambert, Dempsey,
Muhammed, Jefferson, Murry, and Kimberly.
Count Four – Violation of the Administrative Procedure Act against
DHS, CISA, Mayorkas, Easterly, Silvers, Vinograd, Jankowicz,
Masterson, Protentis, Hale, Snell, Wyman, and Scully.
Count Five – Violation of the Administrative Procedure Act against
the Department of Commerce, Census Bureau, Shopkorn, Schwartz,
Molina-Irizarry, and Galemore.
Plaintiffs also ask for this case to be certified as a class action pursuant to Federal Rules of Civil
Procedure 23(a) and 23(b)(2). For the reasons discussed herein, it is only necessary to addressCount One and the Plaintiffs’ request for class action certification in this ruling.
The following facts are pertinent to the analysis of whether or not Plaintiffs are entitled to
the granting of an injunction.18
Plaintiffs assert that since 2018, federal officials, including Defendants, have made publicstatements and demands to social-media platforms in an effort to induce them to censor disfavored
speech and speakers. Beyond that, Plaintiffs argue that Defendants have threatened adverse
consequences to social-media companies, such as reform of Section 230 immunity under theCommunications Decency Act, antitrust scrutiny/enforcement, increased regulations, and othermeasures, if those companies refuse to increase censorship. Section 230 of the Communications
Decency Act shields social-media companies from liability for actions taken on their websites, andPlaintiffs argue that the threat of repealing Section 230 motivates the social-media companies tocomply with Defendants’ censorship requests. Plaintiffs also note that Mark Zuckerberg

The Factual Background is this Court’s interpretation of the evidence. The Defendants filed a 723-page Response
to Findings of Fact [Doc. No. 266-8] which contested the Plaintiffs’ interpretation or characterizations of the evidence.
At oral argument, the Defendants conceded that they did not dispute the validity or authenticity of the evidence
presented.
188

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 9 of 155 PageID #:26800(“Zuckerberg”), the owner of Facebook, has publicly stated that the threat of antitrust enforcement
is “an existential threat” to his platform.19
A. White House Defendants20
Plaintiffs assert that by using emails, public and private messages, public and private
meetings, and other means, the White House Defendants have “significantly encouraged” and“coerced” social-media platforms to suppress protected free speech posted on social-media
platforms.
(1)

On January 23, 2021, three days after President Biden took office, Clarke

Humphrey (“Humphrey”), who at the time was the Digital Director for the COVID-19 Response
Team, emailed Twitter and requested the removal of an anti-COVID-19 vaccine tweet by Robert
F. Kennedy, Jr.21 Humphrey sent a copy of the email to Rob Flaherty (“Flaherty”), former Deputy
Assistant to the President and Director of Digital Strategy, on the email and asked if “we can keep
an eye out for tweets that fall in this same genre.” The email read, “Hey folks-Wanted to flag the
below tweet and am wondering if we can get moving on the process of having it removed ASAP.”22(2)

On February 6, 2021, Flaherty requested Twitter to remove a parody accountlinked to Finnegan Biden, Hunter Biden’s daughter and President Biden’s granddaughter. The
request stated, “Cannot stress the degree to which this needs to be resolved immediately,” and“Please remove this account immediately.”23 Twitter suspended the parody account within fortyfive minutes of Flaherty’s request.

19[Doc. No. 212-3, citing Doc. No. 10-1, at 202]
White House Defendants consists of President Joseph R. Biden (“President Biden”), White House Press Secretary
Karine Jean-Pierre (“Jean-Pierre”), Ashley Morse (“Morse”), Deputy Assistant to the President and Director of Digital
Strategy Rob Flaherty (“Flaherty”), Dori Salcido (“Salcido”), Aisha Shah (“Shah”), Sarah Beran (“Beran”), Stuart F.
Delery (“Delery”), Mina Hsiang (“Hsiang”), and Dr. Hugh Auchincloss (Dr. Auchincloss”)
21[Doc. No. 174-1, Exh. A. at 1]
22[Id. at 2]
23[Doc. No. 174-1, Exh. A. at 4]20

9Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 10 of 155 PageID #:
26801

(3)

On February 7, 2021, Twitter sent Flaherty a “Twitter’s Partner Support Portal” forexpedited review of flagging content for censorship. Twitter recommended that Flaherty designate
a list of authorized White House staff to enroll in Twitter’s Partner Support Portal and explainedthat when authorized reporters submit a “ticket” using the portal, the requests are “prioritized”
automatically. Twitter also stated that it had been “recently bombarded” with censorship requests
from the White House and would prefer to have a streamlined process. Twitter noted that “[i]n agiven day last week for example, we had more than four different people within the White Housereaching out for issues.”24(4)

On February 8, 2021, Facebook emailed Flaherty, and Humphrey to explain how it

had recently expanded its COVID-19 censorship policy to promote authoritative COVID-19
vaccine information and expanded its efforts to remove false claims on Facebook and Instagram
about COVID-19, COVID-19 vaccines, and vaccines in general. Flaherty responded within
nineteen minutes questioning how many times someone can share false COVID-19 claims before
being removed, how many accounts are being flagged versus removed, and how Facebook handles“dubious,” but not “provably false,” claims.25 Flaherty demanded more information fromFacebook on the new policy that allows Facebook to remove posts that repeatedly share thesedebunked claims.
(5)

On February 9, 2021, Flaherty followed up with Facebook in regard to its COVID-

19 policy, accusing Facebook of causing “political violence” spurred by Facebook groups by
failing to censor false COVID-19 claims, and suggested having an oral meeting to discuss theirpolicies.26 Facebook responded the same day and stated that “vaccine-skeptical” content does not

24[Doc. No. 174-1 at 3][Id. at 5–8]
26
[Id. at 6–8]
25

10Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 11 of 155 PageID #:26802

violate Facebook’s policies.27 However, Facebook stated that it will have the content’s“distribution reduced” and strong warning labels added, “so fewer people will see the post.”28 In
other words, even though “vaccine-skeptical” content did not violate Facebook’s policy, thecontent’s distribution was still being reduced by Facebook.
Facebook also informed Flaherty that it was working to censor content that does not violate
Facebook’s policy in other ways by “preventing posts discouraging vaccines from going viral on
our platform” and by using information labels and preventing recommendations for Groups, Pages,
and Instagram accounts pushing content discouraging vaccines. Facebook also informed Flahertythat it was relying on the advice of “public health authorities” to determine its COVID-19
censorship policies.29 Claims that have been “debunked” by public health authorities would be
removed from Facebook. Facebook further promised Flaherty it would aggressively enforce the
new censorship policies and requested a meeting with Flaherty to speak to Facebook’s
misinformation team representatives about the latest censorship policies.30 Facebook also
referenced “previous meetings” between the White House and Facebook representatives during
the “transition period” (likely referencing the Biden Administration transition). 31(6)

On February 24, 2021, Facebook emailed Flaherty about “Misinfo Themes” tofollow up on his request for COVID and vaccine misinformation themes on Facebook. Some of
the misinformation themes Facebook reported seeing were claims of vaccine toxicity, claims about
the side effects of vaccines, claims comparing the COVID vaccine to the flu vaccine, and claims
downplaying the severity of COVID-19. Flaherty responded by asking for details about

27

[Id.]
[Id.]
29
[Id.]
30
[Id. at 6]
31[Id. at 5]28

11

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 12 of 155 PageID #:26803

Facebook’s actual enforcement practices and for a report on misinformation that was not censored.
Specifically, his email read, “Can you give us a sense of volume on these, and some metrics aroundthe scale of removal for each? Can you also give us a sense of misinformation that might be fallingoutside your removal policies?”32 Facebook responded that at their upcoming meeting, they “candefinitely go into detail on content that doesn’t violate like below, but could ‘contribute to vaccine
hesitancy.’”33(7)

On March 1, 2021, Flaherty and Humphrey (along with Joshua Peck (“Peck”), theHealth and Human Services’ (“HHS”) Deputy Assistant Secretary) participated in a meeting with
Twitter about misinformation. After the meeting, Twitter emailed those officials to assure theWhite House that Twitter would increase censorship of “misleading information” on Twitter,stating “[t]hanks again for meeting with us today. As we discussed, we are building on ‘our’
continued efforts to remove the most harmful COVID-19 ‘misleading information’ from theservice.”34(8)

From May 28, 2021, to July 10, 2021, a senior Meta executive reportedly copied

Andrew Slavitt (“Slavitt”), former White House Senior COVID-19 Advisor, on his emails to
Surgeon General Murthy (“Murthy”), alerting them that Meta was engaging in censorship of
COVID-19 misinformation according to the White House’s “requests” and indicating “expanded
penalties” for individual Facebook accounts that share misinformation.35 Meta also stated, “We
think there is considerably more we can do in ‘partnership’ with you and your team to drive
behavior.”36

32[Doc. No. 214-9 at 2–3]
[Id.]
34
[Doc. No. 214-10 at 2, Jones Declaration, #10, Exh. H] SEALED DOCUMENT
35[Doc. No. 71-4 at 6–11]
36[Id. at 10] (emphasis added)
33

12

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 13 of 155 PageID #:
26804

(9)

On March 12, 2021, Facebook emailed Flaherty stating, “Hopefully, this format

works for the various teams and audiences within the White House/HHS that may find this datavaluable.”37 This email also provided a detailed report and summary regarding survey data on
vaccine uptake from January 10 to February 27, 2021.38(10)

On March 15, 2021, Flaherty acknowledged receiving Facebook’s detailed reportand demanded a report from Facebook on a recent Washington Post article that accused Facebookof allowing the spread of information leading to vaccine hesitancy. Flaherty emailed the
Washington Post article to Facebook the day before, with the subject line: “You are hiding theball,” and stated “I’ve been asking you guys pretty directly, over a series of conversations, for aclear accounting of the biggest issues you are seeing on your platform when it comes to vaccine
hesitancy and the degree to which borderline content as you define it – is playing a role.”39
After Facebook denied “hiding the ball,” Flaherty followed up by making clear that theWhite House was seeking more aggressive action on “borderline content.”40 Flaherty referred to aseries of meetings with Facebook that were held in response to concerns over “borderline content”
and accused Facebook of deceiving the White House about Facebook’s “borderline policies.”41
Flaherty also accused Facebook of being the “top driver of vaccine hesitancy.”42 Specifically, hisemail stated:
I am not trying to play ‘gotcha’ with you. We are gravely concernedthat your service is one of the top drivers of vaccine hesitancyperiod. I will also be the first to acknowledge that borderline content
offers no easy solutions. But we want to know that you’re trying, wewant to know how we can help, and we want to know that you’re
not playing a shell game with us when we ask you what is going on.
37[Doc. No. 174-1 at 9][Id.]
39[Id. at 11]
40[Id. at 11–12]
41
[Id.]
42
[Id. at 11]38

13

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 14 of 155 PageID #:
26805

This would all be a lot easier if you would just be straight with us.43
In response to Flaherty’s email, Facebook responded, stating: “We obviously have work to do togain your trust…We are also working to get you useful information that’s on the level. That’s myjob and I take it seriously – I’ll continue to do it to the best of my ability, and I’ll expect you tohold me accountable.”44
Slavitt, who was copied on Facebook’s email, responded, accusing Facebook of not beingstraightforward, and added more pressure by stating, “internally, we have been considering our
options on what to do about it.”45(11)

On March 19, 2021, Facebook had an in-person meeting with White House

officials, including Flaherty and Slavitt.46 Facebook followed up on Sunday, March 21, 2021,
noting that the White House had demanded a consistent point of contact with Facebook, additional
data from Facebook, “Levers for Tackling Vaccine Hesitancy Content,” and censorship policies
for Meta’s platform WhatsApp.47 Facebook noted that in response to White House demands, it
was censoring, removing, and reducing the virality of content discouraging vaccines “that does notcontain actionable misinformation.”48 Facebook also provided a report for the White House on therequested information on WhatsApp policies:
You asked us about our levers for reducing virality of vaccine
hesitancy content. In addition to policies previously discussed, theseinclude the additional changes that were approved last week and that
we will be implementing over the coming weeks. As you know, in
addition to removing vaccine misinformation, we have been focusedon reducing the virality of content discouraging vaccines that do notcontain actionable misinformation.49

43[Id. at 11][Id. at 11]
45[Id. at 10]
46[Id. at 15]
47
[Id.]
48
[Id. at 15]
49[Id. at 15]44

14

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 15 of 155 PageID #:26806

On March 22, 2021, Flaherty responded to this email, demanding more detailed information and aplan from Facebook to censor the spread of “vaccine hesitancy” on Facebook.50 Flaherty also
requested more information about and demanded greater censorship by Facebook of “sensational,”“vaccine skeptical” content.51 He also requested more information about WhatsApp regarding
vaccine hesitancy.52 Further, Flaherty seemingly spoke on behalf of the White House and statedthat the White House was hoping they (presumably the White House and Facebook) could be“partners here, even if it hasn’t worked so far.”53 A meeting was scheduled the following
Wednesday between Facebook and White House officials to discuss these issues.
On April 9, 2021, Facebook responded to a long series of detailed questions from Flaherty
about how WhatsApp was censoring COVID-19 misinformation. Facebook stated it was “reducing
viral activity on our platform” through message-forward limits and other speech-blocking
techniques.54 Facebook also noted it bans accounts that engage in those that seek to exploit
COVID-19 misinformation.55
Flaherty responded, “I care mostly about what actions and changes you are making toensure you’re not making our country’s vaccine hesitancy problem worse,” accusing Facebook ofbeing responsible for the Capitol riot on January 6, 2021, and indicating that Facebook would be
similarly responsible for COVID-related deaths if it did not censor more information.56 “You only

50

[Id.]
[Id.]
52
[Id.]
53
[Id. at 14]
54[Id. at 17]
55[Id. at 17]
56[Id. at 17–21]
51

15

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 16 of 155 PageID #:26807

did this, however, after an election that you helped increase skepticism in, and an insurrection
which was plotted, in large part, on your platform.”57(12)

On April 14, 2021, Flaherty demanded the censorship of Fox News hosts Tucker

Carlson and Tomi Lahren because the top post about vaccines that day was “Tucker Carlson saying
vaccines don’t work and Tomi Lahren stating she won’t take a vaccine.”58 Flaherty stated, “Thisis exactly why I want to know what ‘Reduction’ actually looks like – if ‘reduction’ means‘pumping our most vaccine hesitant audience with Tucker Carlson saying it does not work’…
then…I’m not sure it’s reduction!”59
Facebook promised the White House a report by the end of the week.60(13)

On April 13, 2021, after the temporary halt of the Johnson & Johnson vaccine, theWhite House was seemingly concerned about the effect this would have on vaccine hesitancy.
Flaherty sent to Facebook a series of detailed requests about how Facebook could “amplify”
various messages that would help reduce any effects this may have on vaccine hesitancy.61
Flaherty also requested that Facebook monitor “misinformation” relating to the Johnson &Johnson pause and demanded from Facebook a detailed report within twenty-four hours.
Facebook provided the detailed report the same day.62 Facebook responded, “Re the J & J news,
we’re keen to amplify any messaging you want us to project about what this means for people.”63(14)Facebook responded to a telephone call from Rowe about how it was censoring

information with a six-page report on censorship with explanations and screen shots of sample
posts of content that it does and does not censor. The report noted that vaccine hesitancy content

57[Id. at 17][Id. at 22]
59[Id. at 22]
60[Id. at 23]
61[Id. at 30–31]
62[Id. at 31]
63[Id. at 31–32]
58

16

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 17 of 155 PageID #:26808

does not violate Facebook’s content-moderation policies, but indicated that Facebook still censors
this content by suppressing it in news feeds and algorithms.64 Other content that Facebook admitted
did not violate its policy but may contribute to vaccine hesitancy are: a) sensational or alarmist
vaccine misrepresentation; b) disparaging others based on the choice to or not to vaccinate; c) true
but shocking claims or personal anecdotes; d) discussing the choice to vaccinate in terms of
personal or civil liberties; and e) concerns related to mistrust in institutions or individuals.65
Facebook noted it censors such content through a “spectrum of levers” that includes concealing
the content from other users, “de-boosting” the content, and preventing sharing through“friction.”66 Facebook also mentioned looking forward to tomorrow’s meeting “and how we canhopefully partner together.”67
Other examples of posts that did not violate Facebook’s policies but would nonetheless be
suppressed included content that originated from the Children’s Health Defense, a nonprofit
activist group headed by Robert F. Kennedy, Jr. (labeled by Defendants as one of the“Disinformation Dozen”).68(15)

On April 14, 2021, Slavitt emailed Facebook executive Nick Clegg (“Clegg”) witha message expressing displeasure with Facebook’s failure to censor Tucker Carlson. Slavitt stated,“Not for nothing but the last time we did this dance, it ended in an insurrection.”69 The subject line
was “Tucker Carlson anti-vax message.”70 Clegg responded the same day with a detailed reportabout the Tucker Carlson post, stating that the post did not qualify for removal under Facebook

64[Id. at 24–25][Id.]
66[Id. at 24–25]
67[Id. at 24]
68[Id. at 25–27]
69[Id. at 34]
70
Id. at 33]
65

17

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 18 of 155 PageID #:26809

policy but that the video was being labeled with a pointer to authoritative COVID-19 information,
not being recommended to people, and that the video was being “demoted.”71
After Brian Rice (“Rice”) of Facebook forwarded the same report on the Tucker Carlson
post to Flaherty on April 14, 2021, Flaherty responded to Rice wanting a more detailed explanationof why Facebook had not removed the Tucker Carlson video and questioning how the video had
been “demoted” since there were 40,000 shares.72 Flaherty followed up six minutes later alleging
Facebook provided incorrect information through Crowd Tangle.73
Two days later, on April 16, 2021, Flaherty demanded immediate answers from Facebook
regarding the Tucker Carlson video.74 Facebook promised to get something to him that night.
Facebook followed up on April 21, 2021, with an additional response in regard to an apparent callfrom Flaherty (“thanks for catching up earlier”).75 Facebook reported the Tucker Carlson content
had not violated Facebook’s policy, but Facebook gave the video a 50% demotion for seven days
and stated that it would continue to demote the video.76(16)

On April 21, 2021, Flaherty, Slavitt, and other HHS officials, met with Twitter

officials about “Twitter Vaccine Misinfo Briefing.” The invite stated the White House would be
briefed by Twitter on vaccine information, trends seen generally about vaccine information, thetangible effects seen from recent policy changes, what interventions were being implemented,
previous policy changes, and ways the White House could “partner” in product work.77

71[Id. at 36][Id. at 33–34]
73
[Id.]
74
[Id. at 33]
75
[Id.]
76
[Id. at 33, 36]
77[Doc. No. 71-7 at 86].
72

18

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 19 of 155 PageID #:26810

Twitter discovery responses indicated that during the meeting, White House officials
wanted to know why Alex Berenson (“Berenson”) had not been “kicked off” Twitter. 78 Slavittsuggested Berenson was “the epicenter of disinfo that radiated outwards to the persuadable
public.”79 Berenson was suspended thereafter on July 16, 2021, and was permanently deplatformed on August 28, 2021.80(17)Also on April 21, 2021, Flaherty, Slavitt, and Fitzpatrick had a meeting with several

YouTube officials. The invitation stated the purpose of this meeting was for the White House to
be briefed by YouTube on general trends seen around vaccine misinformation, the effects ofYouTube’s efforts to combat misinformation, interventions YouTube was trying, and ways theWhite House can “partner” in product work.81
In an April 22, 2021, email, Flaherty provided a recap of the meeting and stated his concernthat misinformation on YouTube was “shared at the highest (and I mean the highest) levels of theWhite House.”82 Flaherty indicated that the White House remains concerned that YouTube is“funneling people into hesitancy and intensifying people’s vaccine hesitancy.”83 Flaherty further
shared that “we” want to make sure YouTube has a handle on vaccine hesitancy and is working
toward making the problem better.84 Flaherty again noted vaccine hesitancy was a concern that isshared by the highest (“and I mean the highest”) levels of the White House.85
Flaherty further indicated that the White House was coordinating with the Stanford Internet
Observatory (which was operating the Virality Project): “Stanford” has mentioned that it’s recently

78[Doc. No. 212-14 at 2–5]
[Id.]80
[Doc. No. 212-14, Exh. J, at 2–5]
81[Doc. No. 212-15, Exh. K, at 1–4] SEALED DOCUMENT
82[Doc. No. 174-1 at 39-40]
83
[Id.]
84
[Id.]
85
[Doc. No. 174-1 at 39–40]
79

19Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 20 of 155 PageID #:26811

Vaccine Passports and J&J pause-related stuff, but I’m not sure if that reflects what you’reseeing.”86 Flaherty praised YouTube for reducing distribution of content: “I believe you said you
reduced watch time by 70% on borderline content, which is impressive.”87 However, Flaherty
followed up with additional demands for more information from YouTube. Flaherty emphasizedthat the White House wanted to make sure YouTube’s work extends to the broader problem ofpeople viewing “vaccine-hesitant content.”88 Flaherty also suggested regular meetings with
YouTube (“Perhaps bi-weekly”) as they have done with other “platform partners.”89(18)

On April 23, 2021, Flaherty sent Facebook an email including a document entitled“Facebook COVID-19 Vaccine Misinformation Brief” (“the Brief”), which indicated that
Facebook plays a major role in the spread of COVID vaccine misinformation and found that
Facebook’s policy and enforcement gaps enable misinformation to spread. 90 The Brief
recommended much more aggressive censorship of Facebook’s enforcement policies and called
for progressively severe penalties. The Brief further recommended Facebook stop distributing antivaccine content in News Feed or in group recommendations. The Brief also called for “warning
screens” before linking to domains known to promote vaccine misinformation.91 Flaherty noted
sending this Brief was not a White House endorsement of it, but “this is circulating around thebuilding and informing thinking.”92
On May 1, 2021, Facebook’s Clegg sent an email to Slavitt indicating Facebook and theWhite House met recently to “share research work.”93 Clegg apologized for not catching and86[Id. at 39][Id.]
88[Doc. No. 214-1 at 39–40]
89[Id. at 39–40]
90[Doc. No. 214-14 at 2–3]
91
[Id.]
92
[Doc. No. 214-14 at 2–3, Jones Declaration]
93[Doc. No. 214-1]
87

20

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 21 of 155 PageID #:26812

censoring three pieces of vaccine content that went viral and promised to censor such content moreaggressively in the future:
I wanted to send you a quick note on the three pieces of vaccine
content that were seen by a high number of people before wedemoted them. Although they don’t violate our community
standards, we should have demoted them before they went viral, andthis has exposed gaps in our operational and technical process.
Notably, these three pieces of information did not violate Facebook’s policies. Clegg told Slavittthat Facebook teams had spent the past twenty-four hours analyzing gaps in Facebook and weremaking several changes next week.94
Clegg listed—in bold—demands that the White House had made in a recent meeting andprovided a response to each. The demands were: a) address Non-English mis/disinformation
circulating without moderation; b) do not distribute or amplify vaccine hesitancy, and Facebook
should end group recommendations for groups with a history of COVID-19 or vaccine
misinformation; c) monitor events that host anti-vaccine and COVID disinformation; and d)address twelve accounts that were responsible for 73% of vaccine misinformation.95 Facebook
noted that it was scrutinizing these accounts and censoring them whenever it could, but that mostof the content did not violate Facebook’s policies.96 Facebook referred to its new policy as their“Dedicated Vaccine Discouraging Entities.”97 Facebook even suggested that too much censorship
might be counterproductive and drive vaccine hesitancy: “Among experts we have consulted, there
is a general sense that deleting more expressions of vaccine hesitancy might be more

94

[Doc. No. 214-1 at ¶ 116].
[Doc. No. 174-1 at 41–42]
96[Doc. No. 174-1 at 41–42].
97
[Id.]
95

21

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 22 of 155 PageID #:26813

counterproductive to the goal of vaccine uptake because it could prevent hesitant people fromtalking through their concerns and potentially reinforce the notion that there’s a ‘cover-up.’”98(19)

On May 5, 2021, then-White House Press Secretary Jen Psaki (“Psaki”) publicly

began pushing Facebook and other social-media platforms to censor COVID-19 misinformation.
At a White House Press Conference, Psaki publicly reminded Facebook and other social-media
platforms of the threat of “legal consequences” if they do not censor misinformation moreaggressively. Psaki further stated: “The President’s view is that the major platforms have a
responsibility related to the health and safety of all Americans to stop amplifying untrustworthy
content, disinformation, and misinformation, especially related to COVID-19 vaccinations andelections.”99 Psaki linked the threat of a “robust anti-trust program” with the White House’s
censorship demand. “He also supports better privacy protections and a robust anti-trust program.
So, his view is that there’s more that needs to be done to ensure that this type of misinformation;
disinformation; damaging, sometime life-threatening information, is not going out to the American
public.”100
The next day, Flaherty followed up with another email to Facebook and chastised Facebook
for not catching various COVID-19 misinformation. Flaherty demanded more information about
Facebook’s efforts to demote borderline content, stating, “Not to sound like a broken record, but
how much content is being demoted, and how effective are you at mitigating reach, and how
quicky?”101 Flaherty also criticized Facebook’s efforts to censor the “Disinformation Dozen”:

98[Id. at 42][Doc. No. 266-6 at 374]
100
[Id.]
101
[Doc. No. 174-1 at 41]
99

22

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 23 of 155 PageID #:26814“Seems like your ‘dedicated vaccine hesitancy’ policy isn’t stopping the disinfo-dozen – they’rebeing deemed as not dedicated – so it feels like that problem likely coming over to groups.”102
Things apparently became tense between the White House and Facebook after that,
culminating in Flaherty’s July 15, 2021 email to Facebook, in which Flaherty stated: “Are you
guys fucking serious? I want an answer on what happened here and I want it today.”103(20)

On July 15, 2021, things became even more tense between the White House,

Facebook, and other social-media platforms. At a joint press conference between Psaki andSurgeon General Murthy to announce the Surgeon General’s “Health Advisory on
Misinformation,”104 Psaki announced that Surgeon General Murthy had published an advisory on
health misinformation as an urgent public health crisis.105 Murthy announced: “Fourth, we’resaying we expect more from our technology companies. We’re asking them to operate with greatertransparency and accountability. We’re asking them to monitor misinformation more closely.
We’re asking them to consistently take action against misinformation super-spreaders on theirplatforms.”106Psaki further stated, “We are in regular touch with these social-media platforms, andthose engagements typically happen through members of our senior staff, but also members of our
COVID-19 team,” and “We’re flagging problematic posts for Facebook that spreaddisinformation.”107
Psaki followed up by stating that the White House’s “asks” include four key steps by whichsocial-media companies should: 1) measure and publicly share the impact of misinformation on

102

[Id.]
[Id. at 55]
104[Doc. No. 210-1 at 16 (Waldo Depo, Exh. 10)]105
[Id. at 162]106
[Doc. No. 10-1 at 370]
107
[Id. at 376–77]
103

23

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 24 of 155 PageID #:26815

their platforms; 2) create a robust enforcement strategy; 3) take faster action against harmful posts;
and 4) promote quality information sources in their feed algorithms.108
The next day, on July 16, 2021, President Biden, after being asked what his message wasto social-media platforms when it came to COVID-19, stated, “[T]hey’re killing people.”109
Specifically, he stated “Look, the only pandemic we have is among the unvaccinated, and thatthey’re killing people.”110 Psaki stated the actions of censorship Facebook had already conducted
were “clearly not sufficient.”111
Four days later, on July 20, 2021, at a White House Press Conference, White House
Communications Director Kate Bedingfield (“Bedingfield”) stated that the White House would beannouncing whether social-media platforms are legally liable for misinformation spread on theirplatforms and examining how misinformation fits into the liability protection granted by Section
230 of the Communications Decency Act (which shields social-media platforms from being
responsible for posts by third parties on their sites).112 Bedingfield further stated the administration
was reviewing policies that could include amending the Communication Decency Act and that thesocial-media platforms “should be held accountable.”113(21)

The public and private pressure from the White House apparently had its intended

effect. All twelve members of the “Disinformation Dozen” were censored, and pages, groups, andaccounts linked to the Disinformation Dozen were removed.114

108[Id. at 377–78][Doc. No. 10-1 at 370]
110
[Id. at 436–37]
111[Doc. No. 10-1 at 446]
112
[Doc. No. 10-1 at 477–78]
113
[Id.]
114
[Doc. No. 10-1 at 483–85]
109

24

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 25 of 155 PageID #:26816

Twitter suspended Berenson’s account within a few hours of President Biden’s July 16,
2021 comments. 115 On July 17, 2021, a Facebook official sent an email to Anita B. Dunn(“Dunn”), Senior Advisor to the President, asking for ways to “get back into the White House’s
good graces” and stated Facebook and the White House were “100% on the same team here infighting this.”116(22)

On November 30, 2021, the White House’s Christian Tom (“Tom”) emailed

Twitter requesting that Twitter watch a video of First Lady Jill Biden that had been edited to makeit sound as if the First Lady were profanely heckling children while reading to them.117 Twitter
responded within six minutes, agreeing to “escalate with the team for further review.”118 Twitter
advised users that the video had been edited for comedic effect. Tom then requested Twitter apply
a “Manipulated Media” disclaimer to the video.119 After Twitter told Tom the video was not subject
to labeling under its policy, Tom disputed Twitter’s interpretation of its own policy and added
Michael LaRosa (“LaRosa”), the First Lady’s Press Secretary, into the conversation. 120 Further
efforts by Tom and LaRosa to censor the video on December 9, 13, and 17 finally resulted in thevideo’s removal in December 2021.121(23)

In January 2022, Facebook reported to Rowe, Murthy, Flaherty, and Slavitt that it

had “labeled and demoted” vaccine humor posts whose content could discourage vaccination.122
Facebook also reported to the White House that it “labeled and ‘demoted’ posts suggesting naturalimmunity to a COVID-19 infection is superior to vaccine immunity.”123 In January 2022, Jesse

115[Doc. No. 214-12 at 2–5]
[Doc. No. 174-1 at 49]
117[Doc. No. 174-1 at 59–67]
118
[Id.]
119
[Id.]
120
[Id.]
121
[Id. at 59–67]
122[Doc. No. 71-3 at 10–11]123[Doc. No. 71-3 at 10–11]
116

25

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 26 of 155 PageID #:
26817

Lee (“Lee”) of the White House sent an email accusing Twitter of calling the President a liar inregard to a Presidential tweet.124
At a February 1, 2022, White House press conference, Psaki stated that the White House
wanted every social-media platform to do more to call out misinformation and disinformation, andto uplift accurate information.125
At an April 25, 2022, White House press conference, after being asked to respond to news
that Elon Musk may buy Twitter, Psaki again mentioned the threat to social-media companies toamend Section 230 of the Communications Decency Act, linking these threats to social-media
platforms’ failure to censor misinformation and disinformation.126
On June 13, 2022, Flaherty demanded Meta continue to produce periodic COVID-19
insight reports to track COVID-19 misinformation, and he expressed a concern about
misinformation regarding the upcoming authorization of COVID-19 vaccines for children underfive years of age. Meta agreed to do so on June 22, 2022.127(24)

In addition to misinformation regarding COVID-19, the White House also asked

social-media companies to censor misinformation regarding climate change, gender discussions,abortion, and economic policy. At an Axios event entitled “A Conversation on Battling
Misinformation,” held on June 14, 2022, the White House National Climate Advisor Gina
McCarthy (“McCarthy”) blamed social-media companies for allowing misinformation anddisinformation about climate change to spread and explicitly tied these censorship demands withthreats of adverse legislation regarding the Communications Decency Act.128

124[Doc. No. 174-1 at 69][Doc. No. 10-1 at 501–2]
126[Id. at 62–63, ¶¶ 193–197]
127[Doc. No. 71-3 at 5–6]
128
[Doc. No. 214-15]
12526

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 27 of 155 PageID #:26818

On June 16, 2022, the White House announced a new task force to target “generalmisinformation” and disinformation campaigns targeted at women and LBGTQI individuals whoare public and political figures, government and civic leaders, activists, and journalists.129 The
June 16, 2022, Memorandum discussed the creation of a task force to reel in “online harassment
and abuse” and to develop programs targeting such disinformation campaigns. 130 The
Memorandum also called for the Task Force to confer with technology experts and again
threatened social-media platforms with adverse legal consequences if the platforms did not censor
aggressively enough.131
On July 8, 2022, President Biden signed an Executive Order on protecting access toabortion. Section 4(b)(iv) of the order required the Attorney General, the Secretary of HHS, andthe Chair of the Federal Trade Commission to address deceptive or fraudulent practices relating to
reproductive healthcare services, including those online, and to protect access to accurate
information.132
On August 11, 2022, Flaherty emailed Twitter to dispute a note added by Twitter to one of
President Biden’s tweets about gas prices.133(25)

On August 23, 2021, Flaherty emailed Facebook requesting a report on how

Facebook intended to promote the FDA approval of the Pfizer vaccine. He also stated that theWhite House would appreciate a “push” and provided suggested language.134

129[Doc. No. 214-15[
[Id.]
131
[Doc. No. 214-16]
132[Doc. No. 214-18]
133[Doc. No. 174-1 at 68]
134
[Id.]
130

27

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 28 of 155 PageID #:26819

B. Surgeon General Defendants135
Surgeon General Murthy is the Surgeon General of the United States. Eric Waldo(“Waldo”) is the Senior Advisor to the Surgeon General and was formerly Chief Engagement
Officer for the Surgeon General’s office. Waldo’s Deposition was taken as part of the allowed
Preliminary Injunction-related discovery in this matter.136(1)

Waldo was responsible for maintaining the contacts and relationships withrepresentatives of social-media platforms. Waldo did pre-rollout calls with Twitter, Facebook, andGoogle/YouTube before the Surgeon General’s health advisory on misinformation was publishedon July 15, 2021.137 Waldo admitted that Murthy used his office to directly advocate for socialmedia platforms to take stronger actions against health “misinformation” and that those actions
involved putting pressure on social-media platforms to reduce the dissemination of healthmisinformation.138 Surgeon General Murthy’s message was given to social-media platforms bothpublicly and privately.139(2)

At a July 15, 2021 joint press conference between Psaki and Murthy, the two madethe comments mentioned previously in II A(19), which publicly called for social-media platforms“to do more” to take action against misinformation super-spreaders.140 Murthy was directly
involved in editing and approving the final work product for the July 15, 2021 health advisory on
misinformation.141 Waldo also admitted that Murthy used his “bully pulpit” to talk about healthmisinformation and to put public pressure on social-media platforms.142

Surgeon General Defendants consists of Dr. Vivek H. Murthy (“Murthy”) and Katharine Dealy (“Dealy”).
[Doc. No. 210]
137
[Doc. No. 210 at 11, 20]
138[Id. at 25, 28]
139[Id. at 11, 20, 25, 28]
140[Id. at 33–35]
141[Waldo depo at 14–17]
142[Id. at 29]
135
136

28

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 29 of 155 PageID #:
26820

(3)

Waldo’s initial rollout with Facebook was negatively affected because of the public

attacks by the White House and Office of the Surgeon General towards Facebook for allowing
misinformation to spread.143 Clegg of Facebook reached out to attempt to request “de-escalation”
and “working together” instead of the public pressure.144 In the call between Clegg and Murthy,
Murthy told Clegg he wanted Facebook to do more to censor misinformation on its platforms.
Murthy also requested Facebook share data with external researchers about the scope and reach of
misinformation on Facebook’s platforms to better understand how to have external researchers
validate the spread of misinformation.145 “Data about misinformation” was the topic ofconversation in this call; DJ Patil, chief data scientist in the Obama Administration, Murthy,
Waldo, and Clegg all participated on the call. The purpose of the call was to demand more
information from Facebook about monitoring the spread of misinformation.146(4)

One of the “external researchers” that the Office of Surgeon General likely had inmind was Renee DiResta (“DiResta”) from the Stanford Internet Observatory, a leadingorganization of the Virality Project.147 The Virality Project hosted a “rollout event” for Murthy’s
July 15, 2021 press conference.148
There was coordination between the Office of the Surgeon General and the Virality Projecton the launch of Murthy’s health advisory.149 Kyla Fullenwider (“Fullenwider”) is the Office of
the Surgeon General’s key subject-matter expert who worked on the health advisory on
misinformation. Fullenwider works for a non-profit contractor, United States’ Digital Response.150

143[Id. at 91–94][Doc. No. 210 at 95–98]
145
[Id.]
146
[Doc. No. 210 at 95–98]
147
The Virality Project will be discussed later in greater detail.
148[Id. at 36–38]
149[Id. at 38]
150[Id. at 39, 59, 85]144

29

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 30 of 155 PageID #:26821

Waldo, Fullenwider, and DiResta were involved in a conference call after the July 15, 2021 press
conference where they discussed misinformation.151 The Office of the Surgeon General anticipatedthat social-media platforms would feel pressured by the Surgeon General’s health advisory.152(5)

Waldo and the Office of the Surgeon General received a briefing from the Centerfor Countering Digital Hate (“CCDH”) about the “Disinformation Dozen.” CCDH gave apresentation about the Disinformation Dozen and how CCDH measured and determined that theDisinformation Dozen were primarily responsible for a significant amount of online
misinformation.153(6)

In his deposition, Waldo discussed various phone calls and communications

between Defendants and Facebook. In August of 2021, Waldo joined a call with Flaherty and Brian
Rice of Facebook.154 The call was an update by Facebook about the internal action it was taking
regarding censorship.155 Waldo was aware of at least one call between Murthy and Facebook in
the period between President Biden’s election and assuming office, and he testified that the call
was about misinformation.156 Waldo was also aware of other emails and at least one phone callwhere Flaherty communicated with Facebook.157(7)

The first meeting between the Office of the Surgeon General and social-media

platforms occurred on May 25, 2021, between Clegg, Murthy, and Slavitt. The purpose of this call
was to introduce Murthy to Clegg. Clegg emailed Murthy with a report of misinformation on
Facebook on May 28, 2021.158

151

[Id.]
[Id. at 39, 59, 85]
153[Id. at 43, 47]
154[Id. at 66, 124–25]
155[Id. at 66, 124–25]
156[Id. at 55–56]
157[Id. at 64–65]
158[Doc. No. 210-4]
15230

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 31 of 155 PageID #:26822

Policy updates about increasing censorship were announced by Facebook on May 27,
2021.159 The Office of the Surgeon General had a pre-rollout (i.e., before the rollout of the Surgeon
General’s health advisory on misinformation) call with Twitter and YouTube on July 12 and July
14, 2021.160 The Office of the Surgeon General had a rollout call with Facebook on July 16, 2021.
The July 16 call with Facebook was right after President Biden had made his “[T]hey’re killing
people” comment (II A (19), above), and it was an “awkward call” according to Waldo.161
Another call took place on July 23, 2021, between Murthy, Waldo, DJ Patil, Clegg, andRice. Clegg shared more about the spread of information and disinformation on Facebook after
the meeting. At the meeting, Murthy raised the issue of wanting to have a better understanding of
the reach of misinformation and disinformation as it relates to health on Facebook; Murthy often
referred to health misinformation in these meetings as “poison.”162 The Surgeon General’s healthadvisory explicitly called for social-media platforms to do more to control the reach of
misinformation.163
On July 30, 2021, Waldo had a meeting with Google and YouTube representatives. At themeeting, Google and YouTube reported to the Office of the Surgeon General what actions they
were taking following the Surgeon General’s health advisory on misinformation.164
On August 10, 2021, Waldo and Flaherty had a call with Rice calling for Facebook toreport to federal officials as to Facebook’s actions to remove “disinformation” and to provide
details regarding a vaccine misinformation operation Facebook had uncovered.165

159[Id. at 78, Exh. 3][Id. at 85]
161
[Id.]
162
[Id. at 95–98, 101, 105]
163
[Id. at 107–08]
164[Doc. No. 210-4 at 33]
165
[Id.]
160

31

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 32 of 155 PageID #:26823

Another meeting took place between Google/YouTube, Waldo, and Flaherty on September
14, 2021, to discuss a new policy YouTube was working on and to provide the federal officials
with an update on YouTube’s efforts to combat harmful COVID-19 misinformation on its
platform.166(8)

After the meetings with social-media platforms, the platforms seemingly fell in linewith the Office of Surgeon General’s and White House’s requests. Facebook announced policy
updates about censoring misinformation on May 27, 2021, two days after the meeting.167 As
promised, Clegg provided an update on misinformation to the Office of Surgeon General on May
28, 2021, three days after the meeting168 and began sending bi-weekly COVID content reports on
June 14, 2021.169
On July 6, 2021, Waldo emailed Twitter to set up the rollout call for the Office of theSurgeon General’s health advisory on misinformation and told Twitter that Murthy had been
thinking about how to stop the spread of health misinformation; that he knew Twitter’s teams were
working hard and thinking deeply about the issue; and that he would like to chat over Zoom to
discuss.170 Twitter ultimately publicly endorsed the Office of the Surgeon General’s call for greater
censorship of health misinformation.171
Waldo sent an email to YouTube on July 6, 2021, to set up the rollout call and to state that
the Office of the Surgeon General’s purpose was to stop the spread of misinformation on socialmedia platforms.172 YouTube eventually adopted a new policy on combatting COVID-19

166[Id. at 129]
[Doc. No. 210-1 at 138]
168
[Doc. No. 210-5 at 1–2]
169
[Doc. No. 210-6]
170[Doc. No. 210-7 at 145–46]
171
[Id.]
172
[Doc. No. 210-8]
16732

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 33 of 155 PageID #:26824

misinformation and began providing federal officials with updates on YouTube’s efforts to combat
the misinformation.173(9)

At the July 15, 2021 press conference, Murthy described health misinformation as

one of the biggest obstacles to ending the pandemic; insisted that his advisory was on an urgent
public health threat; and stated that misinformation poses an imminent threat to the nation’s healthand takes away the freedom to make informed decisions.174 Murthy further stated that healthdisinformation is false, inaccurate, or misleading, based upon the best evidence at the time.175
Murthy also stated that people who question mask mandates and decline vaccinations arefollowing misinformation, which results in illnesses and death.176 Murthy placed specific blameon social-media platforms for allowing “poison” to spread and further called for an “all-of-society
approach” to fight health misinformation.177 Murthy called upon social-media platforms to operatewith greater transparency and accountability, to monitor information more clearly, and to“consistently take action against misinformation super-spreaders on their platforms.”178 Notably,
Waldo agreed in his deposition that the word “accountable” carries with it the threat ofconsequences.179 Murthy further demanded social-media platforms do “much, much, more” andtake “aggressive action” against misinformation because the failure to do so is “costing people
their lives.”180(10)

Murthy’s July 15, 2021 health advisory on misinformation blamed social-media

platforms for the spread of misinformation at an unprecedented speed, and it blamed social-media

173[Doc. No. 210-8].
[Doc. No. 210-11]175[Doc. No. 210-11]176[Doc. No. 210-11]
177
[Id.]
178
[Id.]
179
[Id.]
180
[Id.]
174

33

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 34 of 155 PageID #:26825

features and algorithms for furthering the spread.181 The health advisory further called for socialmedia platforms to enact policy changes to reduce the spread of misinformation, including
appropriate legal and regulatory measures.182
Under a heading entitled “What Technology Platforms Can Do,” the health advisory called
for platforms to take a series of steps to increase and enable greater social-media censorship of
misinformation, including product changes, changing algorithms to avoid amplifying
misinformation, building in “frictions” to reduce the sharing of misinformation, and practicing theearly detection of misinformation super-spreaders, along with other measures.183 The
consequences for misinformation would include flagging problematic posts, suppressing the
spread of the information, suspension, and permanent de-platforming.184(11)

The Office of the Surgeon General collaborated and partnered with the Stanford

University Internet Observatory and the Virality Project. Murthy participated in a January 15, 2021
launch of the Virality Project. In his comments, Murthy told the group, “We’re asking technology
companies to operate with great transparency and accountability so that misinformation does notcontinue to poison our sharing platforms and we knew the government can play an important role,
too.”185
Murthy expressly mentioned his coordination with DiResta at the Virality Project andexpressed his intention to maintain that collaboration. He claimed that he had learned a lot fromthe Virality Project’s work and thanked the Virality Project for being such a great “partner.”186

181[Doc. No. 210-11]
[Id.]
183
[Id.]
184
[Id.]
185
[Doc. No. 210-13, Doc. No. 210, at 206–07].
186[Doc. No. 210-1 at 213]
182

34

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 35 of 155 PageID #:26826

Murthy also stated that the Office of the Surgeon General had been “partnered with” the Stanford
Internet Observatory for many months.187(12)

After President Biden’s “[T]hey’re killing people” comment on July 16, 2021,

Facebook representatives had “sad faces” according to Waldo. On July 21, 2021, Facebook
emailed Waldo and Fullenwider with CrowdTangle data and with “interventions” that created“frictions” with regard to COVID misinformation. The interventions also included limiting
forwarding of WhatsApp messages, placing warning labels on fact-checked content, and creating“friction” when someone tries to share these posts on Facebook. Facebook also reported other
censorship policy and actions, including censoring content that contributes to the risk of imminent
physical harm, permanently banning pages, groups, and accounts that repeatedly broke Facebook’s
COVID-19 misinformation rules, and reducing the reach of posts, pages, groups, and accounts thatshare other false claims “that do not violate our policies but may present misleading or
sensationalized information about COVID-19 and vaccines.”188
On July 16, 2021, Clegg emailed Murthy and stated, “I know our teams met today to better
understand the scope of what the White House expects of us on misinformation going
forward.”189On July 18, 2021, Clegg messaged Murthy stating “I imagine you and your team arefeeling a little aggrieved—as is the [Facebook] team, it’s not great to be accused of killing
people—but as I said by email, I’m keen to find a way to deescalate and work together
collaboratively. I am available to meet/speak whenever suits.”190 As a result of thiscommunication, a meeting was scheduled for July 23, 2021.191

187[Doc. No. 210-1 at 213]
[Doc. No. 210-15]
189[Doc. No. 210-16]190[Doc. No. 210-17]191[Doc. No. 210-18]
18835

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 36 of 155 PageID #:26827

At the July 23, 2021 meeting, the Office of the Surgeon General officials were concerned
about understanding the reach of Facebook’s data.192 Clegg even sent a follow-up email after the
meeting to make sure Murthy saw the steps Facebook had been taking to adjust policies withrespect to misinformation and to further address the “disinfo-dozen.”193 Clegg also reported that
Facebook had “expanded the group of false claims that we remove, to keep up with recent trendsof misinformation that we are seeing.”194 Further, Facebook also agreed to “do more” to censor
COVID misinformation, to make its internal data on misinformation available to federal officials,
to report back to the Office of the Surgeon General, and to “strive to do all we can to meet our‘shared’ goals.”195
Evidently, the promised information had not been sent to the Office of the Surgeon General
by August 6, 2021, so the Office requested the information in a report “within two weeks.”196 The
information

entitled

“How

We’re

TakingActionAgainstVaccineMisinformation

Superspreaders” was later sent to the Office of the Surgeon General. It detailed a list of censorship
actions taken against the “Disinformation Dozen.”197 Clegg followed up with an August 20, 2021
email with a section entitled “Limiting Potentially Harmful Misinformation,” which detailed more
efforts to censor COVID-19 Misinformation.198 Facebook continued to report back to Waldo and
Flaherty with updates on September 19 and 29 of 2021.199(13)

Waldo asked for similar updates from Twitter, Instagram, and Google/YouTube.200

192

[Id.]
[Id. at 4–5]
194
[Id.]
195
[Id.]
196
[Doc. No. 210-22 at 1–3]
197
[Doc. No. 210-21]
198[Doc. No. 210-22 at 2]
199[Doc. No. 210, Waldo depo. Exh 30, 31]200[Doc. No. 210, Waldo depo. at 257–58]
193

36

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 37 of 155 PageID #:
26828

(14)

The Office of the Surgeon General also collaborated with the Democratic National

Committee. Flaherty emailed Murthy on July 19, 2021, to put Murthy in touch with Jiore Craig(“Craig”) from the Democratic National Committee who worked on misinformation anddisinformation issues.201 Craig and Murthy set up a Zoom meeting for July 22, 2021.
(15)

After an October 28, 2021 Washington Post article stated that Facebook researchers

had deep knowledge about how COVID-19 and vaccine misinformation ran through Facebook’s
apps, Murthy issued a series of tweets from his official Twitter account indicating he was “deeply
disappointed” to read this story, that health misinformation had harmed people’s health and cost
lives, and that “we must demand Facebook and the rest of the social-media ecosystems takeresponsibility for stopping health misinformation on their platforms.”202 Murthy further tweetedthat “we need transparency and accountability now.”203(16)

On October 29, 2021, Facebook asked federal officials to provide a “federal healthcontract” to dictate “what content would be censored on Facebook’s platforms.”204 Federal
officials informed Facebook that the federal health authority that could dictate what content could
be censored as misinformation was the CDC.205(17)

Murthy continued to publicly chastise social-media platforms for allowing healthmisinformation to be spread on their platforms. Murthy made statements on the following
platforms: a December 21, 2021 podcast threatening to hold social-media platforms accountable
for not censoring misinformation;206 a January 3, 2022 podcast with Alyssa Milano stating that“platformers need to step up to be accountable for making their spaces safer”;207 and a February

201[Doc. No. 210, Exh. 22][Doc. No. 210, Exh. 31]
203
[Id.]
204
[Doc. No. 210, Exh. 33]
205
[Id.]
206
[Doc. No. 210, Exh. 38, Audio Transcript, at 7]
207[Doc. No. 210–33]
202

37

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 38 of 155 PageID #:26829

14, 2022 panel discussion hosted by the Rockefeller Foundation, wherein they discussed thattechnology platforms enabled the speed, scale, and sophistication with which this misinformation
was spreading.208
On March 3, 2022, the Office of the Surgeon General issued a formal Request for
Information (“RFI”), published in the Federal Register, seeking information from social-media
platforms and others about the spread of misinformation.209 The RFI indicated that the Office of
the Surgeon General was expanding attempts to control the spread of misinformation on social
media and other technology platforms.210 The RFI also sought information about censorshippolicies, how they were enforced, and information about disfavored speakers.211The RFI was sent
to Facebook, Google/YouTube, LinkedIn, Twitter, and Microsoft212 by Max Lesko (“Lesko”),
Murthy’s Chief of Staff, requesting responses from these social-media platforms.213Murthy again
restated social-media platforms’ responsibility to reduce the spread of misinformation in aninterview with GQ Magazine.214 Murthy also specifically called upon Spotify to censor healthinformation.215
C. CDC Defendants216(1)

Crawford is the Director for The Division of Digital Media within the CDC Officeof the Associate Director for Communications. Her deposition was taken pursuant to preliminary-208[Doc. No. 210–34][Doc. No. 32. Ex. 42, 87 Fed. Reg. 12712]
210
[Id.]
211
[Id.]
212
[Id. Exh. 46, 47, 48, 49, 50, 51]
213
[Id.]
214
[Id. Exh. 51]
215[Exh. 52]
216
The CDC Defendants consist of the Centers for Disease Control & Prevention, Carol Crawford (“Crawford”), Jay
Dempsey (“Dempsey”), Kate Galatas (“Galatas”), United States Census Bureau (“Census Bureau”), Jennifer
Shopkorn (“Shopkorn”), the Department of Health and Human Services (“HHS”), Xavier Becerra (“Becerra”),
Yolanda Byrd (“Byrd”), Christy Choi (“Choi”), Ashley Morse (“Morse”), and Joshua Peck (“Peck”).
209

38

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 39 of 155 PageID #:26830

injunction related discovery here.217 The CDC is a component of the Department of Health andHuman Services (“HHS”); Xavier Becerra (“Becerra”) is the Secretary of HHS.218 Crawford’s
division provides leadership for CDC’s web presence, and Crawford, as director, determines
strategy and objectives and oversees its general work.219 Crawford was the main point of contact
for communications between the CDC and social-media platforms.220
Prior to the COVID-19 pandemic, Crawford only had limited contact with social-media
platforms, but she began having regular contact post-pandemic, beginning in February and Marchof 2020.221 Crawford communicated with these platforms via email, phone, and meetings.222(2)

Facebook emailed State Department officials on February 6, 2020, that it had taken

proactive and reactive steps to control information and misinformation related to COVID-19. The
email was forwarded to Crawford, who reforwarded to her contacts on Facebook. 223 Facebook
proposed to Crawford that it would create a Coronavirus page that would give information fromtrusted sources including the CDC. Crawford accepted Facebook’s proposal on February 7, 2020,and suggested the CDC may want to address “widespread myths” on the platform.224
Facebook began sending Crawford CrowdTangle reports on January 25, 2021.
CrowdTangle is a social-media listening tool for Meta, which shows themes of discussion onsocial-media channels. These reported on “top engaged COVID and vaccine-related content
overall across Pages and Groups.”225 This CrowdTangle report was sent by Facebook to Crawford

217[Doc. No. 205-1][Doc. No. 266-5 at 57–61]
219[Doc. No. 205-1 at 11]
220[Id. at 249]
221
[Id. at 16–18]
222[Id. at 20]
223[Doc. 205-3 at 3]
224[Id. at 1–2]
225
[Id. at 49–52]
218

39

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 40 of 155 PageID #:26831

in response to a prior conversation with Crawford.226 The CDC had privileged access to
CrowdTangle since early 2020.227
Facebook emailed Crawford on March 3, 2020, that it intended to support the Government
in its response to the Coronavirus, including a goal to remove certain information.228 Crawford
and Facebook began having discussions about misinformation with Facebook in the Fall of 2020,
including discussions of how to combat misinformation.229
The CDC used CrowdTangle, along with Meltwater reports (used for all platforms), tomonitor social media’s themes of discussion across platforms.230 Crawford recalls generally
discussing misinformation with Facebook.231 Crawford added Census Bureau officials to the
distribution list for CrowdTangle reports because the Census Bureau was going to begin working
with the CDC on misinformation issues.232(3)

On January 27, 2021, Facebook sent Crawford a recurring invite to a “Facebook

weekly sync with CDC.”233 A number of Facebook and CDC officials were included in the invite,
and the CDC could invite other agencies as needed.234 The CDC had weekly meetings with
Facebook.235(4)

On March 10, 2021, Crawford sent Facebook an email seeking information about“Themes that have been removed for misinfo.”236 The CDC questioned if Facebook had info on
the types of posts that were removed. Crawford was aware that the White House and the HHS

226[Doc. No. 205-1, Exh. 6 at 2][Id. at 49–52, 146–47]
228[Doc. No. 205-4 at 1–2]
229
[Doc. No. 205-7 at 1–2]
230
[Doc. No. 205-1 at 154–55]
231[Id. at 58]
232
[Id.]
233
[Doc. No. 205-1 at 226]
234
[Doc. No. 205-36]
235
Doc. No. 205-1 at 226]
236
[Doc. No. 205-44 at 2–3]
227

40

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 41 of 155 PageID #:26832

were also receiving similar information from Facebook.237 The HHS was present at meetings withsocial-media companies on March 1, 2021,238 and on April 21, 2021.239(5)

On March 25, 2021, Crawford and other CDC officials met with Facebook. In an

email by Facebook prior to that meeting, Facebook stated it would present on COVID-19
misinformation and have various persons present, including a Misinformation Manager and aContent-Manager official (Liz Lagone).240 Crawford responded, attaching a PowerPoint slidedeck, stating “This is a deck Census would like to discuss and we’d also like to fit in a discussionof topic types removed from Facebook.”241 Crawford also indicated two Census Bureau officials,
Schwartz and Shopkorn, would be present, as well as two Census Bureau contractors, Sam Huxley
and Christopher Lewitzke.242
The “deck” the Census Bureau wanted to discuss contained an overview of“Misinformation Topics” and included “concerns about infertility, misinformation about side
effects, and claims about vaccines leading to deaths.”243 For each topic, the deck included sample
slides and a statement from the CDC debunking the allegedly erroneous claim.244(6)

Crawford admits she began engaging in weekly meetings with Facebook,245 andemails verify that the CDC and Facebook were repeatedly discussing misinformation back andforth.246 The weekly meetings involved Facebook’s content-mediation teams. Crawford mainly
inquired about how Facebook was censoring COVID-19 misinformation in these meetings.247

237[Doc. No. 205-1 at 258–61]
Twitter with White House
239
Twitter with White House
240[Doc. No. 205-1 at 103]
241
[Id.]
242
[Doc. No. 205-34 at 3]
243[Id. at 4]
244[Id. at 6–14]
245[Doc. No. 205-1 at 68–69]
246[Doc. No. 205-9 at 1–4]
247
[Doc. No. 205-1 at 68–69]
238

41

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 42 of 155 PageID #:
26833

(7)

The CDC entered into an Intra-Agency Agreement (“IAA”) with the Census Bureau

to help advise on misinformation. The IAA required that the Census Bureau provide reports to the
CDC on misinformation that the Census Bureau tracked on social media.248 To aid in this endeavor,
Crawford asked Facebook to allow the Census Bureau to be added to CrowdTangle.249(8)After the March 2021 weekly meetings between Facebook, the CDC, and Census

Bureau began, Crawford began to press Facebook on removing and/or suppressing
misinformation. In particular, she stated, “The CDC would like to have more info… about what isbeing done on the amplification-side,” and the CDC “is still interested in more info on how you
view or analyze the data on removals, etc.”250 Further, Crawford noted, “It looks like the posts
from last week’s deck about infertility and side effects have all been removed. Were theseevaluated by the moderation team or taken down for another reason?”251 Crawford also questioned
Facebook about the CrowdTangle report showing local news coverage of deaths after receiving
the vaccine and questioned what Facebook’s approach is for “adding labels” to those stories.252
On April 13, 2021, Facebook emailed Crawford to propose enrolling CDC and Census
Bureau officials in a special misinformation reporting channel; this would include five CDC
officials and four Census Bureau officials. The portal was only provided to federal officials.253
On April 23, 2021, and again on April 28, 2021, Crawford emailed Facebook about a
Wyoming Department of Health report noting that the algorithms that Facebook and other socialmedia networks are using to “screen out postings of sources of vaccine misinformation” were also
screening out valid public health messages.254

248[Doc. No. 205-1 at 71–72, 110][Doc. No. 205-9 at 1]
250[Doc. No. 205-9 at 2]
251
[Id.]
252
[Doc. No. 205-9 at 1]
253[Doc. No. 205-11 at 2]
254[Doc. No. 205-38 at 2]249

42

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 43 of 155 PageID #:26834

On May 6, 2021, Crawford emailed Facebook a table containing a list of sixteen specificpostings on Facebook and Instagram that contained misinformation.255 Crawford stated in her
deposition that she knew when she “flagged” content for Facebook, they would evaluate andpossibly censor the content.256 Crawford stated CDC’s goal in flagging information for Facebook
was “to be sure that people have credible health information so that they can make the correct
health decisions.”257 Crawford continued to “flag” and send misinformation posts to Facebook,and on May 19, 2021,258 Crawford provided Facebook with twelve specific claims.
(9)

Facebook began to rely on Crawford and the CDC to determine whether claims

were true or false. Crawford began providing the CDC with “scientific information” for Facebook
to use to determine whether to “remove or reduce and inform.”259 Facebook was relying on the
CDC’s “scientific information” to determine whether statements made on its platform were trueor false.260 The CDC would respond to “debunk” claims if it had an answer.261 These included
issues like whether COVID-19 had a 99.96% survival rate, whether COVID-19 vaccines cause
bells’ palsy, and whether people who are receiving COVID-19 vaccines are subject to medical
experiments.262
Facebook content-mediation officials would contact Crawford to determine whether
statements made on Facebook were true or false.263 Because Facebook’s content-moderation
policy called for Facebook to remove claims that are false and can lead to harm, Facebook would

255[Doc. No. 205-10 at 1–3]
[Doc. No. 205-1 at 88]
257
[Id.]
258
[Doc. No. 205-12 at 1]
259[Id. at 2]260[Doc. No. 205-1 at 106]
261
[Id.]
262
[Doc. No. 205-12 at 1–2]
263
[Doc. No. 205-12 at 2]
256

43Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 44 of 155 PageID #:26835

remove and/or censor claims the CDC itself said were false.264 Questions by Facebook to the CDC
related to this content-moderation included whether spike proteins in COVID-19 vaccines are
dangerous and whether Guillain-Barre Syndrome or heart inflammation is a possible side effect of
the COVID-19 vaccine.265 Crawford normally referred Facebook to CDC subject-matter experts
or responded with the CDC’s view on these scientific questions.266(10)Facebook continued to send the CDC biweekly CrowdTangle content insightreports, which included trending topics such as Door-to-Door Vaccines, Vaccine Side Effects,
Vaccine Refusal, Vaccination Lawsuits, Proof of Vaccination Requirement, COVID-19 andUnvaccinated Individuals, COVID-19 Mandates, Vaccinating Children, and Allowing People toReturn to Religious Services.267(11)

On August 19, 2021, Facebook asked Crawford for a Vaccine Adverse Event

Reporting System (“VAERS”) meeting for the CDC to give Facebook guidance on how to address
VAERS-related “misinformation.”268 The CDC was concerned about VAERS-related
misinformation because users were citing VAERS data and reports to raise concerns about thesafety of vaccines in ways the CDC found to be “misleading.”269 Crawford and the CDC followed
up by providing written materials for Facebook to use.270 The CDC eventually had a meeting with
Facebook about VAERS-related misinformation and provided two experts for this issue.271(12)

On November 2, 2021, a Facebook content-moderation official reached out to the

CDC to obtain clarity on whether the COVID-19 vaccine was harmful to children. This was

264[Doc. No. 205-26 at 1–4]
[Doc. No. 205-18]
266[Doc. No. 205-1 at 140]
267
[Doc. No. 205-20 at 205–20]
268[Doc. No. 205-21]
269[Doc. No. 205-22]
270[Doc. No. 205-21]
271[Doc. No. 205-1 at 151–52]
265

44

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 45 of 155 PageID #:26836

following the FDA’s emergency use authorization (“EUA”) related to the COVID-19 vaccine.272
In addition to the EUA issue for children, Facebook identified other claims it sought clarity on
regarding childhood vaccines and vaccine refusals.273
The following Monday, November 8, 2021, Crawford followed up with a response fromthe CDC, which addressed seven of the ten claims Facebook had asked the CDC to evaluate. The
CDC rated six of the claims “False” and stated that any of these false claims could cause vaccine
refusal.274
The questions the CDC rated as “false” were:
1) COVID-19 vaccines weaken the immune system;2) COVID-19 vaccines cause auto-immune diseases;
3) Antibody-dependent enhancement (“ADE”) is a side effect of COVID-19
vaccines;
4) COVID-19 vaccines cause acquired immunodeficiency syndrome (AIDS);
5) Breast milk from a vaccinated parent is harmful to babies/children; and
6) COVID-19 vaccines cause multi-system inflammatory syndrome in children(MIS-C).
(13)

On February 3, 2022, Facebook again asked the CDC for clarification on whether

a list of claims were “false” and whether the claims, if believed, could contribute to vaccine
refusals.275 The list included whether COVID-19 vaccines cause ulcers or neurodegenerative
diseases such as Huntington’s and Parkinson’s disease; the FDA’s possible future issuance of an
EUA to children six months to four years of age; and questions about whether the COVID-19
vaccine causes death, heart attacks, autism, birth defects, and many others.276(14)

In addition to its communications with Facebook, the CDC and Census Bureau also

had involvement with Google/YouTube. On March 18, 2021, Crawford emailed Google, with the272[Doc. 205-23 at 1–2]
[Id.]
274
[Doc. No. 205–24]
275[Doc. No. 205-26 at 1]
276[Id. at 1–4]
273

45

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 46 of 155 PageID #:26837

subject line “COVID Misinfo Project.” Crawford informed Google that the CDC was now working
with the Census Bureau (who had been meeting with Google regularly) and wanted to set up atime to talk and discuss the “COVID Misinfo Project.”277 According to Crawford, the previous
Census project referred to the Census’ work on combatting 2020 Census misinformation.278
On March 23, 2021, Crawford sent a calendar invite for a March 24, 2021 meeting, which
included Crawford and five other CDC employees, four Census Bureau employees, and six
Google/YouTube officials.279 At the March 24, 2021 meeting, Crawford presented a slide deck
similar to the one prepared for the Facebook meeting. The slide deck was entitled “COVID
Vaccine Misinformation: Issue Overview” and included issues like infertility, side effects, anddeaths. The CDC and the Census Bureau denied that COVID-19 vaccines resulted in infertility,
caused serious side effects, or resulted in deaths. 280(15)On March 29, 2021, Crawford followed up with Google about using their “regular

4 p.m. meetings” to go over things with the Census.281 Crawford recalled that the Census was
asking for regular meetings with platforms, specifically focused on misinformation.282 Crawford
also noted that the reference to the “4 p.m. meeting” refers to regular biweekly meetings with
Google, which “continues to the present day.”283 Crawford also testified she had similar regularmeetings with Meta and Twitter, and previously had regular meetings with Pinterest. Crawford
stated these meetings were mostly about things other than misinformation, but misinformation was
discussed at the meetings.284

277[Doc. No. 205-28][Doc. No. 205-1 at 175]279
[Doc. No. 214-22 Jones Dec. Exh. T] SEALED DOCUMENT
280[Id.] SEALED DOCUMENT
281[Doc. No. 205-1 at 179–82]
282[Doc. No. 205-1 at 184–85]
283[Doc. No. 205-1 at 180]
284
[Id. at 181]
278

46

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 47 of 155 PageID #:
26838

(16)

On May 10, 2021, Crawford emailed Facebook to establish “COVID BOLO” (“Beon The Lookout”) meetings. Google and YouTube were included.285 Crawford ran the BOLO
meetings, and the Census Bureau official arranged the meetings and prepared the slide deck foreach meeting.286
The first BOLO meeting was held on May 14, 2021; the slide deck for the meeting wasentitled “COVID Vaccine Misinformation: Hot Topics” and included five “hot topics” with a
BOLO note for each topic. The five topics were: the vaccines caused “shedding”; a report madeon VAERS that a two-year old child died from the vaccine; other alleged misleading information
on VAERS reports; statements that vaccines were bioweapons, part of a depopulation scheme, or
contain microchips; and misinformation about the eligibility of twelve to fifteen year old children
for the vaccine.287 All were labeled as “false” by the CDC, and the potential impact on the public
was a reduction of vaccine acceptance.
The second BOLO meeting was held on May 28, 2021. The second meeting also contained
a slide deck with a list of three “hot topics” to BOLO: that the Moderna vaccine was unsafe; thatvaccine ingredients can cause people to become magnetic; and that the vaccines cause infertilityor fertility-related issues in men. All were labeled as false by the CDC, and possibly impacted
reduced vaccine acceptance.288
A third BOLO meeting scheduled for June 18, 2021, was cancelled due to the new
Juneteenth holiday. However, Crawford sent the slide deck for the meeting. The hot topics for thismeeting were: that vaccine particles accumulate in ovaries causing fertility; that vaccines contain285[Doc. No. 205-40][Doc. No. 205-1 at 246, 265–66]
287[Doc. No. 214-23 at 4–5] SEALED DOCUMENT
288[Doc. No. 214-24 at 3–7] SEALED DOCUMENT
286

47

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 48 of 155 PageID #:26839

microchips; and because of the risk of blood clots to vaccinated persons, airlines were discussing
a ban. All were labeled as false.289
The goal of the BOLO meetings was to be sure credible information was out there and toflag information the CDC thought was not credible for potential removal.290
On September 2, 2021, Crawford emailed Facebook and informed them of a BOLO for asmall but growing area of misinformation: one of the CDC’s lab alerts was misinterpreted andshared via social media.291(17)

The CDC Defendants also had meetings and/or communications with Twitter. On

April 8, 2021, Crawford sent an email stating she was “looking forward to setting up regular chats”
and asked for examples of misinformation. Twitter responded.292
On April 14, 2021, Crawford sent an email to Twitter giving examples of misinformation
topics, including that vaccines were not FDA approved, fraudulent cures, VAERS data taken outof context, and infertility. The list was put together by the Census Bureau team.293
On May 10, 2021, Crawford emailed Twitter to print out two areas of misinformation,
which included copies of twelve tweets.294 Crawford informed Twitter about the May 14, 2021
BOLO meeting and invited Twitter to participate. The examples of misinformation given at themeeting included: vaccine shedding; that vaccines would reduce the population; abnormal
bleeding; miscarriages for women; and that the Government was lying about vaccines. In a

289

[Doc. No. 214-25 at 2–7] SEALED DOCUMENT[Doc. No. 205-1 at 266]
291
[Doc. No. 205-22]292[Doc. No. 205-1 at 197, 205–33]
293[Doc. No. 205-33]
294[Doc. No. 205-34]
290

48

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 49 of 155 PageID #:26840

response, Twitter stated that at least some of the examples had been “reviewed and actioned.”295
Crawford understood that she was flagging posts for Twitter for possible censorship.296
Twitter additionally offered to enroll CDC officials in its “Partner Support Portal” toprovide expedited review of content flagged for censorship.297 Crawford asked for instructions of
how to enroll in the Partnership Support Portal and provided her personal Twitter account to enroll.
Crawford was fully enrolled on May 27, 2021.298 Census Bureau contractor Christopher Lewitzke(“Lewitzke”) also requested to enroll in the Partner Support Portal.299
Crawford also sent Twitter a BOLO for the alleged misinterpretation of a CDC lab
report.300(18)

Crawford testified in her deposition that the CDC has a strong interest in tracking

what its constituents are saying on social media.301 Crawford also expressed concern that if content
were censored and removed from social-media platforms, government communicators would notknow what the citizen’s “true concerns” were.302
D. NIAID Defendants303
The NIAID is a federal agency under HHS. Dr. Fauci was previously the Director of
NIAID. Dr. Fauci’s deposition was taken as a part of the limited preliminary injunction discovery
in this matter.304

295

[Id.]
[Doc. No. 205-1 at 211]
297
[Id. at 211–12]
298[Id. at 211–18]
299[Doc. No. 201-34 at 2]300[Doc. No. 201-35]
301[Doc. No. 201-1 at 57–58]
302[Id. at 75]
303
The NIAD Defendants consist of the National Institute of Allergy and Infectious Disease and Dr. Hugh Auchincloss(“Dr. Auchincloss”).
304[Doc. No. 206]
296

49

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 50 of 155 PageID #:
26841

1)

Dr. Fauci had been the director of the NIAID for over thirty-eight years and became

Chief Medical Advisor to the President in early 2021.305 Dr. Fauci retired December 31, 2022.
1. Lab-Leak Theory
Plaintiffs set forth arguments that because NIAID had funded “gain-of-function”306
research at Dr. Fauci’s direction at the Wuhan Institute of Virology (“Wuhan lab”) in Wuhan,
China, Dr. Fauci sought to suppress theories that the SARS-CoV2 virus leaked from the Wuhan
lab.307(1)

Plaintiffs allege that Dr. Fauci’s motive for suppressing the lab-leak theory was afear that Dr. Fauci and NIAID could be blamed for funding gain-of-function research that created
the COVID-19 pandemic. Plaintiffs allege Dr. Fauci participated in a secret call with otherscientists on February 1, 2020, and convinced the scientists (who were proponents of the lab-leaktheory) to change their minds and advocate for the theory that the COVID-19 virus originatednaturally.308 A few days after the February 1, 2020 call, a paper entitled “The Proximal Origin of
COVID-19” was published by Nature Medicine on March 17, 2020. The article concludes that
SARS-CoV2 was not created in a lab but rather was naturally occurring.
On February 2, 2020, Dr. Fauci told the other scientists that “given the concerns of so many
people and the threat of further distortions on social media it is essential that we move quickly.
Hopefully, we can get the WHO to convene.”309 Dr. Fauci emailed Dr. Tedros of the WHO andtwo senior WHO officials, urging WHO to quickly establish a working group to address the lableak theory. Dr. Fauci stated they should “appreciate the urgency and importance of this issue

305[Doc. No. 206-1 at 10 (Deposition of Dr. Anthony S. Fauci)]“Gain-of-function” research involves creating a potentially dangerous virus in a laboratory.
307[Doc. No. 212-3 at 151–85]
308[Id. at 165]
309
[Doc. No. 206-9 at 2]
306

50

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 51 of 155 PageID #:26842

given the gathering internet evident in the science literature and in mainstream and social media
to the question of the origin of this virus.” Dr. Fauci also stated WHO needed to “get ahead of…the narrative of this and not reacting to reports which could be very damaging.”310 Numerous
drafts of “The Proximal Origin of COVID-19” were sent to Dr. Fauci to review prior to the article
being published in Nature Medicine.311(2)

On February 9, 2020, in a joint podcast with Dr. Peter Daszak of the Eco HealthAlliance,312 both Drs. Fauci and Daszak discredited the lab-leak theory, calling it a “conspiracy
theory.”313(3)

Three authors of “The Proximal Origins of SARS-CoV2,” Robert Garry, KristianAnderson, and Ian Lipkin, received grants from NIH in recent years.314(4)

After “The Proximal Origins of SARS-CoV2” was completed and published in

Nature Medicine, Dr. Fauci began discrediting the lab-leak theory. “This study leaves little room
to refute a natural original for COVID-19.” “It’s a shining object (lab-leak theory) that will goaway in times.”315
At an April 17, 2020 press conference, when asked about the possibility of a lab-leak, Dr.
Fauci stated, “There was a study recently that we can make available to you, where a group of
highly qualified evolutionary virologists looked at the sequences there and the sequences in batsas they evolve. And the mutations that it took to get to the point where it is now is totally consistent

310[Doc. No. 206-9 at 1][Doc. No. 206-13 at 1, 7-8; 206-11 at 2–3; and 206–20]
312[Doc. No. 206-16 at 1]
313[Doc. No. 206-16 at 1; 206-17 at 1]
314[Doc. No. 214-30]
315[Doc. No. 206-27 at 3–4]
311

51

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 52 of 155 PageID #:26843

with jump of a species from animal to a human.”316 “The Proximal Origin of SARS-CoV2” hassince become one of the most widely read papers in the history of science.317(5)

Twitter and Facebook censored the lab-leak theory of COVID-19.318 However, Dr.

Fauci claims he is not aware of any suppression of speech about the lab-leak theory on social
media, and he claims he does not have a Twitter or Facebook account.319(6)

On March 15, 2020, Zuckerberg sent Dr. Fauci an email asking for coordination

between Dr. Fauci and Facebook on COVID-19 messaging. Zuckerberg asked Dr. Fauci to createa video to be used on Facebook’s Coronavirus Information Hub, with Dr. Fauci answering
COVID-19 health questions, and for Dr. Fauci to recommend a “point person” for the United States
Government “to get its message out over the platform.”320
Dr. Fauci responded the next day to Zuckerberg saying, “Mark your idea and proposalsounds terrific,” “would be happy to do a video for your hub,” and “your idea about PSAs is very
exciting.” Dr. Fauci did three live stream Facebook Q&A’s about COVID-19 with Zuckerberg.321
2. Hydroxychloroquine
Plaintiffs further allege the NIAID and Dept. of HHS Defendants suppressed speech onhydroxychloroquine. On May 22, 2020, The Lancet published an online article entitled“Hydroxychloroquine or chloroquine with or without a macrolide for treatment of COVID-19: amulti-national registry analysis.”322 The article purported to analyze 96,032 patients to compare
persons who did and did not receive this treatment. The study concluded that hydroxychloroquine

316(Video of April 17, 2020, White House Coronavirus Task Force Briefing, at https://www.youtube.com/watch?
v=brbArPX8=6I)
317[Doc. No. 214-30]
318[Doc. No. 206-32 at 1–2; Doc. No. 206-33 at 3]319[Doc. No. 206-1 at 210]
320
[Doc. No. 206-24 at 3]
321[Doc. No. 201-1 at 177]
322
[Doc. No. 206-36 at 1]

52

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 53 of 155 PageID #:26844

and chloroquine were associated with decreased in-hospital survival and an increased frequency
of ventricular arrhythmias when used for treatment of COVID-19.323
Dr. Fauci publicly cited this study to claim that “hydroxychloroquine is not effective
against coronavirus.”324 He then publicly began to discredit COVID-19 treatment withhydroxychloroquine and stated whether the treatment of COVID-19 by hydroxychloroquine was
effective could only be judged by rigorous, randomized, double-blind, placebo-based studies. He
testified the same on July 31, 2020, before the House Select Subcommittee on Coronavirus
Crisis.325(2)

When America’s Frontline Doctors held a press conference criticizing theGovernment’s response to the COVID-19 pandemic and spouting the benefits ofhydroxychloroquine in treating the coronavirus,326 Dr. Fauci made statements on Good Morning
America327 and on Andrea Mitchell Reports328 that hydroxychloroquine is not effective in treating
the coronavirus. Social-media platforms censored the America’s Frontline Doctors videos.
Facebook, Twitter, and YouTube removed the video.329 Dr. Fauci does not deny that he or his staff
at NIAID may have communicated with social-media platforms, but he does not specifically recall
it.3303. The Great Barrington Declaration(1)

The GBD was published online on October 4, 2020. The GBD was published by

Plaintiffs Dr. Bhattacharja of Stanford and Dr. Kulldorff of Harvard, along with Dr. Gupta of

323

[Id.]
[Doc. No. 206-35 at 1]
325
https://www.youtube.com/watch?v=RUNCSOQD2UE
326[Doc. No. 207-2 at 5]327[Doc. No. 207-1 at 2]
328[Doc. No. 207-1 at 2–3]
329
[Doc. No. 207-2 at 6]330[Doc. No. 206-1 at 238]
324

53

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 54 of 155 PageID #:26845

Oxford. The GBD is a one-page treatise opposing reliance on lockdowns and advocating for an
approach to COVID-19 called “focused protection.”331 It criticized the social distancing andlockdown approaches endorsed by government experts. The authors expressed grave concerns
about physical and mental health impacts of current government COVID-19 lockdown policies
and called for an end to lockdowns.332(2)

On October 8, 2020, Dr. Francis Collins emailed Dr. Fauci (and Cliff Lane) stating:
Hi Tony and Cliff, See https://gbdeclaration.org/. This proposal
from the three fringe epidemiologists who met with the Secretary
seems to be getting a lot of attention – and even a co-signature from
Nobel Prize winner Mike Leavitt at Stanford. There needs to be aquick and devastating published take down of its premises. I don’t
see anything like that online yet- is it underway? Francis.333

The same day, Dr. Fauci wrote back to Dr. Collins stating, “Francis: I am pasting in below a piecefrom Wired that debunks this theory. Best, Tony.”334
Dr. Fauci and Dr. Collins followed up with a series of public media statements attacking
the GBD. In a Washington Post story run on October 14, 2020, Dr. Collins described the GBD and
its authors as “fringe” and “dangerous.”335 Dr. Fauci consulted with Dr. Collins before he talked
to the Washington Post.336 Dr. Fauci also endorsed these comments in an email to Dr. Collins,
stating “what you said was entirely correct.”337
On October 15, 2020, Dr. Fauci called the GBD “nonsense” and “dangerous.”338 Dr. Fauci
specifically stated, “Quite frankly that is nonsense, and anybody who knows anything about

331[Doc. No. 207-5 at 3]
[Id.]
333
[Doc. No. 207-6]
334[Doc. No. 207-7]
335[Doc. No. 207-9]
336[Doc. No. 206-1 at 272]
337
[Doc. No. 207-10]
338[Doc. No. 207-11 at 1]
332

54

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 55 of 155 PageID #:26846

epidemiology will tell you that is nonsense and very dangerous.”339 Dr. Fauci testified “it’spossible that” he coordinated with Dr. Collins on his public statements attacking the GBD.340(3)

Social-media platforms began censoring the GBD shortly thereafter. In October

2020, Google de-boosted the search results for the GBD so that when Google users googled “Great
Barrington Declaration,” they would be diverted to articles critical of the GBD, and not to the GBD
itself.341 Reddit removed links to the GBD.342 YouTube updated its terms of service regarding
medical “misinformation,” to prohibit content about vaccines that contradicted consensus fromhealth authorities.343 Because the GBD went against a consensus from health authorities, its
content was removed from YouTube. Facebook adopted the same policies on misinformation
based upon public health authority recommendations.344 Dr. Fauci testified that he could not recall
anything about his involvement in seeking to squelch the GBD.345(4)

NIAID and NIH staff sent several messages to social-media platforms asking themto remove content lampooning or criticizing Dr. Fauci. When a Twitter employee reached out to
CDC officials asking if a particular account associated with Dr. Fauci was “real or not,” 346 Scott
Prince of NIH responded, “Fake/Imposter handle. PLEASE REMOVE!!!”347 An HHS official
then asked Twitter if it could “block” similar parody accounts: “Is there anything else you can also
do to block other variations of his (Dr. Fauci’s) name from impersonation so we don’t have this339

[Id. at 3][Doc. No. 206-1 at 279]
341
[Doc. No. 207-12 at 4]
342[Id. at 4–5]
343
[Doc. No. 207-13 at 4–5]
344
[Doc. No. 207-15]
345[Doc. No. 206-1 at 251–52, 255–58]
346[Doc. No. 207-17 at 2]
347
[Id.]
340

55

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 56 of 155 PageID #:26847

occur again?”348 Twitter replied, “We’ll freeze this @handle and some other variations so no one
can hop on them.”349
On April 21, 2020, Judith Lavelle of NIAID emailed Facebook, copying Scott Prince of
NIH and Jennifer Routh (“Routh”), and stated, “We wanted to flag a few more fake Dr. Fauci
accounts on FB and IG for you I have reported them from NIAID and my personal FB account.”350
Both Lavelle and Routh are members of Dr. Fauci’s communications staff.351 Six of the eightaccounts listed were removed by Facebook on the same day.352(5)

On October 30, 2020, a NIAID staffer wrote an email connecting Google/YouTube

with Routh, “so that NIAID and the ‘Google team’ could connect on vaccine communicationsspecifically misinformation.’”353 Courtney Billet (“Billet”), director of the Office ofCommunications and Government Relations of NIAID, was added by Routh, along with two other
NIAID officials, to a communications chain with YouTube.354 Twitter disclosed that Dina Perry(“Perry”), a Public Affairs Specialist for NIAID, communicates or has communicated with Twitter
about misinformation and censorship.355(6)

Dr. Fauci testified that he has never contacted a social-media company and asked

them to remove misinformation from one of their platforms.356
4. Ivermectin(8)

On September 13, 2021, Facebook emailed Carol Crawford of the CDC to ask

whether the claim that “Ivermectin is effective in treating COVID is false, and if believed, could

348[Id. at 1]
[Id.]
350
[Doc. No. 207-19 at 3]351[Doc. No. 206-1 at 308]
352
[Doc. No. 207-19 at 3]353[Doc. No. 207-20 at 1]
354
[Id.]
355
[Doc. No. 214-8 at 1]
356[Doc. No. 206-1 at 151]
349

56

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 57 of 155 PageID #:26848

contribute to people refusing the vaccine or self-medicating.”357 The CDC responded the next day
and advised Facebook that the claim that Ivermectin is effective in treating COVID is “NOTACCURATE.”358 The CDC cited the NIH’s treatment guidelines for authority that the claims were
not accurate.359
5. Mask Mandates(9)

Plaintiffs maintain that Dr. Fauci initially did not believe masks worked, but hechanged his stance. A February 4, 2020 email, in which Dr. Fauci responded to an email from
Sylvia Burwell, stated, “the typical mask you buy in a drugstore is not really effective in keeping
out the virus, which is small enough to pass through mankind.”360 Dr. Fauci stated that, at thattime, there were “no studies” on the efficacy of masking to stop the spread.361 On March 31, 2020,
Dr. Fauci forwarded studies showing that masking is ineffective.362
Plaintiffs allege that Dr. Fauci’s position on masking changed dramatically on April 3,
2020, when he became an advocate for universal mask mandates.363 Dr. Fauci testified his positionchanged in part because “evidence began accumulating that masks actually work in preventing
acquisition and transmission,”364 although Dr. Fauci could not identify those studies.365

357[Doc. No. 207-22 at 2][Id. at 1]
359
[Id.]
360
[Doc. No. 206-1 at 314]
361
[Id. at 316]
362
[Id. at 318]
363
[Id. at 317]
364
[Id.]
365
[Id. at 318]
358

57

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 58 of 155 PageID #:26849

6. Alex Berenson
Alex Berenson (“Berenson”) was a former New York Times Science reporter and critic ofgovernment messaging about COVID-19 vaccines. He was de-platformed from Twitter on August28, 2021.366
Dr. Fauci had previously sought to discredit Berenson publicly during an interview with
CNN.367 Dr. Fauci does not deny that he may have discussed Berenson with White House or federal
officials, but does not recall specifically whether he did so.368
E.
(1)

FBI Defendants369

The deposition of Elvis Chan (“Chan”) was taken on November 29, 2021.370 Chanis the Assistant Special Agent in charge of the Cyber Branch for the San Francisco Division of theFBI.371 In this role, Chan was one of the primary people communicating with social-media
platforms about disinformation on behalf of the FBI. There are also other agents on different cybersquads, along with the FBI’s private sector engagement squad, who relay information to socialmedia platforms.372
Chan graduated from the Naval Postgraduate School in 2020 with a M.A. in Homeland
Security Studies.373 His thesis was entitled, “Fighting Bears and Trolls. An Analysis of Social
Media Companies and U.S. Government Efforts to Combat Russian Influence Campaigns During
the 2020 U.S. Elections.”374 His thesis focuses on information sharing between the FBI, Facebook,366[Doc. No. 207-23 at 4][Doc. No. 207-24 at 1–2]
368
[Doc. No. 206-1 at 341–43]
369
FBI Defendants include Elvis Chan (“Chan”), the Federal Bureau of Investigation (“FBI”), Lauren Dehmlow(“Dehmlow”), and the U.S. Department of Justice (“DOJ”).
370[Doc. No. 204-1]
371[Id. at 8]
372[Id. at 105]
373
[Id. at 10]374[Doc. No. 204-2 at 1]
367

58

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 59 of 155 PageID #:26850

Google, and Twitter.375 Chan relied on research performed by persons and entities comprising theElection Integrity Partnership, including Graphika,376 and DiResta of the Stanford Internet
Observatory. Chan communicated directly with DiResta about Russian disinformation.377
Chan also knows Alex Stamos (“Stamos”), the head of the Stanford Internet Observatory,
from when Stamos worked for Facebook.378 Chan and Stamos worked together on “malignforeign-influence activities, on Facebook.”379(2)

Chan stated that the FBI engages in “information sharing” with social-media

companies about content posted on their platforms, which includes both “strategic-level
information” and “tactical information.”380(3)

The FBI, along with Facebook, Twitter, Google/YouTube, Microsoft, Yahoo!,

Wikimedia Foundation, and Reddit, participate in a Cybersecurity and Infrastructure Security
Agency (“CISA”) “industry working group.”381 Representatives of CISA, the Department ofHomeland Security’s Intelligence & Analysis Division (“I&A”), the Office of Director of National
Intelligence (“ODNI”), the FBI’s FITF, the Dept. of Justice National Security Division, and Chanparticipate in these industry working groups.382
Chan participates in the meetings because most social-media platforms are headquarteredin San Francisco, and the FBI field offices are responsible for maintaining day-to-day relationships
with the companies headquartered in its area of responsibility.383

375[Id. at 18][Doc. No. 204-1 at 145]
377
[Doc. No. 204-1 at 51–52, 85]378[Id. at 54]
379[Id at 55]
380[Id. at 16–19]
381[Id. at 18, 23–24]
382[Id. at 24, 171]383
[Id. at 24]37659

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 60 of 155 PageID #:26851

Matt Masterson (“Masterson”) was the primary facilitator in the meetings for the 2022
election cycle, and Brian Scully (“Scully”) was the primary facilitator ahead of the 2022
election.384 At the USG-Industry (“the Industry”) meetings, social-media companies shareddisinformation content, providing a strategic overview of the type of disinformation they wereseeing. The FBI would then provide strategic, unclassified overviews of things they were seeing
from Russian actors.385
The Industry meetings were “continuing” at the time Chan’s deposition was taken on
November 23, 2022, and Chan assumes the meetings will continue through the 2024 election
cycle.386(4)

Chan also hosted bilateral meetings between FBI and Facebook, Twitter,

Google/YouTube, Yahoo!/Verizon, Microsoft/LinkedIn, Wikimedia Foundation and Reddit,387
and the Foreign Influence Task Force.388 In the Industry meetings, the FBI raised concerns about
the possibility of “hack and dump” operations during the 2020 election cycle.389 The bilateralmeetings are continuing, occurring quarterly, but will increase to monthly and weekly nearer theelections.390
In the Industry meetings, FBI officials meet with senior social-media platforms in the “trustand safety or site integrity role.” These are the persons in charge of enforcing terms of service andcontent-moderation policies.391 These meetings began as early as 2017.392 At the Industry

384[Id. at 25–26][Id. at 156–57]
386[Id. at 285–86]
387[Id. at 23–24]
388[Id. at 39]
389
[Id.]
390
[Id. at 40]
391[Id. at 43–44]
392[Id. at 87–89]
385

60

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 61 of 155 PageID #:26852

meetings, in addition to Chan and Laura Dehmlow (“Dehmlow”), head of the FITF, between three
and ten FITF officials and as high as a dozen FBI agents are present.393(5)

On September 4, 2019, Facebook, Google, Microsoft, and Twitter along with the

FITF, ODNI, and CISA held a meeting to discuss election issues. Chan attended, along with
Director Krebs, Masterson, and Scully. Social media’s trust and safety on content-moderation
teams were also present. The focus of the meeting was to discuss with the social-media companies
the spread of “disinformation.”394(6)

Discovery obtained from LinkedIn contained 121 pages of emails between Chan,other FBI officials, and LinkedIn officials.395 Chan testified he has a similar set of communications
with other social-media platforms.396(7)

The FBI communicated with social-media platforms using two alternative,

encrypted channels, Signal and Teleporter.397(8)

For each election cycle, during the days immediately preceding and throughelection days, the FBI maintains a command center around the clock to receive and forward reportsof “disinformation” and “misinformation.” The FBI requests that social-media platforms havepeople available to receive and process the reports at all times.398(9)Before the Hunter Biden Laptop story breaking prior to the 2020 election on

October 14, 2020, the FBI and other federal officials repeatedly warned industry participants to bealert for “hack and dump” or “hack and leak” operations.399

393[Id. at 109–10][Id. at 151]
395
[Doc. No. 204-3]
396
Doc. No. 204-1 at 288]
397
[Id. at 295–296]
398[Id. at 301]
399
[Doc. No. 204-1 at 172, 232–34]
394

61

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 62 of 155 PageID #:26853

Dehmlow also mentioned the possibility of “hack and dump” operations.400 Additionally,
the prospect of “hack and dump” operations was repeatedly raised at the FBI-led meetings with
FITF and the social-media companies, in addition to the Industry meetings.401
Social-media platforms updated their policies in 2020 to provide that posting “hacked
materials” would violate their policies. According to Chan, the impetus for these changes was therepeated concern about a 2016-style “hack-and-leak” operation.402 Although Chan denies that the
FBI urged the social-media platforms to change their policies on hacked material, Chan did admitthat the FBI repeatedly asked the social-media companies whether they had changed their policies
with regard to hacked materials403 because the FBI wanted to know what the companies would do
if they received such materials.404(10)

Yoel Roth (“Roth”), the then-Head of Site Integrity at Twitter, provided a formal

declaration on December 17, 2020, to the Federal Election Commission containing acontemporaneous account of the “hack-leak-operations” at the meetings between the FBI, othernatural-security agencies, and social-media platforms.405 Roth’s declaration stated:
Since 2018, I have had regular meetings with the Office of the
Director of National Intelligence, the Department of Homeland
Security, the FBI, and industry peers regarding election security.
During these weekly meetings, the federal law enforcement
agencies communicated that they expected “hack-and-leak”
operations by state actors might occur during the period shortly
before the 2020 presidential election, likely in October. I was told inthese meetings that the intelligence community expected that
individuals associated with political campaigns would be subject tohacking attacks and that material obtained through those hacking
attacks would likely be disseminated over social-media platforms,
including Twitter. These expectations of hack-and-leak operations
400[Id. at 175]
[Id. at 177–78]
402[Id. at 205]
403
[Id. at 206]
404
[Id. at 249]
405
[Doc. No. 204-5, ¶¶ 10-11, at 2–3]
40162Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 63 of 155 PageID #:26854

were discussed through 2020. I also learned in these meetings that
there were rumors that a hack-and-leak operation would involve
Hunter Biden.406
Chan testified that, in his recollection, Hunter Biden was not referred to in any of the CISA
Industry meetings.407 The mention of “hack-and-leak” operations involving Hunter Biden issignificant because the FBI previously received Hunter Biden’s laptop on December 9, 2019, andknew that the later-released story about Hunter Biden’s laptop was not Russian disinformation.408
In Scully’s deposition,409 he did not dispute Roth’s version of events.410
Zuckerberg testified before Congress on October 28, 2020, stating that the FBI conveyeda strong risk or expectation of a foreign “hack-and-leak” operation shortly before the 2020 election
and that the social-media companies should be on high alert. The FBI also indicated that if a troveof documents appeared, they should be viewed with suspicion.411(11)

After the Hunter Biden laptop story broke on October 14, 2020, Dehmlow refused

to comment on the status of the Hunter Biden laptop in response to a direct inquiry from Facebook,although the FBI had the laptop in its possession since December 2019.412
The Hunter Biden laptop story was censored on social media, including Facebook andTwitter.413 Twitter blocked users from sharing links to the New York Post story and prevented
users who had previously sent tweets sharing the story from sending new tweets until they deleted

406(emphasis added)[Doc. No. 204-1 at 213, 227–28].
408[Doc. No. 106-3 at 5–11]
409[Doc. No. 209]410
[Id. at 247]
411
[Doc. 204-6 at 56]
412[Doc. No. 204-1 at 215]
413
[Doc. No. Doc 204-5 at ¶ 17]407

63

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 64 of 155 PageID #:26855

the previous tweet.414 Further, Facebook began reducing the story’s distribution on the platformpending a third-party fact-check.415(12)

Chan further testified that during the 2020 election cycle, the United States

Government and social-media companies effectively limited foreign influence companies throughinformation sharing and account takedowns.416 Chan’s thesis also recommended standardized
information sharing and the establishment of a national coordination center.
According to Chan, the FBI shares this information with social-media platforms as it relates
to information the FBI believes should be censored.417 Chan testified that the purpose andpredictable effect of the tactical information sharing was that social-media platforms would takeaction against the content in accordance with their policies.418 Additionally, Chan admits thatduring the 2020 election cycle, the United States Government engaged in information sharing withsocial-media companies.419 The FBI also shared “indicators” with state and local government
officials.420
Chan’s thesis includes examples of alleged Russian disinformation, which had a numberof reactions and comments from Facebook users, including an anti-Hillary Clinton post, a secureborder post, a Black Lives Matter post, and a pro-Second Amendment post.421
Chan also identified Russian-aligned websites on which articles were written by freelance
journalists. A website called NADB, alleged to be Russian-generated, was also identified by theFBI, and suppressed by social-media platforms, despite such content being drafted and written by

414

[Id.]
[Doc. No. 204-6 at 2]
416[Doc. No. 204-2 at 3]
417
[Id.]
418
[Id. at 32–33]
419[Id. at 19]
420[Id. at 50]
421
[Id.]
415

64

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 65 of 155 PageID #:26856

American users on that site.422 The FBI identified this site to the social-media companies that took
action to suppress it.423(13)“Domestic disinformation” was also flagged by the FBI for social-media platforms.

Just before the 2020 election, information would be passed from other field offices to the FBI 2020
election command post in San Francisco. The information sent would then be relayed to the socialmedia platforms where the accounts were detected.424 The FBI made no attempt to distinguishwhether those reports of election disinformation were American or foreign.425
Chan testified the FBI had about a 50% success rate in having alleged election
disinformation taken down or censored by social-media platforms.426 Chan further testified that
although the FBI did not tell the social-media companies to modify their terms of service, the FBI
would “probe” the platforms to ask for details about the algorithms they were using427 and what
their terms of service were.428(14)Chan further testified the FBI identifies specific social-media accounts and URLs

to be evaluated “one to five times a month”429 and at quarterly meetings.430 The FBI would notify
the social-media platforms by sending an email with a secure transfer application within the FBI
called a “Teleporter.” The Teleporter email contains a link for them to securely download the files
from the FBI.431 The emails would contain “different types of indicators,” including specific422[Id. at 144–46][Doc. No. 204-1 at 141-43]
424[Id. at 162]
425
[Id. at 163]
426
[Id. at 167]
427
[Id. at 88]
428[Id. at 92]
429[Id. at 96]
430[Id. at 98]
431
[Id.]
423

65

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 66 of 155 PageID #:26857

social-media accounts, websites, URLs, email accounts, and the like, that the FBI wanted theplatforms to evaluate under their content-moderation policies.432
Most of the time, the emails flagging the misinformation would go to seven social-media
platforms. During 2020, Chan estimated he sent out these emails from one to six times per monthand in 2022, one to four times per month. Each email would flag a number that ranged from one
to dozens of indicators.433 When the FBI sent these emails, it would request that the social-media
platforms report back on the specific actions taken as to these indicators and would also follow up
at the quarterly meetings.434(15)

At least eight FBI agents at the San Francisco office, including Chan, are involved

in reporting disinformation to social-media platforms.435 In addition to FBI agents, a significant
number of FBI officials from the FBI’s Foreign Influence Task Force also participate in regularmeetings with social-media platforms about disinformation.436
Chan testified that the FBI uses its criminal-investigation authority, national-security
authority, the Foreign Intelligence Surveillance Act, the PATRIOT Act, and Executive Order12333 to gather national security intelligence to investigate content on social media.437
Chan believes with a high degree of confidence that the FBI’s identification of “tacticalinformation” was accurate and did not misidentify accounts operated by American citizens.438
However, Plaintiffs identified tweets and trends on Twitter, such as #ReleasetheMemo in 2019,and indicated that 929,000 tweets were political speech by American citizens.439

432[Id. at 99][Id. at 100–01]
434[Id. at 102–03]
435[Id. at 105–08]
436[Id. at 108]437
[Id. at 111–12]
438[Id. at 112]
439
[Doc. No. 204-2 at 71]
433

66

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 67 of 155 PageID #:
26858

(16)

Chan testified that he believed social-media platforms were far more aggressive intaking down disfavored accounts and content in the 2018 and 2020 election cycles.440 Chan further
thinks that pressure from Congress, specifically the House Permanent Select Committee onIntelligence and the Senate Select Committee on Intelligence, resulted in more aggressive
censorship policies.441 Chan also stated that congressional hearings placed pressure on the socialmedia platforms.442
Chan further testified that Congressional staffers have had meetings with Facebook,
Google/YouTube, and Twitter and have discussed potential legislation.443 Chan spoke directlywith Roth of Twitter, Steven Slagle of Facebook, and Richard Salgado of Google, all of whom
participated in such meetings.444(17)

Chan testified that 3,613 Twitter accounts and 825 Facebook accounts were taken

down in 2018. Chan testified Twitter took down 422 accounts involving 929,000 tweets in 2019.445(18)

Chan testified that the FBI is continuing its efforts to report disinformation tosocial-media companies to evaluate for suppression and/or censorship.446 “Post-2020, we’ve neverstopped…as soon as November 3 happened in 2020, we just pretty much rolled into preparing for2022.”447

440[Id. at 115–16][Id. at 116]
442
[Id. at 117–18]
443[Id. at 118]
444
[Id. at 123–26]
445[Id. at 133–34, 149–50]
446[Doc. No. 204-8 at 2–3]
447
[Doc. No. 204-8 at 2]
441

67

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 68 of 155 PageID #:26859

E. CISA Defendants448
The deposition of Brian Scully was taken on January 12, 2023, as part of the injunctionrelated discovery in this matter.
(1)

The CISA regularly meets with social-media platforms in several types of standing

meetings. Scully is the chief of CISA’s Mis, Dis and Malinformation Team (“MDM Team”). Prior
to President Biden taking office, the MDM Team was known as the “Countering Foreign Influence
Task Force (“CFITF”).449 Protentis is the “Engagements Lead” for the MDM Team, and she is incharge of outreach and engagement to key stakeholders, interagency partners, and private sector
partners, which includes social-media platforms. Scully performed Protentis’s duties while she
was on maternity leave.450 Both Scully and Protentis have done extended detail at the National
Security Council, where they work on misinformation and disinformation issues.451(2)

Scully testified that during 2020, the MDM Team did “switchboard work” on behalfof election officials. “Switchboarding” is a disinformation-reporting system provided by CISA thatallows state and local election officials to identify something on social media they deem to bedisinformation aimed at their jurisdiction. The officials would then forward the information to
CISA, which would in turn share the information with the social-media companies.452
The main idea, according to Scully, is that the information would be forwarded to socialmedia platforms, which would make decisions on the content based on their policies. 453 Scully
further testified he decided in late April or early May 2022 not to perform switchboarding in 2022.

CISA Defendants consist of the Cybersecurity and Infrastructure Security Agency (“CISA”), Jen Easterly(“Easterly”), Kim Wyman (“Wyman”), Lauren Protentis (“Protentis”), Geoffrey Hale (“Hale”), Allison Snell(“Snell”), Brian Scully (“Scully”), the Department of Homeland Security (“DHS”), Alejandro Mayorkas(“Mayorkas”), Robert Silvers (“Silvers”), and Samantha Vinograd (“Vinograd”).
449[Doc. No. 209-1 at 12]
450[Id. at 18–20]
451[Id. at 19]452[Id. at 16–17]
453[Id. at 17]448

68

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 69 of 155 PageID #:26860

However, the CISA website states the MDM Team serves as a “switchboard for routing
disinformation concerns to social-media platforms.”454 The switchboarding activities began in
2018.455(3)

The MDM Team continues to communicate regularly with social-media platforms

in two different ways. The first way is called “Industry” meetings. The Industry meetings are
regular sync meetings between government and industry, including social-media platforms.456 The
second type of communication involves the MDM Team reviewing regular reports from socialmedia platforms about changes to their censorship policies or to their enforcement actions on
censorship.457(4)

The Industry meetings began in 2018 and continue to this day. These meetings

increase in frequency as each election nears. In 2022, the Industry meetings were monthly but
increased to biweekly in October 2022.458
Government participants in the USG-Industry meetings are CISA, the Department ofJustice (“DOJ”), ODNI, and the Department of Homeland Security (“DHS”). CISA is typically
represented by Scully and Hale. Scully’s role is to oversee and facilitate the meetings.459 Wyman,
Snell, and Protentis also participate in the meetings on behalf of CISA. 460 On behalf of the FBI,FITF Chief Dehmlow, Chan, and others from different parts of the FBI participate.461
In addition to the Industry meetings, CISA hosts at least two “planning meetings:” one
between CISA and Facebook and an interagency meeting between CISA and other participating

454[Doc. No. 209-19 at 3]
[Id.]
456
[Doc. No. 209-1 at 21]
457
[Id.]
458
[Id. at 24]
459[Id. at 25]
460[Id. at 28]
461[Id. at 29]455

69

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 70 of 155 PageID #:26861

federal agencies.462 The social-media platforms attending the industry meetings include Facebook,
Twitter, Microsoft, Google/YouTube, Reddit, LinkedIn, and sometimes the Wikipedia
Foundation.463 At the Industry meetings, participants discuss concerns about misinformation anddisinformation. The federal officials report their concerns over the spread of disinformation. The
social-media platforms in turn report to federal officials about disinformation trends, share highlevel trend information, and repot the actions they are taking.464 Scully testified that the specificdiscussion of foreign-originating information is ultimately targeted at preventing domestic actors
from engaging in this information.465(5)

CISA has established relationships with researchers at Stanford University, theUniversity of Washington, and Graphika.466 All three are involved in the Election Integrity
Partnership (“EIP”).467
When the EIP was starting up, CISA interns came up with the idea of having somecommunications with the EIP. CISA began having communications with the EIP, and CISA
connected the EIP with the Center for Internet Security (“CIS”). The CIS is a CISA-funded, nonprofit that channels reports of disinformation from state and local government officials to socialmedia platforms. The CISA interns who originated the idea of working with the EIP also worked
for the Stanford Internet Observatory, another part of the EIP. CISA had meetings with Stanford
Internet Observatory officials, and eventually both sides decided to work together.468 The “gap”

462[Id. at 36–37][Id. at 39]
464[Id. at 39–41]
465[Id. at 41]
466[Id. at 46, 48]
467[Id. at 48]
468[Id. at 49–52]
463

70

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 71 of 155 PageID #:26862

that the EIP was designed to fill concerned state and local officials’ lack of resources to monitor
and report on disinformation that affects their jurisdictions.469(6)

The EIP continued to operate during the 2022 election cycle. At the beginning of

the election cycle, the EIP gave Scully and Hale, on behalf of CISA, a briefing in May or June of2022.470 In the briefing, DiResta walked through what the plans were for 2022 and some lessons
learned from 2020. The EIP was going to support state and local election officials in 2022.
(7)

The CIS is a non-profit that oversees the Multi-State Information Sharing andAnalysis Center (“MS-ISAC”) and the Election Infrastructure Information Sharing and Analysis
Center (“EI-ISAC”). Both MS-ISAC and EI-ISAC are organizations of state and/or local
government officials created for the purpose of information sharing.471
CISA funds the CIS through a series of grants. CISA also directs state and local officials
to the CIS as an alternative route to “switchboarding.”472 CISA connected the CIS with the EIP
because the EIP was working on the same mission,473 and it wanted to make sure they were allconnected. Therefore, CISA originated and set up collaborations between local government
officials and CIS and between the EIP and CIS.
(8)

CIS worked closely with CISA in reporting misinformation to social-media

platforms. CIS would receive the reports directly from election officials and would forward thisinformation to CISA. CISA would then forward the information to the applicable social-media
platforms. CIS later began to report the misinformation directly to social-media platforms.474

469[Id. at 57][Id. at 53–54]
471[Id. at 59–61]
472[Id. at 61–62]
473[Id. at 62–63]
474[Id. at 63–64]
470

71

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 72 of 155 PageID #:26863

The EIP also reported misinformation to social-media platforms. CISA served as amediating role between CIS and EIP to coordinate their efforts in reporting misinformation to theplatforms. There were also direct email communications between the EIP and CISA about
reporting misinformation.475 When CISA reported misinformation to social-media platforms,
CISA would generally copy the CIS, who, as stated above, was coordinating with the EIP.476(9)

Stamos and DiResta of the Stanford Internet Observatory briefed Scully about theEIP report, “The Long Fuse,”477 in late Spring or early Summer of 2021. Scully also reviewed
copies of that report. Stamos and DiResta also have roles in CISA: DiResta serves as “Subject
Matter Expert” for CISA’s Cybersecurity Advisory Committee, MDM Subcommittee, and Stamos
serves on the CISA Cybersecurity Advisory Committee, as does Kate Starbird (“Starbird”) of the
University of Washington.478 Stamos identified the EIP’s “partners in government” as CISA, DHS,
and state and local officials.479 Also, according to Stamos, the EIP targeted “large following
political partisans who were spreading misinformation intentionally.”480(10)

CISA’s Masterson was also involved in communicating with the EIP.481 Masterson

and Scully questioned EIP about their statements on election-related information. Sanderson left
CISA in January 2021, was a fellow at the Stanford Internet Observatory, and began working forMicrosoft in early 2022.482

475[Id. at 63–66][Id. at 67–68]
477[Doc. 209-2]
478[Doc. No. 209-1, at 72, 361; Doc. No. 212-36 at 4 (Jones Deposition-SEALED DOCUMENT)]
479[Doc. No. 209-4 at 4]480[Scully depo. Exh. at l7]
481[Doc. No. 209-1 at 76]
482[Id. at 88–89]
47672

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 73 of 155 PageID #:
26864

(11)

CISA received misinformation principally from two sources: the CIS directly fromstate and local election officials; and information sent directly to a CISA employee.483 CISA shared
information with the EIP and the CIS.484(12)

CISA did not do an analysis to determine what percentage of misinformation was“foreign derived.” Therefore, CISA forwards reports of information to social-media platforms
without determining whether they originated from foreign or domestic sources.485(13)

The Virality Project was created by the Stanford Internet Observatory to mimic theEIP for COVID.486 As previously stated, Stamos and DiResta of the Stanford Internet Observatory
were involved in the Virality Project. Stamos gave Scully an overview of what they planned to dowith the Virality Project, similar to what they did with the EIP.487 Scully also had conversations
with DiResta about the Virality Project.488 DiResta noted the Virality Project was established on
the heels of the EIP, following its success in order to support government health officials’ efforts
to combat misinformation targeting COVID-19 vaccines.489(14)

According to DiResta, the EIP was designed to “get around unclear legal

authorities, including very real First Amendment questions” that would arise if CISA or othergovernment agencies were to monitor and flag information for censorship on social media.490(15)

The CIS coordinated with the EIP regarding online misinformation and reported it

to CISA. The EIP was using a “ticketing system” to track misinformation.491 Scully asked thesocial-media platforms to report back on how they were handling reports of misinformation and483[Id. at 119–20][Id. at 120–21]
485[Id. at 122–23]
486[Id. at 134]487
[Id. at 134–36]
488[Id. at 139]
489
[Doc. No. 209-5 at 7]
490[Id. at 4]491[Doc. No. 209-1 at 159]
484

73

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 74 of 155 PageID #:26865

disinformation received from CISA.492 CISA maintained a “tracking spreadsheet” of its
misinformation reports to social-media platforms during the 2020 election cycle.493(16)

At least six members of the MDM team, including Scully, “took shifts” in the“switchboarding” operation reporting disinformation to social-media platforms; the others were
Chad Josiah (“Josiah”), Rob Schaul (“Schaul”), Alex Zaheer (“Zaheer”), John Stafford(“Stafford”), and Pierce Lowary (“Lowary”). Lowary and Zaheer were simultaneously serving as
interns for CISA and working for the Stanford Internet Observatory, which was the operating theEIP.494 Therefore, Zaheer and Lowary were simultaneously engaged in reporting misinformation
to social-media platforms on behalf of both CISA and the EIP.495 Zaheer and Lowary were also
two of the four Stanford interns who came up with the idea for the EIP.496(17)

The CISA switchboarding operation ramped up as the election drew near. Those

working on the switchboarding operation worked tirelessly on election night.497 They would also“monitor their phones” for disinformation reports even during off hours so that they could forwarddisinformation to the social-media platforms.498(18)

As an example, Zaheer, when switchboarding for CISA, forwarded supposed

misinformation to CISA’s reporting system because the user had claimed “mail-in voting is
insecure” and that “conspiracy theories about election fraud are hard to discount.”499
CISA’s tracking spreadsheet contains at least eleven entries of switchboarding reports of
misinformation that CISA received “directly from EIP” and forwarded to social-media platforms

492[Doc. No. 209-6 at 11][Doc. No. 209-1 at 165–66]
494[Id. at 166–68, 183]
495
[Id.]
496
[Id. at 171, 184–85]
497[Id. at 174–75]
498[Id. at 75]
499[Doc. No. 209-6 at 61–62]
493

74

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 75 of 155 PageID #:26866

to review under their policies.500 One of these reports was reported to Twitter for censorshipbecause EIP “saw an article on the Gateway Pundit” run by Plaintiff Jim Hoft.501(19)

Scully admitted that CISA engaged in “informal fact checking” to determine

whether a claim was true or not.502 CISA would do its own research and relay statements frompublic officials to help debunk postings for social-media platforms. In debunking information,
CISA apparently always assumed the government official was a reliable source; CISA would not
do further research to determine whether the private citizen posting the information was correct ornot.503(20)

CISA’s switchboarding activities reported private and public postings. 504 Social-media platforms responded swiftly to CISA’s reports of misinformation.505(21)

CISA, in its interrogatory responses, disclosed five sets of recurring meetings withsocial-media platforms that involved discussions of misinformation, disinformation, and/or
censorship of speech on social media.506 CISA also had bilateral meetings between CISA and thesocial-media companies.507(22)

Scully does not recall whether “hack and leak” or “hack and dump” operations wereraised at the Industry meetings, but does not deny it either.508 However, several emails confirm
that “hack and leak” operations were on the agenda for the Industry meeting on September 15,
2020,509 and July 15, 2020.510500[Doc. No. 214-35 at 5–6, Column C][Id. at 4–5, Column F, Line 94]
502
CISA also became the “ministry of truth.”503[Doc. No. 209-1 at 220–22]504[Doc. No. 209-7 at 45–46]
505[Doc. No. 209-1 at 291–94; 209–49]
506[Doc. No. 209-9 at 38–40]
507[Doc. No. 209-1 at 241]
508
[Id. at 236–37]
509[Doc. No. 209-13 at 1]510[Doc. No. 209-14 at 16]
501

75

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 76 of 155 PageID #:
26867

(23)

In the spring and summer of 2022, CISA’s Protentis requested that social-media

platforms prepare a “one-page” document that sets forth their content-moderation rules511 that
could then be shared with election officials—and which also included “steps for flagging or
escalating MDM content” and how to report misinformation.512 Protentis referred to the working
group (which included Facebook and CISA’s Hale) as “Team CISA.”513(24)

The Center for Internet Security continued to report misinformation to social-media

platforms during the 2022 election cycle.514(25)

CISA has teamed up directly with the State Department’s Global Engagement

Center (“GEC”) to seek review of social-media content.515 CISA also flagged for review parodyand joke accounts.516 Social-media platforms report to CISA when they update their contentmoderation policies to make them more restrictive.517 CISA publicly stated that it is expanding its
efforts to fight disinformation-hacking in the 2024 election cycle.518(26)

A draft copy of the DHS’s “Quadrennial Homeland Security Review,” which

outlines the department’s strategy and priorities in upcoming years, states that the department plansto target “inaccurate information” on a wide range of topics, including the origins of the COVID19 pandemic, the efficacy of COVID-19 vaccines, racial justice, the United States’ withdrawal
from Afghanistan, and the nature of the United States’ support of Ukraine.519

511[Doc. No. 209-14][Doc. No. 209-15 at 41, 44–45]
513[Doc. No. 209-15 at 39]
514[Doc. No. 209-1 at 266]
515
[Doc. No. 209-15 at 1–2]
516
[Id. at 11–12]
517[Id. at 9]518[Doc. No. 209-20 at 1–2]
519
[Doc. No. 209-23 at 1–4]
51276

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 77 of 155 PageID #:
26868

(27)

Scully also testified that CISA engages with the CDC and DHS to help them intheir efforts to stop the spread of disinformation. The examples given were about the origins of the
COVID-19 pandemic and Russia’s invasion of Ukraine.520(28)

On November 21, 2021, CISA Director Easterly reported that CISA is “beefing up

its misinformation and disinformation team in wake of a diverse presidential election aproliferation of misleading information online.”521 Easterly stated she was going to “grow andstrengthen” CISA’s misinformation and disinformation team. She further stated, “We live in aworld where people talk about alternative facts, post-truth, which I think is really, really dangerous
if people get to pick their own facts.”522
Easterly also views the word “infrastructure” very expansively, stating, “[W]e’re in thebusiness of protecting critical infrastructure, and the most critical is our ‘cognitive
infrastructure.’”523 Scully agrees with the assessment that CISA has an expansive mandate toaddress all kinds of misinformation that may affect control and that could indirectly cause national
security concerns.524
On June 22, 2022, CISA’s cybersecurity Advisory Committee issued a Draft Report to the
Director, which broadened “infrastructure” to include “the spread of false and misleading
information because it poses a significant risk to critical function, like elections, public health,financial services and emergency responses.”525

520[Doc. No. 209-1 at 323–25][Doc. No. 209-1 at 335–36]
522[Doc. No. 209-18 at 1–2]
523
[Id.]
524
[Doc. No. 209-1 at 341]
525
[Doc. No. 209-25 at 1]
521

77

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 78 of 155 PageID #:
26869

(29)

In September 2022, the CIS was working on a “portal” for government officials toreport election-related misinformation to social-media platforms.526 That work continues today.527
F. State Department Defendants528
1. The GEC(1)Daniel Kimmage is the Principal Deputy Coordinator of the State Department’s

Global Engagement Center (“GEC”).529 The GEC’s front office and senior leadership meets withsocial-media platforms every few months, sometimes quarterly.530 The meetings focus on the“tools and techniques” of stopping the spread of disinformation on social media, but they rarely
discuss specific content that is posted.531 Additionally, GEC has a “Technology Engagement
Team” (“TET”) that also meets with social-media companies. The TET meets more frequently
than the GEC.532(2)

Kimmage recalls two meetings with Twitter. At these meetings, the GEC would

bring between five and ten people including Kimmage, one or more deputy coordinators, and teamchiefs from the GEC and working-level staff with relevant subject-matter expertise.533 The GEC
staff would meet with Twitter’s content-mediation teams, and the GEC would provide an overview
of what it was seeing in terms of foreign propaganda and information. Twitter would then discuss
similar topics.534

526[Doc. No. 210-22]
[Id.]
528
The State Department Defendants consist of the United States Department of State, Leah Bray (“Bray”), Daniel
Kimmage (“Kimmage’), and Alex Frisbie (“Frisbie”).
529
Kimmage’s deposition was taken and filed as [Doc. No. 208-1].
530[Doc. No. 208-1 at 29, 32]
531[Id. at 30]
532[Id. at 37]
533[Id. at 130–31]
534[Id. at 133–36]
527

78

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 79 of 155 PageID #:
26870

(3)

The GEC’s senior leadership also had similar meetings with Facebook and Google.

Similar numbers of people were brought to these meetings by GEC, and similar topics werediscussed. Facebook and Google also brought their content-moderator teams.535(4)Samaruddin Stewart (“Stewart”) was the GEC’s Senior Advisor who was apermanent liaison in Silicon Valley for the purpose of meeting with social-media platforms about
disinformation. Stewart set up a series of meetings with LinkedIn to discuss “countering
disinformation” and to explore shared interests and alignment of mutual goals regarding thechallenge.536(5)

The GEC also coordinated with CISA and the EIP. Kimmage testified that the GEC

had a “general engagement” with the EIP.537(6)

On October 17, 2022, at an event at Stanford University, Secretary of State Anthony

Blinken mentioned the GEC and stated that the State Department was “engaging in collaboration
and building partnerships” with institutions like Stanford to combat the spread of propaganda.538
Specifically, he stated, “We have something called the Global Engagement Center that’s working
on this every single day.”539(7)

Like CISA, the GEC works through the CISA-funded EI-ISAC and works closelywith the Stanford Internet Observatory and the Virality Project.

535[Id. at 141–43][Id. at 159–60]
537[Id. at 214–215]. The details surrounding the EIP are described in II 6(5)(6)(7)(8)(9)(10)(15) and (16). Scully Ex.
1 details EIPS work carried out during the 2020 election.
538[Doc. No. 208-17 at 5]
539
[Id.]
536

79

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 80 of 155 PageID #:26871

2. The EIP(8)

The EIP is partially-funded by the United States National Science Foundation

through grants.540 Like its work with CISA, the EIP, according to DiResta, was designed to “getaround unclear legal authorities, including very real First Amendment questions” that would arise
if CISA or other government agencies were to monitor and flag information for censorship onsocial media.541
The EIP’s focus was on understanding misinformation and disinformation in the socialmedia landscape, and it successfully pushed social-media platforms to adopt more restrictive
policies about election-related speech in 2020.542
The government agencies that work with and submit alleged disinformation to the EIP are
CISA, the State Department Global Engagement Center, and the Elections Infrastructure
Information Sharing and Analysis Center.543(9)

The EIP report further states that the EIP used a tiered model based on “tickets”

collected internally and from stakeholders. The tickets also related to domestic speech by
American citizens,544 including accounts belonging to media outlets, social-media influencers, andpolitical figures.545 The EIP further emphasized that it wanted greater access to social-media
platform’s internal data and recommended that the platforms increase their enforcement ofcensorship policies.546

540[Id. at 17][Doc. No. 209-5 at 4]542[Doc. No. 209-5, Exh. 1; Ex. 4 at 7, Audio Tr. 4]543[Doc. No. 209-2 at 30]
544[Id. at 11]
545[Id. at 12]
546[Id. at 14]541

80

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 81 of 155 PageID #:26872

The EIP was formed on July 26, 2020, 100 days before the November 2020 election.547 On
July 9, 2020, the Stanford Internet Observatory presented the EIP concept to CISA. The EIP team
was led by Research Manager DiResta, Director Stamos and the University of Washington’s
Starbird.548(10)EIP’s managers both report misinformation to platforms and communicate withgovernment partners about their misinformation reports.549 EIP team members were divided into
tiers of on-call shifts. Each shift was four hours long and led by one on-call manager. The shifts
ranged from five to twenty people. Normal scheduled shifts ran from 8:00 a.m. to 8:00 p.m.,
ramping up to sixteen to twenty hours a day during the week of the election.550(11)Social-media platforms that participated in the EIP were Facebook, Instagram,

Google/YouTube, Twitter, TikTok, Reddit, Nextdoor, Discord, and Pinterest.551(12)

In the 2020 election cycle, the EIP processed 639 “tickets,” 72% of which wererelated to delegitimizing the election results.552 Overall, social-media platforms took action on
35% of the URLs reported to them.553 One “ticket” could include an entire idea or narrative andwas not always just one post.554 Less than 1% of the tickets related to “foreign interference.”555(13)

The EIP found that the Gateway Pundit was one of the top misinformation websites,

allegedly involving the “exaggeration” of the input of an issue in the election process. The EIP did

547[Id. at 20]
[Id.]
549
[Id. at 27–28]
550[Id. at 28]
551[Id. at 35]
552[Id. at 45]
553[Id. at 58]
554[Id. at 27]
555[Id. at 53]
548

81

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 82 of 155 PageID #:26873

not say that the information was false.556 The EIP Report cites The Gateway Pundit forty-seventimes.557(14)

The GEC was engaging with the EIP and submitted “tickets.”558(15)

The tickets and URLs encompassed millions of social-media posts, with almost

twenty-two million posts on Twitter alone.559 The EIP sometimes treats as “misinformation”
truthful reports that the EIP believes “lack broader context.”560(16)

The EIP stated “influential accounts on the political right…were responsible for themost widely spread of false or misleading information in our data set.” 561 Further, the EIP stated
the twenty-one most prominent report spreaders on Twitter include political figures andorganizations, partisan media outlets, and social-media stars. Specifically, the EIP stated, “All 21of the repeat spreaders were associated with conservative or right-wing political views and supportof President Trump.”562 The Gateway Pundit was listed as the second-ranked “Repeat Spreader ofElection Misinformation” on Twitter. During the 2020 election cycle, the EIP flagged The
Gateway Pundit in twenty-five incidents with over 200,000 retweets.563 The Gateway Pundit
ranked above Donald Trump, Eric Trump, Breitbart News, and Sean Hannity.564
The Gateway Pundit’s website was listed as the domain cited in the most “incidents”; its
website content was tweeted by others in 29,209 original tweets and 840,740 retweets. 565 The
Gateway Pundit ranked above Fox News, the New York Post, the New York Times, and the556[Id. at 51][Id. at 51, 74, 76, 101, 103, 110, 112, 145, 150–51, 153, 155–56, 172, 175, 183, 194–95, 206–09, 211–12, 214–16,
and 226]
558[Id. at 60]
559[Id. at 201]
560
[Id. at 202]
561
[Id. at 204–05]
562[Id. at 204–05]
563
[Id.]
564
[Id. at 246]
565
[Id. at 207]
557

82

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 83 of 155 PageID #:26874

Washington Post.566 The EIP report also notes that Twitter suspended The Gateway Pundit’s
account on February 6, 2021, and it was later de-platformed entirely.567(17)

The EIP notes that “during the 2020 election, all of the major platforms madesignificant changes to election integrity policies—policies that attempted to slow the spread of
specific narratives and tactics that could ‘potentially mislead or deceive the public.’” 568 The EIP
was not targeting foreign disinformation, but rather “domestic speakers.”569 The EIP also indicatedit would continue its work in future elections.570(18)

The EIP also called for expansive censorship of social-media speech into otherareas such as “public health.”571(19)

The EIP stated that it “united government, academic, civil society, and industry,

analyzing across platforms to address misinformation in real time.”572(20)

When asked whether the targeted information was domestic, Stamos answered, “Itis all domestic, and the second point on the domestic, a huge part of the problem is well-known
influences… you… have a relatively small number of people with very large followings who havethe ability to go and find a narrative somewhere, pick it out of obscurity and … harden it into thesenarratives.”573
Stamos further stated:
We have set up this thing called the Election Integrity Partnership,
so we went and hired a bunch of students. We’re working with the
University of Washington, Graphika, and DFR Lab and the vast,
vast majority we see we believe is domestic. And so, I think a muchbigger issue for the platforms is elite disinformation. The staff that
566

[Id.]
[Id. at 224]
568
[Id. at 229]
569
[Id. at 243–44]
570[Id. at 243–44]
571[Id. at 251]
572
[Id. at 259]
573
[Doc. No. 276-1 at 12]567

83

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 84 of 155 PageID #:26875

is being driven by people who are verified that are Americans who
are using their real identities.574(21)

Starbird of the University of Washington, who is on a CISA subcommittee and an

EIP participant, also verified the EIP was targeting domestic speakers, stating:
Now fast forward to 2020, we saw a very different story arounddisinformation in the U.S. election. It was largely domestic comingfrom inside the United States… Most of the accounts perpetrating
this…. they’re authentic accounts. They were often blue check andverified accounts. They were pundits on cable television shows thatwere who they said they were … a lot of major spreaders were blue
check accounts, and it wasn’t entirely coordinated, but instead, it
was largely sort of cultivated and even organic in places witheveryday people creating and spreading disinformation about theelection.575
3. The Virality Project(22)

The Virality Project targeted domestic speakers’ alleged disinformation relating to

the COVID-19 vaccines.576 The Virality Project’s final report, dated April 26, 2022, lists DiResta
as principal Executive Director and lists Starbird and Masterson as contributors.577
According to the Virality Project, “vaccine mis-and disinformation was largely driven bya cast of recuring [sic] actors including long-standing anti-vaccine influencers and activists,wellness and lifestyle influence, pseudo medical influencers, conspiracy theory influencers, rightleaning political influencers, and medical freedom influencers.”578
The Virality Project admits the speech it targets is primarily domestic, stating “Foreign …
actor’s reach appeared to be far less than that of domestic actors.”579 The Virality Project also calls
for more aggressive censorship of COVID-19 misinformation, calls for more federal agencies to

574

[Id.]
[Doc. No. 276-1 at 42]
576[Doc. No. 209-3]; Memes, Magnets, Microchips, Narrative Dynamics Around COVID-19 Vaccines.
577[Doc. No. 209-3 at 4]
578[Id. at 9]
579
[Id.]
575

84

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 85 of 155 PageID #:26876

be involved through “cross-agency collaboration,”580 and calls for a “whole-of-society
response.”581 Just like the EIP, the Virality Project states that it is “multistakeholder collaboration”
that includes “government entities” among its key stakeholders.582 The Virality Project targets
tactics that are not necessarily false, including hard-to-verify content, alleged authorization
sources, organized outrage, and sensationalized/misleading headlines.583(23)

Plaintiff Hines of the Health Freedom Louisiana was flagged by the Virality Project

to be a “medical freedom influencer” who engages in the “tactic” of “organized outrage” because
she created events or in-person gatherings to oppose mask and vaccine mandates in Louisiana.584(24) The Virality Project also acknowledges that government “stakeholders,” such as“federal health agencies” and “state and local public health officials,” were among those that“provided tips” and “requests to access specific incidents and narratives.”585(25)

The Virality Project also targeted the alleged COVID-19 misinformation forcensorship before it could go viral. “Tickets also enabled analysts to qualify tag platform or healthsector partners to ensure their situational awareness of high-engagement material that appeared to
be going viral, so that those partners could determine whether something might merit a rapid public
or on-platform response.”586(26)

The Virality Project flagged the following persons and/or organizations as

spreaders of misinformation:i.
ii.

Jill Hines and Health Freedom of Louisiana;587
One America News;588

580[Id. at 12]
[Id.]
582
[Id. at 17]
583[Id. at 19]584[Id. at 9, 19]585[Id. at 24]
586[Id. at 37]
587[Id. at 59]
588[Id. at 60]
581

85

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 86 of 155 PageID #:
26877

iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.

Breitbart News;589
Alex Berenson;590
Tucker Carlson;591
Fox News;592
Candace Owens;593
The Daily Wire;594
Robert F. Kennedy, Jr.;595
Dr. Simone Gold and America’s Frontline Doctors; and596
Dr. Joyce Mercula.597(27)

The Virality Project recommends that the federal government implement a

Misinformation and Disinformation Center of Excellence, housed within the federal government,
which would centralize expertise on mis/disinformation within the federal government at CISA.598
III.

LAW AND ANALYSIS

A. Preliminary Injunction Standard
An injunction is an extraordinary remedy never awarded of right. Benisek v. Lamone, 138
U.S. 1942, 1943 (2018). In each case, the courts must balance the competing claims of injury andmust consider the effect on each party of the granting or withholding of the requested relief. Winterv. Nat. Res. Def. Council, Inc., 555 U. S. 7, 24, 129 S. Ct. 365 (2008).
The standard for an injunction requires a movant to show: (1) the substantial likelihood of
success on the merits; (2) that he is likely to suffer irreparable harm in the absence of an injunction;(3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest.
Benisek, 138 U.S. at 1944. The party seeking relief must satisfy a cumulative burden of proving

589

[Id.]
[Id. at 54, 57, 49, 50]
591[Id. at 57]
592[Id. at 91]
593[Id. at 86, 92]
594
[Id.]
595
[Id.]
596
[Id. at 87–88]
597[Id. at 87]
598[Id. at 150]
590

86

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 87 of 155 PageID #:26878

each of the four elements enumerated before an injunction can be granted. Clark v. Prichard, 812
F.2d 991, 993 (5th Cir. 1987). None of the four prerequisites has a quantitative value. State of Tex.
v. Seatrain Int’l, S.A., 518 F.2d 175, 180 (5th Cir. 1975).
B. Analysis
As noted above, Plaintiffs move for a preliminary injunction against Defendants’ alleged
violations of the Free Speech Clause of the First Amendment. Plaintiffs assert that they are likely
to succeed on the merits of their First Amendment claims because Defendants have significantly
encouraged and/or coerced social-media companies into removing protected speech from socialmedia platforms. Plaintiffs also argue that failure to grant a preliminary injunction will result in
irreparable harm because the alleged First Amendment violations are continuing and/or there is a
substantial risk that future harm is likely to occur. Further, Plaintiffs maintain that the equitablefactors and public interest weigh in favor of protecting their First Amendment rights to freedomof speech. Finally, Plaintiffs move for class certification under Federal Rule of Civil Procedure 23.
In response, Defendants maintain that Plaintiffs are unlikely to succeed on the merits for a
myriad of reasons. Defendants also maintain that Plaintiffs lack Article III standing to bring theclaims levied herein, that Plaintiffs have failed to show irreparable harm because the risk of future
injury is low, and that the equitable factors and public interests weigh in favor of allowing
Defendants to continue enjoying permissible government speech.
Each argument will be addressed in turn below.
1. Plaintiffs’ Likelihood of Success on the Merits
For the reasons explained herein, the Plaintiffs are likely to succeed on the merits of theirFirst Amendment claim against the White House Defendants, Surgeon General Defendants, CDC
Defendants, FBI Defendants, NIAID Defendants, CISA Defendants, and State Department

87

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 88 of 155 PageID #:26879

Defendants. In ruling on a motion for Preliminary Injunction, it is not necessary that the applicant
demonstrate an absolute right to relief. It need only establish a probable right. West Virginia
Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4th Cir. 1971). The Court findsthat Plaintiffs here have done so.
a. Plaintiffs’ First Amendment Claims
The Free Speech Clause prohibits only governmental abridgment of speech. It does notprohibit private abridgment of speech. Manhattan Community Access Corporation v. Halleck, 139
S. Ct. 1921, 1928 (2019). The First Amendment, subject only to narrow and well-understood
exceptions, does not countenance governmental control over the content of messages expressedby private individuals. Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 641 (1994). At
the heart of the First Amendment lies the principle that each person should decide for himself or
herself the ideas and beliefs deserving of expression, consideration, and adherence. Id.
Government action, aimed at the suppression of particular views on a subject that discriminates on
the basis of viewpoint, is presumptively unconstitutional. The First Amendment guards against
government action “targeted at specific subject matter,” a form of speech suppression known as“content-based discrimination.” National Rifle Association of America v. Cuomo, 350 F. Supp. 3d94, 112 (N.D. N.Y. 2018). The private party, social-media platforms are not defendants in the
instant suit, so the issue here is not whether the social-media platforms are government actors,599
but whether the government can be held responsible for the private platforms’ decisions.
Viewpoint discrimination is an especially egregious form of content discrimination. The
government must abstain from regulating speech when the specific motivating ideology or theperspective of the speaker is the rationale for the restriction. Rosenberger v. Rectors and Visitors

This is a standard that requires the private action to be “fairly attributable to the state.” Lugar v. Edmondson OilCo., 457 U.S. 922 (1982).
599

88Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 89 of 155 PageID #:26880

of University of Virginia, 515 U.S. 819, 829 (1995). Strict scrutiny is applied to viewpoint
discrimination. Simon & Schuster, Inc. v. Members of the New York State Crime Victim’s Board,
505 U.S. 105 (1991). The government may not grant the use of a forum to people whose views it
finds acceptable, but deny use to those wishing to express less favored or more controversial views.
Police Department of Chicago v. Moseley, 408 U.S. 92, 96 (1972).
If there is a bedrock principal underlying the First Amendment, it is that the government
may not prohibit the expression of an idea simply because society finds the idea itself offensive ordisagreeable. Matal v. Tam, 137 S. Ct. 1744, 1763 (2017); see also R.A.V. v. City of St. Paul, 505
U.S. 377 (1996). The benefit of any doubt must go to protecting rather than stifling speech.
Citizens United v. Federal Election Commission, 130 S. Ct. 876, 891 (2010).
i. Significant Encouragement and Coercion
To determine whether Plaintiffs are substantially likely to succeed on the merits of theirFirst Amendment free speech claim, Plaintiffs must prove that the Federal Defendants either
exercised coercive power or exercised such significant encouragement that the private parties’
choice must be deemed to be that of the government. Additionally, Plaintiffs must prove the speechsuppressed was “protected speech.” The Court, after examining the facts, has determined that someof the Defendants either exercised coercive power or provided significant encouragement, which
resulted in the possible suppression of Plaintiffs’ speech.
The State (i.e., the Government) can be held responsible for a private decision only when
it has exercised coercive power or has provided such “significant encouragement,” either overt orcovert, that the choice must be deemed to be that of the State. Mere approval or acquiescence inthe actions of a private party is not sufficient to hold the state responsible for those actions. Blumv. Yaretsky, 457 U.S. 991, 1004 (1982); Rendell-Baker v. Kohn, 457 U.S. 830, 1004–05 (1982);

89Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 90 of 155 PageID #:26881

National Broadcasting Co. Inc v. Communications Workers of America, Afl-Cio, 860 F.2d 1022
(11th Cir. 1988); Focus on the Family v. Pinellas Suncoast Transit Authority, 344 F.3d 1213 (11thCir. 2003); Brown v. Millard County, 47 Fed. Appx. 882 (10th Cir. 2002).
In evaluating “significant encouragement,” a state may not induce, encourage, or promoteprivate persons to accomplish what it is constitutionally forbidden to accomplish. Norwood v.
Harrison, 413 U.S. at 465. Additionally, when the government has so involved itself in the private
party’s conduct, it cannot claim the conduct occurred as a result of private choice, even if theprivate party would have acted independently. Peterson v. City of Greenville, 373 U.S. at 247–48.
Further, oral, or written statements made by public officials could give rise to a valid First
Amendment claim where the comments of a governmental official can reasonably be interpreted
as intimating that some form of punishment or adverse regulatory action will follow the failure to
accede to the official’s request. National Rifle Association of America, 350 F. Supp. 3d at 114.
Additionally, a public official’s threat to stifle protected speech is actionable under the First
Amendment and can be enjoined, even if the threat turns out to be empty. Backpage.com, LLC v.
Dart, 807 F. 3d at 230–31.
The Defendants argue that the “significant encouragement” test for government action has
been interpreted to require a higher standard since the Supreme Court’s ruling in Blum v. Yaretsky,
457 U.S. 991 (1982). Defendants also argue that Plaintiffs are unable to meet the test to show
Defendants “significantly encouraged” social-media platforms to suppress free speech. Defendants
further maintain Plaintiffs have failed to show “coercion” by Defendants to force social-media
companies suppress protected free speech. Defendants also argue they made no threats but rathersought to “persuade” the social-media companies. Finally, Defendants maintain the private socialmedia companies made independent decisions to suppress certain postings.

90

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 91 of 155 PageID #:26882

In Blum, the Supreme Court held the Government “can be held responsible for a private
decision only when it has exercised coercive power or has provided such significant
encouragement, either overt or covert, that the choice in law must be deemed to be that of thestate.” Blum, 457 U.S. at 1004. Defendants argue that the bar for “significant encouragement” toconvert private conduct into state action is high. Defendants maintain that Blum’s language does
not mean that the Government is responsible for private conduct whenever the Government does
more than adopt a passive position toward it. Skinner v. Ry. Labor Execs. Ass’n., 489 U.S. 602,
615 (1989).
Defendants point out this is a question of degree: whether a private party should be deemedan agent or instrument of the Government necessarily turns on the “degree” of the Government’s
participation in the private party’s activities. 489 U.S. at 614. The dispositive question is “whether
the State has exercised coercive power or has provided such significant encouragement that the
choice must in law be deemed to be that of the State.” VDARE Fund v. City of Colo. Springs, 11
F.4th 1151, 1161 (10th Cir. 2021).
The Supreme Court found there was not enough “significant encouragement” by theGovernment in American Manufacturers Mutual Ins. Co. v. Sullivan, 526 U.S. 40 (1999). Thiscase involved the constitutionality of a Pennsylvania worker’s compensation statute that
authorized, but did not require, insurers to withhold payments for the treatment of work-related
injuries pending a “utilization” review of whether the treatment was reasonable and necessary. The
plaintiffs’ argument was that by amending the statute to grant the utilization review (an option theypreviously did not have), the State purposely encouraged insurers to withhold payments for
disputed medical treatment. The Supreme Court found this type of encouragement was not enoughfor state action.

91

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 92 of 155 PageID #:26883

The United States Court of Appeal for the Fifth Circuit has also addressed the issue ofgovernment coercion or encouragement. For example, in La. Div. Sons of Confederate Veterans v.
City of Natchitoches, 821 F. App’x 317 (5th Cir. 2020), the Sons of Confederate Veterans applied
to march in a city parade that was coordinated by a private business association. The Mayor sent
a letter asking the private business to prohibit the display of the Confederate battle flag. After theplaintiff’s request to march in the parade was denied, the plaintiff filed suit and argued the Mayor’s
letter was “significant encouragement” to warrant state action. The Fifth Circuit found the letter
was not “significant encouragement.”
In determining whether the Government’s words or actions could reasonably be interpreted
as an implied threat, courts examine a number of factors, including: (1) the Defendant’s regulatoryor other decision-making authority over the targeted entities; (2) whether the government actors
actually exercised regulatory authority over the targeted entities; (3) whether the language of thealleged threatening statements could reasonably be perceived as a threat; and (4) whether any of
the targeted entities reacted in a manner evincing the perception of implicit threat. Id. at 114. As
noted above, a public official’s threat to stifle protected speech is actionable under the First
Amendment and can be enjoined, even if the threat turns out to be empty. Backpage.com, LLC v.
Dart, 807 F.3d 229, 230-31 (7th Cir. 2015); Okwedy v. Molinari, 333 F.3d 339, 340-41 (2d. Cir.
2003).
The closest factual case to the present situation is O’Handley v. Weber, 62 F.4th 1145 (9thCir. 2023). In O’Handley, the plaintiff maintained that a California agency was responsible for themoderation of his posted content. The plaintiff pointed to the agency’s mission to prioritize
working closely with social-media companies to be “proactive” about misinformation and theflagging of one of his Twitter posts as “disinformation.” The Ninth Circuit rejected the argument

92

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 93 of 155 PageID #:
26884

that the agency had provided “significant encouragement” to Twitter to suppress speech. In
rejecting this argument, the Ninth Circuit stated the “critical question” in evaluating the“significant encouragement” theory is “whether the government’s encouragement is so significant
that we should attribute the private party’s choice to the State…” Id. at 1158.
Defendants cited many cases in support of their argument that Plaintiffs have not shown
significant coercion or encouragement. See VDARE Found v. City of Colo. Springs, 11 F.4th 1151
(10th Cir. 2021), cert. denied, 142 S. Ct. 1208 (2022) (city’s decision not to provide “support orresources” to plaintiff’s event was not “such significant encouragement” to transform a private
venue’s decision to cancel the event into state action); S.H.A.R.K. v. Metro Park Serving Summit
Cnty., 499 F.3d 553 (6th Cir. 2007) (government officials’ requests were “not the type ofsignificant encouragement” that would render agreeing to those requests to be state action);
Campbell v. PMI Food Equip, Grp., Inc., 509 F.3d 776 (6th Cir. 2007) (no state action where
government entities did nothing more than authorize and approve a contract that provided tax
benefits or incentives conditioned on the company opening a local plant); Gallagher v. Neil Young
Freedom Concert, 49 F.3d 1442 (10th Cir. 1995) (payments under government contracts and thereceipt of government grants and tax benefits are insufficient to establish a symbiotic relationshipbetween the government and a private entity). Ultimately, Defendants contend that Plaintiffs havenot shown that the choice to suppress free speech must in law be deemed to be that of theGovernment. This Court disagrees.
The Plaintiffs are likely to succeed on the merits on their claim that the United States
Government, through the White House and numerous federal agencies, pressured and encouragedsocial-media companies to suppress free speech. Defendants used meetings and communications
with social-media companies to pressure those companies to take down, reduce, and suppress the93Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 94 of 155 PageID #:26885

free speech of American citizens. They flagged posts and provided information on the type of posts
they wanted suppressed. They also followed up with directives to the social-media companies toprovide them with information as to action the company had taken with regard to the flagged post.
This seemingly unrelenting pressure by Defendants had the intended result of suppressing millions
of protected free speech postings by American citizens. In response to Defendants’ arguments, theCourt points out that this case has much more government involvement than any of the cases citedby Defendants, as clearly indicated by the extensive facts detailed above. If there were ever a casewhere the “significant encouragement” theory should apply, this is it.
What is really telling is that virtually all of the free speech suppressed was “conservative”
free speech. Using the 2016 election and the COVID-19 pandemic, the Government apparently
engaged in a massive effort to suppress disfavored conservative speech. The targeting ofconservative speech indicates that Defendants may have engaged in “viewpoint discrimination,”to which strict scrutiny applies. See Simon & Schuster, Inc., 505 U.S. 105 (1991).
In addition to the “significant encouragement” theory, the Government may also be held
responsible for private conduct if the Government exercises coercive power over the private party
in question. Blum, 457 U.S. at 1004. Here, Defendants argue that not only must there be coercion,
but the coercion must be targeted at specific actions that harmed Plaintiffs. Bantam Books v.
Sullivan, 372 U.S. 58 (1963) (where a state agency threatened prosecution if a distributor did notremove certain designated books or magazines it distributed that the state agency had declaredobjectionable); see also Backpage.com, LLC v. Dart, 807 F.3d 229 (7th Cir. 2015) (where asheriff’s letter demanded that two credit card issuers prohibit the use of their credit cards topurchase any ads on a particular website containing advertisements for adult services); Okwedy v.

94

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 95 of 155 PageID #:26886

Molinari, 333 F.3d 339 (2d Cir. 2003) (per curium) (where a municipal official allegedly pressured
a billboard company to take down a particular series of signs he found offensive).
The Defendants further argue they only made requests to the social-media companies, andthat the decision to modify or suppress content was each social-media company’s independent
decision. However, when a state has so involved itself in the private party’s conduct, it cannot
claim the conduct occurred as a result of private choice, even if the private party would have acted
independently. Peterson v. City of Greenville, 373 U.S. 244, 247–248 (1963).
Therefore, the question is not what decision the social-media company would have made,but whether the Government “so involved itself in the private party’s conduct” that the decision isessentially that of the Government. As exhaustedly listed above, Defendants “significantly
encouraged” the social-media companies to such extent that the decision should be deemed to be
the decisions of the Government. The White House Defendants and the Surgeon General
Defendants additionally engaged in coercion of social-media companies to such extent that thedecisions of the social-media companies should be deemed that of the Government. It simply
makes no difference what decision the social-media companies would have made independentlyof government involvement, where the evidence demonstrates the wide-scale involvement seen
here.
(1) White House Defendants
The Plaintiffs allege that by use of emails, public and private messages, public and private
meetings, and other means, White House Defendants have “significantly encouraged” and“coerced” social-media platforms to suppress protected free speech on their platforms.

95

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 96 of 155 PageID #:26887

The White House Defendants acknowledged at oral arguments that they did not dispute theauthenticity or the content of the emails Plaintiffs submitted in support of their claims.600 However,they allege that the emails do not show that the White House Defendants either coerced orsignificantly encouraged social-media platforms to suppress content of social-media postings.
White House Defendants argue instead that they were speaking with social-media companies about
promoting more accurate COVID-19 information and to better understand what action thecompanies were taking to curb the spread of COVID-19 misinformation.
White House Defendants further argue they never demanded the social-media companies
to suppress postings or to change policies, and the changes were due to the social-media
companies’ own independent decisions. They assert that they did not make specific demands via
the White House’s public statements and four “asks”601 of social-media companies.602 Defendants
contend the four “asks” were “recommendations,” not demands. Additionally, Defendants argue
President Biden’s July 16, 2021 “they’re killing people” comment was clarified on July 19, 2021,
to reflect that President Biden was talking about the “Disinformation Dozen,” not the social-media
companies.
Although admitting White House employee Flaherty expressed frustration at times withsocial-media companies, White House Defendants contend Flaherty sought to better understandthe companies’ policies with respect to addressing the spread of misinformation and hoped to findout what the Government could do to help. Defendants contend Flaherty felt such frustration

600[Doc. No. 288 at 164–65]
The White House four “asks” are: (1) measure and publicly share the impact of misinformation on their platform;(2) create a robust enforcement strategy; (3) take faster action against harmful posts; and (4) promote quality
information sources in their feed algorithm.
602[Doc. No. 10-1 at 377–78]
601

96

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 97 of 155 PageID #:26888

because some of the things the social-media-companies told him were inconsistent with what
others told him, compounded with the urgency of the COVID-19 pandemic.
Explicit threats are an obvious form of coercion, but not all coercion need be explicit. The
following illustrative specific actions by Defendants are examples of coercion exercised by theWhite House Defendants:(a)“Cannot stress the degree to which this needs to be resolved immediately. Please
remove this account immediately.”603(b)Accused Facebook of causing “political violence” by failing to censor false
COVID-19 claims.604(c)“You are hiding the ball.”605(d)“Internally we have been considering our options on what to do about it.”606(e)“I care mostly about what actions and changes you are making to ensure you’re notmaking our country’s vaccine hesitancy problem worse.”607(f)“This is exactly why I want to know what “Reduction” actually looks like – if
“reduction” means pumping our most vaccine hesitance audience with Tucker
Carlson saying it does not work… then… I’m not sure it’s reduction.”608(g)Questioning how the Tucker Carlson video had been “demoted” since there were
40,000 shares.609(h)Wanting to know why Alex Berenson had not been kicked off Twitter because
Berenson was the epicenter of disinformation that radiated outward to thepersuadable public.610 “We want to make sure YouTube has a handle on vaccine
hesitancy and is working toward making the problem better. Noted that vaccine
hesitancy was a concern. That is shared by the highest (‘and I mean the highest’)levels of the White House.”’611

603[II. A.][Id. A. (5)]605
[Id. A. (10)]
606
[Id.]
607
[Id. A. (11)]608[Id. A. (12)]609[Id. A. (15)]610[Id. A. (16)]611[Id. A. (17)]60497Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 98 of 155 PageID #:
26889

(i)

After sending to Facebook a document entitled “Facebook COVID-19 Vaccine
Misinformation Brief, which recommends much more aggressive censorship byFacebook. Flaherty told Facebook sending the Brief was not a White House
endorsement of it, but “this is circulating around the building and informing
thinking.”612(j)Flaherty stated: “Not to sound like a broken record, but how much content is being
demoted, and how effective are you at mitigating reach and how quickly?”613(k)Flaherty told Facebook: “Are you guys fucking serious” I want an answer on what
happened here and I want it today.”614(l)Surgeon General Murthy stated: “We expect more from our technology companies.
We’re asking them to operate with greater transparency and accountability. We’reasking them to monitor information more closely. We’re asking them toconsistently take action against misinformation super-spreaders on theirplatforms.”615(m)

White House Press Secretary Psaki stated: “we are in regular touch with thesesocial-media platforms, and those engagements typically happen through membersof our senior staff, but also members of our COVID-19 team. We’re flagging
problematic posts for Facebook that spread disinformation. Psaki also stated oneof the White House’s “asks” of social-media companies was to “create a robust
enforcement strategy.”616(n)When asked about what his message was to social-media platforms when it came
to COVID-19, President Biden stated: “they’re killing people. Look, the only
pandemic we have is among the unvaccinated and that – they’re killing people.”617(o)Psaki stated at the February 1, 2022, White House Press Conference that the WhiteHouse wanted every social-media platform to do more to call out misinformationand disinformation and to uplift accurate information.618(p)“Hey folks, wanted to flag the below tweet and am wondering if we can get movingon the process of having it removed. ASAP”619(q)“How many times can someone show false COVID-19 claims before being
removed?”

612

[Id.]
[Id at A. (19)]
614
[Id.]
615
[Id.]
616
[Id.]
617
[Id.]
618
[Id. at A. (24)]619[Doc. No. 174-1 at 1]
613

98

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 99 of 155 PageID #:
26890

(r)

“I’ve been asking you guys pretty directly over a series of conversations if thebiggest issues you are seeing on your platform when it comes to vaccine hesitancy
and the degree to which borderline content- as you define it, is playing a role.”620(s)“I am not trying to play ‘gotcha’ with you. We are gravely concerned that yourservice is one of the top drivers of vaccine hesitancy-period.”621(t)“You only did this, however after an election that you helped increase skepticism
in and an insurrection which was plotted, in large part, on your platform.”622(u)“Seems like your ‘dedicated vaccine hesitancy’ policy isn’t stopping the disinfo
dozen.” 623(v)

White House Communications Director, Kate Bedingfield’s announcement that“the White House is assessing whether social-media platforms are legally liable formisinformation spread on their platforms, and examining how misinformation fits
into the liability protection process by Section 230 of The Communication Decency
Act.”624

These actions are just a few examples of the unrelenting pressure the Defendants exerted
against social-media companies. This Court finds the above examples demonstrate that Plaintiffs
can likely prove that White House Defendants engaged in coercion to induce social-media
companies to suppress free speech.
With respect to 47 U.S.C. § 230, Defendants argue that there can be no coercion forthreatening to revoke and/or amend Section 230 because the call to amend it has been bipartisan.
However, Defendants combined their threats to amend Section 230 with the power to do so byholding a majority in both the House of Representatives and the Senate, and in holding thePresidency. They also combined their threats to amend Section 230 with emails, meetings, press
conferences, and intense pressure by the White House, as well as the Surgeon General Defendants.
Regardless, the fact that the threats to amend Section 230 were bipartisan makes it even more

620

[Id. at 11]
[Id.]
622
[Doc. No. 174-1 at 17–20]
623[Id. at 41]624[Doc. No. 10-1 at 477–78]
621

99

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 100 of 155 PageID #:26891

likely that Defendants had the power to amend Section 230. All that is required is that the
government’s words or actions “could reasonably be interpreted as an implied threat.” Cuomo, 350
F. Supp. 3d at 114. With the Supreme Court recently making clear that Section 230 shields socialmedia platforms from legal responsibility for what their users post, Gonzalez v. Google, 143 S. Ct.
1191 (2023), Section 230 is even more valuable to these social-media platforms. These actions
could reasonably be interpreted as an implied threat by the Defendants, amounting to coercion.
Specifically, the White House Defendants also allegedly exercised significant
encouragement such that the actions of the social-media companies should be deemed to be thatof the government. The White House Defendants used emails, private portals, meetings, and othermeans to involve itself as “partners” with social-media platforms. Many emails between the WhiteHouse and social-media companies referred to themselves as “partners.” Twitter even sent theWhite House a “Partner Support Portal” for expedited review of the White House’s requests. Boththe White House and the social-media companies referred to themselves as “partners” and “on thesame 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 that they
were “partners” by suppressing information that did not even violate the social-media companies’
own policies.
Further, White House Defendants constantly “flagged” for Facebook and other socialmedia platforms posts the White House Defendants considered misinformation. The White House
demanded updates and reports of the results of their efforts to suppress alleged disinformation, andthe social-media companies complied with these demands. The White House scheduled numerous
Zoom and in-person meetings with social-media officials to keep each other informed about thecompanies’ efforts to suppress disinformation.

100

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 101 of 155 PageID #:26892

The White House Defendants made it very clear to social-media companies what theywanted suppressed and what they wanted amplified. Faced with unrelenting pressure from the mostpowerful office in the world, the social-media companies apparently complied. The Court findsthat this amounts to coercion or encouragement sufficient to attribute the White House’s actions
to the social-media companies, such that Plaintiffs are likely to succeed on the merits against theWhite House Defendants.
(2) Surgeon General Defendants
Plaintiffs allege that Surgeon General Murthy and his office engaged in a pressure
campaign parallel to, and often overlapping with, the White House Defendants’ campaign directedat social-media platforms. Plaintiffs further allege the Surgeon General Defendants engaged innumerous meetings and communications with social-media companies to have those companies
suppress alleged disinformation and misinformation posted on their platforms.
The Surgeon General Defendants argue that the Surgeon General’s role is primarily to draw
attention to public health matters affecting the nation. The SG took two official actions in 2021
and in 2022. In July 2021, the Surgeon General issued a “Surgeon General’s Advisory.” In March
2022, the Surgeon General issued a Request For Information (“RFI”). Surgeon General Defendants
argue that the Surgeon General’s Advisory did not require social-media companies to censor
information or make changes in their policies. Surgeon General Defendants further assert that the
RFI was voluntary and did not require the social-media companies to answer.
Additionally, the Surgeon General Defendants contend they only held courtesy meetings
with social-media companies, did not flag posts for censorship, and never worked with socialmedia companies to moderate their policies. Surgeon General Defendants also deny that they wereinvolved with the Virality Project.

101

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 102 of 155 PageID #:26893

As with the White House Defendants, this Court finds that Plaintiffs are likely to succeedon the merits of their First Amendment free speech claim against the Surgeon General Defendants.
Through public statements, internal emails, and meetings, the Surgeon General Defendants
exercised coercion and significant encouragement such that the decisions of the social-media
platforms and their actions suppressing health disinformation should be deemed to be the decisionsof the government. Importantly, the suppression of this information was also likely prohibited
content and/or viewpoint discrimination, entitling Plaintiffs to strict scrutiny.
The Surgeon General Defendants did pre-rollout calls with numerous social-media
companies prior to publication of the Health Advisory on Misinformation. The Advisory publicly
called on social-media companies “to do more” against COVID misinformation Superspreaders.
Numerous calls and meetings took place between Surgeon General Defendants and private socialmedia companies. The “misinformation” to be suppressed was whatever the government deemedmisinformation.
The problem with labeling certain discussions about COVID-19 treatment as “healthmisinformation” was that the Surgeon General Defendants suppressed alternative views to thosepromoted by the government. One of the purposes of free speech is to allow discussion about
various topics so the public may make informed decisions. Health information was suppressed,
and the government’s view of the proper treatment for COVID-19 became labeled as “the truth.”
Differing views about whether COVID-19 vaccines worked, whether taking the COVID-19
vaccine was safe, whether mask mandates were necessary, whether schools and businesses shouldhave been closed, whether vaccine mandates were necessary, and a host of other topics were
suppressed. Without a free debate about these issues, each person is unable to decide for himself
or herself the proper decision regarding their health. Each United States citizen has the right to102

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 103 of 155 PageID #:26894

decide for himself or herself what is true and what is false. The Government and/or the OSG does
not have the right to determine the truth.
The Surgeon General Defendants also engaged in a pressure campaign with the WhiteHouse Defendants to pressure social-media companies to suppress health information contrary to
the Surgeon General Defendants’ views. After the Surgeon General’s press conference on July 15,
2021, the Surgeon General Defendants kept the pressure on social-media platforms via emails,
private meetings, and by requiring social-media platforms to report on actions taken against healthdisinformation.
The RFI by the Surgeon General Defendants also put additional pressure on social-media
companies to comply with the requests to suppress free speech. The RFI sought information fromprivate social-media companies to provide information about the spread of misinformation. The
RFI stated that the office of the Surgeon General was expanding attempts to control the spread of
misinformation on social-media platforms. The RFI also sought information about social-media
censorship policies, how they were enforced, and information about disfavored speakers.
Taking all of this evidence together, this Court finds the Surgeon General Defendants likely
engaged in both coercion and significant encouragement to such an extent that the decisions ofprivate social-media companies should be deemed that of the Surgeon General Defendants. The
Surgeon General Defendants did much more than engage in Government speech: they keptpressure on social-media companies with pre-rollout meetings, follow-up meetings, and RFI. Thus,
Plaintiffs are likely to succeed on the merits of their First Amendment claim against these
Defendants.

103

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 104 of 155 PageID #:26895(3) CDC Defendants
Plaintiffs allege that the CDC Defendants have engaged in a censorship campaign, together
with the White House and other federal agencies, to have free speech suppressed on social-media
platforms. Plaintiffs allege that working closely with the Census Bureau, the CDC flagged
supposed “misinformation” for censorship on the platforms. Plaintiffs further allege that by using
the acronym “BOLO,” the CDC Defendants told social-media platforms what health claims shouldbe censored as misinformation.
In opposition, Defendants assert that the CDC’s mission is to protect the public’s health.
Although the CDC Defendants admit to meeting with and sending emails to social-media
companies, the CDC Defendants argue they were responding to requests by the companies forscience-based public health information, proactively alerting the social-media companies about
disinformation, or advising the companies where to find accurate information. The Census Bureau
argues the Interagency Agreement, entered into with the CDC in regard to COVID-19
misinformation, has expired, and that it is no longer participating with the CDC on COVID-19
misinformation issues. The CDC Defendants further deny that they directed any social-media
companies to remove posts or to change their policies.
Like the White House Defendants and Surgeon General Defendants, the Plaintiffs are likely
to succeed on the merits of Plaintiffs’ First Amendment free speech claim against the CDC
Defendants.

The CDC Defendants through emails, meetings, and other communications,seemingly exercised pressure and gave significant encouragement such that the decisions of thesocial-media platforms to suppress information should be deemed to be the decisions of theGovernment. The CDC Defendants coordinated meetings with social-media companies, provided
examples of alleged disinformation to be suppressed, questioned the social-media companies about

104

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 105 of 155 PageID #:26896

how it was censoring misinformation, required reports from social-media companies about
disinformation, told the social-media companies whether content was true or false, provided
BOLO information, and used a Partner Support Portal to report disinformation. Much like the other
Defendants, described above, the CDC Defendants became “partners” with social-media
platforms, flagging and reporting statements on social media Defendants deemed false. Although
the CDC Defendants did not exercise coercion to the same extent as the White House and Surgeon
General Defendants, their actions still likely resulted in “significant encouragement” by thegovernment to suppress free speech about COVID-19 vaccines and other related issues.
Various social-media platforms changed their content-moderation policies to require
suppression of content that was deemed false by CDC and led to vaccine hesitancy. The CDC
became the “determiner of truth” for social-media platforms, deciding whether COVID-19
statements made on social media were true or false. And the CDC was aware it had become the“determiner of truth” for social-media platforms. If the CDC said a statement on social media wasfalse, it was suppressed, in spite of alternative views. By telling social-media companies thatposted content was false, the CDC Defendants knew the social-media company was going tosuppress the posted content. The CDC Defendants thus likely “significantly encouraged” socialmedia companies to suppress free speech.
Based on the foregoing examples of significant encouragement and coercion by the CDC
Defendants, the Court finds that Plaintiffs are likely to succeed on the merits of their First
Amendment claim against the CDC Defendants.
(4) NIAID Defendants
Plaintiffs allege that NIAID Defendants engaged in a series of campaigns to discredit andprocure the censorship of disfavored viewpoints on social media. Plaintiffs allege that Dr. Fauci

105

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 106 of 155 PageID #:26897

engaged in a series of campaigns to suppress speech regarding the Lab-Leak theory of COVID19’s origin, treatment using hydroxychloroquine, the GBD, the treatment of COVID-19 with
Ivermectin, the effectiveness of mask mandates, and the speech of Alex Berenson.
In opposition, Defendants assert that the NIAID Defendants simply supports research tobetter understand, treat, and prevent infectious, immunologic, and allergic diseases and is
responsible for responding to emergency public health threats. The NIAID Defendants argue thatthey had limited involvement with social-media platforms and did not meet with or contact theplatforms to change their content or policies. The NIAID Defendants further argue that the videos,press conferences, and public statements by Dr. Fauci and other employees of NIAID wasgovernment speech.
This Court agrees that much of what the NIAID Defendants did was government speech.
However, various emails show Plaintiffs are likely to succeed on the merits through evidence thatthe motivation of the NIAID Defendants was a “take down” of protected free speech. Dr. Francis
Collins, in an email to Dr. Fauci625 told Fauci there needed to be a “quick and devastating takedown” of the GBD—the result was exactly that. Other email discussions show the motivations of
the NIAID were to have social-media companies suppress these alternative medical theories.
Taken together, the evidence shows that Plaintiffs are likely to succeed on the merits against the
NIAID Defendants as well.
(5) FBI Defendants
Plaintiffs allege that the FBI Defendants also suppressed free speech on social-media
platforms, with the FBI and FBI’s FITF playing a key role in these censorship efforts.

625[Doc. No. 207-6]

106

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 107 of 155 PageID #:26898

In opposition, Defendants assert that the FBI Defendants’ specific job duties relate toforeign influence operations, including attempts by foreign governments to influence U.S.
elections. Based on the alleged foreign interference in the 2016 U.S. Presidential election, the FBI
Defendants argue that, through their meetings and emails with social-media companies, they wereattempting to prevent foreign influence in the 2020 Presidential election. The FBI Defendants deny
any attempt to suppress and/or change the social-media companies’ policies with regard todomestic speech. They further deny that they mentioned Hunter Biden or a “hack and leak” foreign
operation involving Hunter Biden.
According to the Plaintiffs’ allegations detailed above, the FBI had a 50% success rate
regarding social media’s suppression of alleged misinformation, and it did no investigation todetermine whether the alleged disinformation was foreign or by U.S. citizens. The FBI’s failure toalert social-media companies that the Hunter Biden laptop story was real, and not mere Russian
disinformation, is particularly troubling. The FBI had the laptop in their possession since
December 2019 and had warned social-media companies to look out for a “hack and dump”
operation by the Russians prior to the 2020 election. Even after Facebook specifically asked
whether the Hunter Biden laptop story was Russian disinformation, Dehmlow of the FBI refused
to comment, resulting in the social-media companies’ suppression of the story. As a result, millions
of U.S. citizens did not hear the story prior to the November 3, 2020 election. Additionally, theFBI was included in Industry meetings and bilateral meetings, received and forwarded alleged
misinformation to social-media companies, and actually mislead social-media companies in regard
to the Hunter Biden laptop story. The Court finds this evidence demonstrative of significant
encouragement by the FBI Defendants.

107

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 108 of 155 PageID #:26899

Defendants also argue that Plaintiffs are attempting to create a “deception” theory of
government involvement with regards to the FBI Defendants. Plaintiffs allege the FBI told thesocial-media companies to watch out for Russian disinformation prior to the 2020 Presidential
election and then failed to tell the companies that the Hunter Biden laptop was not Russian
disinformation. The Plaintiffs further allege Dr. Fauci colluded with others to cover up theGovernment’s involvement in “gain of function” research at the Wuhan lab in China, which may
have resulted in the creation of the COVID-19 pandemic.
Although this Court agrees there is no specified “deception” test for government action, astate may not induce private persons to accomplish what it is constitutionally forbidden toaccomplish. Norwood, 413 U.S. at 455. It follows, then, that the government may not deceive a
private party either—it is just another form of coercion. The Court has evaluated Defendants’conduct under the “coercion” and/or “significant encouragement” theories of government action,and finds that the FBI Defendants likely exercised “significant encouragement” over social-media
companies.
Through meetings, emails, and in-person contacts, the FBI intrinsically involved itself inrequesting social-media companies to take action regarding content the FBI considered to be
misinformation. The FBI additionally likely misled social-media companies into believing the
Hunter Biden laptop story was Russian disinformation, which resulted in suppression of the story
a few weeks prior to the 2020 Presidential election. Thus, Plaintiffs are likely to succeed in theirclaims that the FBI exercised “significant encouragement” over social-media platforms such thatthe choices of the companies must be deemed to be that of the Government.

108

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 109 of 155 PageID #:26900(5) CISA Defendants
Plaintiffs allege the CISA Defendants served as a “nerve center” for federal censorshipefforts by meeting routinely with social-media platforms to increase censorship of speech
disfavored by federal officials, and by acting as a “switchboard” to route disinformation concerns
to social-media platforms.
In response, the CISA Defendants maintain that CISA has a mandate to coordinate withfederal and non-federal entities to carry out cybersecurity and critical infrastructure activities.
CISA previously designated election infrastructure as a critical infrastructure subsector. CISA alsocollaborates with state and local election officials; as part of its duties, CISA coordinates with the
EIS-GCC, which is comprised of state, local, and federal governmental departments and agencies.
The EI-SSC is comprised of owners or operators with significant business or operations in U.S.
election infrastructure systems or services. After the 2020 election, the EI-SCC and EIS-GCC
launched a Joint Managing Mis/Disinformation Group to coordinate election infrastructure
security efforts. The CISA Defendants argue CISA supports the Joint Managing MisDisinformation Group but does not coordinate with the EIP or the CIS. Despite DHS providing
financial assistance to the CIS through a series of cooperative agreement awards managed by
CISA, the CISA Defendants assert that the work scope funded by DHS has not involved the CIS
performing disinformation-related tasks.
Although the CISA Defendants admit to being involved in “switchboarding” work during
the 2020 election cycle, CISA maintains it simply referred the alleged disinformation to the socialmedia companies, who made their own decisions to suppress content. CISA maintains it included
a notice with each referral to the companies, which stated that CISA was not demanding
censorship. CISA further maintains it discontinued its switchboarding work after the 2020 election

109

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 110 of 155 PageID #:26901

cycle and has no intention to engage in switchboarding for the next election.626 CISA further argues
that even though it was involved with USG-Industry meetings with other federal agencies andsocial-media companies, they did not attempt to “push” social-media companies to suppress
content or to change policies.
The Court finds that Plaintiffs are likely to succeed on the merits of their First Amendment
claim against the CISA Defendants. The CISA Defendants have likely exercised “significant
encouragement” with social-media platforms such that the choices of the social-media companies
must be deemed to be that of the government. Like many of the other Defendants, the evidenceshows that the CISA Defendants met with social-media companies to both inform and pressure
them to censor content protected by the First Amendment. They also apparently encouraged andpressured social-media companies to change their content-moderation policies and flag disfavoredcontent.
But the CISA Defendants went even further. CISA expanded the word “infrastructure” inits terminology to include “cognitive” infrastructure, so as to create authority to monitor andsuppress protected free speech posted on social media. The word “cognitive” is an adjective thatmeans “relating to cognition.” “Cognition” means the mental action or process of acquiringknowledge and understanding through thought, experiences, and the senses.627 The Plaintiffs arelikely to succeed on the merits on its claim that the CISA Defendants believe they had a mandate
to control the process of acquiring knowledge. The CISA Defendants engaged with Stanford
University and the University of Washington to form the EIP, whose purpose was to allow stateand local officials to report alleged election misinformation so it could be forwarded to the social-

626

However, at oral argument, CISA attorneys were unable to verify whether or not CISA would be involved inswitchboarding during the 2024 election. [Doc. No. 288 at 122]
627
Google English Dictionary110Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 111 of 155 PageID #:26902

media platforms to review. CISA used a CISA-funded non-profit organization, the CIS, to performthe same actions. CISA used interns who worked for the Stanford Internal Observatory, which ispart of the EIP, to address alleged election disinformation. All of these worked together to forward
alleged election misinformation to social-media companies to view for censorship. They also
worked together to ensure the social-media platforms reported back to them on what actions theplatforms had taken. And in this process, no investigation was made to determine whether the
censored information was foreign or produced by U.S. citizens.
According to DiResta, head of EIP, the EIP was designed “to get around unclear legal
authorities, including very real First Amendment questions that would arise if CISA or the othergovernment agencies were to monitor and flag information for censorship on social media.”628
Therefore, the CISA Defendants aligned themselves with and partnered with an organization thatwas designed to avoid Government involvement with free speech in monitoring and flagging
content for censorship on social-media platforms.
At oral arguments on May 26, 2023, Defendants argued that the EIP operated
independently of any government agency. 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 CISAfunded non-profit that channeled reports of misinformation from state and local government
officials to social-media companies; CISA had meetings with Stanford Internet Observatory
officials (a part of the EIP), and both agreed to “work together”; the EIP gave briefings to CISA;
and the CIS (which CISA funds) oversaw the Multi-State Information Sharing and Analysis
Center (“MS-ISAC”) and the Election Infrastructure Information Sharing and Analysis Center

628[Doc. No. 209-5 at 4]111

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 112 of 155 PageID #:26903(“EI-ISAC”), both of which are organizations of state and local governments that report alleged
election misinformation.
CISA directs state and local officials to CIS and connected the CIS with the EIP because
they were working on the same mission and wanted to be sure they were all connected. CISA
served as a mediating role between CIS and EIP to coordinate their efforts in reporting
misinformation to social-media platforms, and there were direct email communications about
reporting misinformation between EIP and CISA. Stamos and DiResta of the EIP also have roles
in CISA on CISA advisory committees. EIP identifies CISA as a “partner in government.” The
CIS coordinated with EIP regarding online misinformation. The EIP publication, “The Long
Fuse,”629 states the EIP has a focus on election misinformation originating from “domestic”
sources across the United States.630 EIP further stated that the primary repeat spreaders of false
and misleading narratives were “verified blue-checked accounts belonging to partisan media
outlets, social-media influencers, and political figures, including President Trump and his
family.”631 The EIP further disclosed it held its first meeting with CISA to present the EIP concept
on July 9, 2020, and EIP was officially formed on July 26, 2020, “in consultation with CISA.”632
The Government was listed as one of EIP’s Four Major Stakeholder Groups, which included CISA,
the GEC, and ISAC.633
As explained, the CISA Defendants set up a “switchboarding” operation, primarily
consisting of college students, to allow immediate reporting to social-media platforms of alleged
election disinformation. The “partners” were so successful with suppressing election

629[Doc. No. 209-2][Id. at 9]
631[Id. at 12]
632[Id. at 20–21]
633[Id. at 30]
630

112

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 113 of 155 PageID #:26904

disinformation, they later formed the Virality Project, to do the same thing with COVID-19
misinformation that the EIP was doing for election disinformation. CISA and the EIP werecompletely intertwined. Several emails from the switchboarding operation sent by intern Pierce
Lowary shows Lowary directly flagging posted content and sending it to social-media companies.
Lowary identified himself as “working for CISA” on the emails.634
On November 21, 2021, CISA Director Easterly stated: “We live in a world where people
talk about alternative facts, post-truth, which I think is really, really dangerous if people get to picktheir own facts.” The Free Speech Clause was enacted to prohibit just what Director Easterly iswanting to do: allow the government to pick what is true and what is false. The Plaintiffs are likely
to succeed on the merits of their First Amendment claim against the CISA Defendants for“significantly encouraging” social-media companies to suppress protected free speech.
(5) State Department Defendants
Plaintiffs allege the State Department Defendants, through the State Department’s GEC,
were also involved in suppressing protected speech on social-media platforms.
In response, the State Department Defendants argue that they, along with the GEC, play a
critical role in coordinating the U.S. government efforts to respond to foreign influence. The State
Department Defendants argue that they did not flag specific content for social-media companies
and did not give the company any directives. The State Department Defendants also argue thatthey do not coordinate with or work with the EIP or the CIS.
The Court finds that Plaintiffs are also likely to succeed on the merits regarding their First
Amendment Free Speech Clause against the State Department Defendants. For many of the same
reasons the Court reached its conclusion as to the CISA Defendants, the State Department

634[Doc. No. 227-2 at 15, 23, 42, 65 & 78]

113

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 114 of 155 PageID #:26905

Defendants have exercised “significant encouragement” with social-media platforms, such that the
choices of the social-media companies should be deemed to be that of the government. As
discussed previously, both CISA and the GEC were intertwined with the VP, EIP, and Stanford
Internet Observatory.
The VP, EIP, and Stanford Internet Observatory are not defendants in this proceeding.
However, their actions are relevant because government agencies have chosen to associate,
collaborate, and partner with these organizations, whose goals are to suppress protected free speechof American citizens. The State Department Defendants and CISA Defendants both partnered withorganizations whose goals were to “get around” First Amendment issues.635 In partnership withthese non-governmental organizations, the State Department Defendants flagged and reported
postings of protected free speech to the social-media companies for suppression. The flagged
content was almost entirely from political figures, political organizations, alleged partisan media
outlets, and social-media all-stars associated with right-wing or conservative political views,
demonstrating likely “viewpoint discrimination.” Since only conservative viewpoints were
allegedly suppressed, this leads naturally to the conclusion that Defendants intended to suppress
only political views they did not believe in. Based on this evidentiary showing, Plaintiffs are likely
to succeed on the merits of their First Amendment claims against the State Department Defendants.
(6) Other Defendants
Other Defendants in this proceeding are the U.S. Food and Drug Administration, U. S.
Department of Treasury, U.S. Election Assistance Commission, U. S. Department of Commerce,
and employees Erica Jefferson, Michael Murray, Wally Adeyemo, Steven Frid, Brad Kimberly,
and Kristen Muthig. Plaintiffs confirmed at oral argument that they are not seeking a preliminary

635[Doc. No. 209-5 at 4]114

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 115 of 155 PageID #:26906

injunction against these Defendants. Additionally, Plaintiffs assert claims against theDisinformation Governance Board (“DGB”) and its Director Nina Jankowicz. Defendants haveprovided evidence that the DGB has been disbanded, so any claims against these Defendants aremoot. Thus, this Court will not address the issuance of an injunction against any of these
Defendants.
ii. Joint Participation
The Plaintiffs contend that the Defendants are not only accountable for private conduct thatthey coerced or significantly encouraged, but also for private conduct in which they actively
participated as “joint participants.” Burton v. Wilmington Parking Authority, 365 U.S. 715, 725(1961). Although most often “joint participation” occurs through a conspiracy or collusive
behavior, Hobbs v. Hawkins, 968 F.2d 471, 480 (5th Cir. 1992), even without a conspiracy, whena plaintiff establishes the government is responsible for private action arising out of “pervasive
entwinement of public institutions and public officials in the private entity’s composition andworkings.” Brentwood Academy. v. Tennessee Secondary Sch. Athletic Ass’n., 531 U. S. 288, 298(2001).
Under the “joint action” test, the Government must have played an indispensable role inthe mechanism leading to the disputed action. Frazier v. Bd. Of Trs. Of N.W. Miss. Reg.’l Med.
Ctr., 765 F.2d 1278, 1287-88 (5th Cir.), amended, 777 F.2d 329 (5th Cir. 1985). When a plaintiff
establishes “the existence of a conspiracy involving state action,” the government becomes
responsible for all constitutional violations committed in furtherance of the conspiracy by a party
to the conspiracy. Armstrong v. Ashley, 60 F.4th 262, (5th Cir. 2023). Conspiracy can be charged
as the legal mechanism through which to impose liability on each and all of the defendants without

115

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 116 of 155 PageID #:26907

regard to the person doing the particular act that deprives the plaintiff of federal rights. Pfannstiel
v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990).
Much like conspiracy and collusion, joint activity occurs whenever the government has “sofar insinuated itself” into private affairs as to blur the line between public and private action.
Jackson v. Metro. Edison Co., 419 U.S. 345, 357 (1974). To become “pervasively entwined” in a
private entity’s workings, the government need only “significantly involve itself in the private
entity’s actions and decision-making”; it is not necessary to establish that “state actors … literally‘overrode’ the private entity’s independent judgment.” Rawson v. Recovery Innovations, Inc., 975
F.3d 742, 751, 753 (9th Cir. 2020). “Pervasive intertwinement” exists even if the private party is
exercising independent judgment. West v. Atkins, 487 U.S. 42, 52, n.10 (1988); Gallagher v. Neil
Young Freedom Concert, 49 F.3d 1442, 1454 (10th Cir. 1995) (holding that a “substantial degreeof cooperative action” can constitute joint action).
For the same reasons as this Court has found Plaintiffs met their burden to show
“significant encouragement” by the White House Defendants, the Surgeon General Defendants,
the CDC Defendants, the FBI Defendants, the NIAID Defendants, the CISA Defendants, and theState Department Defendants, this Court finds the Plaintiffs are likely to succeed on the merits thatthese Defendants “jointly participated” in the actions of the private social-media companies as
well, by insinuating themselves into the social-media companies’ private affairs and blurring theline between public and private action.636
However, this Court finds Plaintiffs are not likely to succeed on the merits that the “joint
participation” occurred as a result of a conspiracy with the social-media companies. The evidence

It is not necessary to repeat the details discussed in the “significant encouragement” analysis in order to findPlaintiffs have met their initial burden.
636

116

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 117 of 155 PageID #:26908

thus far shows that the social-media companies cooperated due to coercion, not because of aconspiracy.
This Court finds the White House Defendants, the Surgeon General Defendants, the CDC
Defendants, the NIAID Defendants, the FBI Defendants, the CISA Defendants, and the State
Department Defendants likely “jointly participated” with the social-media companies to such an
extent that said Defendants have become “pervasively entwined” in the private companies’
workings to such an extent as to blur the line between public and private action. Therefore,
Plaintiffs are likely to succeed on the merits that the government Defendants are responsible forthe private social-media companies’ decisions to censor protected content on social-media
platforms.
iii. Other Arguments
While not admitting any fault in the suppression of free speech, Defendants blame theRussians, 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 Presidential
election caused social-media companies to change their rules with regard to alleged
misinformation. The Defendants argue the Federal Government promoted necessary andresponsible actions to protect public health, safety, and security when confronted by a deadly
pandemic and hostile foreign assaults on critical election infrastructure. They further contend that
the COVID-19 pandemic resulted in social-media companies changing their rules in order to fight
related disinformation. Finally, Defendants argue the social-media companies’ desire to makemoney from advertisers resulted in change to their efforts to combat disinformation. In otherwords, Defendants maintain they had nothing to do with Plaintiffs’ censored speech and blamed
any suppression of free speech on the Russians, COVID-19, and the companies’ desire to make117

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 118 of 155 PageID #:26909

money. The social-media platforms and the Russians are of course not defendants in thisproceeding, and neither are they bound by the First Amendment. The only focus here is on theactions of the Defendants themselves.
Although the COVID-19 pandemic was a terrible tragedy, Plaintiffs assert that it is still nota reason to lessen civil liberties guaranteed by our Constitution. “If human nature and history
teaches anything, it is that civil liberties face grave risks when governments proclaim indefinite
states of emergency.” Does 1-3 v. Mills, 142 S. Ct. 17, 20–21 (2021) (Gorsuch, J., dissenting). The“grave risk” here is arguably the most massive attack against free speech in United States history.
Another argument of Defendants is that the previous Administration took the same actions
as Defendants. Although the “switchboarding” by CISA started in 2018, there is no indication orevidence yet produced in this litigation that the Trump Administration had anything to do with it.
Additionally, whether the previous Administration suppressed free speech on social media is not
an issue before this Court and would not be a defense to Defendants even if it were true.
Defendants also argue that a preliminary injunction would restrict the Defendants’ right togovernment speech and would transform government speech into government action whenever theGovernment comments on public policy matters. The Court finds, however, that a preliminary
injunction here would not prohibit government speech. The traditional test used to differentiate
government speech from private speech discusses three relevant factors: (1) whether the medium
at issue has historically been used to communicate messages from the government; (2) whether
the public reasonably interprets the government to be the speaker; and (3) whether the government
maintains editorial control over the speech. Pleasant Grove City, Utah v. Summum, 555 U.S. 460,
465–80 (2009). A government entity has the right to speak for itself and is entitled to say what it
wishes and express the views it wishes to express. The Free Speech Clause restricts government

118

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 119 of 155 PageID #:26910

regulation of private speech; it does not regulate government speech. Pleasant Grove City, Utah,
555 U.S. at 468.
The Defendants argue that by making public statements, this is nothing but government
speech. However, it was not the public statements that were the problem. It was the alleged use ofgovernment agencies and employees to coerce and/or significantly encourage social-media
platforms to suppress free speech on those platforms. Plaintiffs point specifically to the various
meetings, emails, follow-up contacts, and the threat of amending Section 230 of theCommunication Decency Act. Plaintiffs have produced evidence that Defendants did not just use
public statements to coerce and/or encourage social-media platforms to suppress free speech, butrather used meetings, emails, phone calls, follow-up meetings, and the power of the government
to pressure social-media platforms to change their policies and to suppress free speech. Content
was seemingly suppressed even if it did not violate social-media policies. It is the alleged coercion
and/or significant encouragement that likely violates the Free Speech Clause, not government
speech, and thus, the Court is not persuaded by Defendants’ arguments here.
b. Standing
The United States Constitution, via Article III, limits federal courts’ jurisdiction to “cases”
and “controversies.” Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005) (citing U.S. Const.
art. III, § 2). The “law of Article III standing, which is built on separation-of-powers principles,
serves to prevent the judicial process from being used to usurp the powers of the politicalbranches.” Town of Chester, N.Y. v. Laroe Ests., Inc., 581 U.S. 433, 435 (2017) (citation omitted).
Thus, “the standing question is whether the plaintiff has alleged such a personal stake in theoutcome of the controversy as to warrant [its] invocation of federal-court jurisdiction and to justify
exercise of the court’s remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498-99

119

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 120 of 155 PageID #:26911(1975) (citation and internal quotation marks omitted). The Article III standing requirements apply
to claims for injunctive and declaratory relief. See Seals v. McBee, 898 F.3d 587, 591 (5th Cir.
2018), as revised (Aug. 9, 2018); Lawson v. Callahan, 111 F.3d 403, 405 (5th Cir. 1997).
Article III standing is comprised of three essential elements. Spokeo, Inc. v. Robins, 578
U.S. 330, 338 (2016), as revised (May 24, 2016) (citation omitted). “The plaintiff must have (1)suffered an injury-in-fact, (2) that is fairly traceable to the challenged conduct of the defendant,and (3) that is likely to be redressed by a favorable judicial decision. The plaintiff, as the party
invoking federal jurisdiction, bears the burden of establishing these elements.” Id. (internal
citations omitted). Furthermore, “[a] plaintiff must demonstrate standing for each claim he seeks
to press and for each form of relief that is sought.” Town of Chester, N.Y., 581 U.S. at 439 (citations
omitted). However, the presence of one party with standing “is sufficient to satisfy Article III’s
case-or-controversy requirement.” Texas, 809 F.3d 134 (citing Rumsfeld v. F. for Acad. &Institutional Rts., Inc., 547 U.S. 47, 52 n.2 (2006)).
In the context of a preliminary injunction, it has been established that “the ‘merits’ required
for the plaintiff to demonstrate a likelihood of success include not only substantive theories but
also the establishment of jurisdiction.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913(D.C. Cir. 2015). In order to establish standing, the plaintiff must demonstrate that they haveencountered or suffered an injury attributable to the defendant’s challenged conduct and that suchinjury is likely to be resolved through a favorable decision. Lujan v. Def. of Wildlife, 504 U.S. 555,
560–61 (1992). Further, during the preliminary injunction stage, the movant is only required todemonstrate a likelihood of proving standing. Speech First, Inc. v. Fenves, 979 F.3d 319, 330 (5thCir. 2020). Defendants raise challenges to each essential element of standing for both the Private
Plaintiffs and the States. Each argument will be addressed in turn below. For the reasons stated120

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 121 of 155 PageID #:26912

herein, the Court finds that the Plaintiffs have demonstrated a likelihood of satisfying Article III’s
standing requirements.
i.

Injury-in-fact

Plaintiffs seeking to establish injury-in-fact must show that they suffered “an invasion of alegally protected interest” that is “concrete and particularized” and “actual or imminent, notconjectural or hypothetical.” Spokeo, 578 U.S. at 339 (citations and internal quotation marks
omitted). For an injury to be “particularized,” it must “affect the plaintiff in a personal andindividual way.” Id. (citations and internal quotation marks omitted).
Plaintiffs argue that that they have asserted violations of their First Amendment right tospeak and listen freely without government interference.637 In response, Defendants contend that
Plaintiffs’ allegations rest on dated declarations that focus on long-past conduct, making Plaintiffs’
fears of imminent injury entirely speculative.638 The Court will first address whether the Plaintiff
States are likely to prove an injury-in-fact. Then the court will examine whether the Individual
Plaintiffs are likely to prove an injury-in-fact. For the reasons explained below, both the Plaintiff
States and Individual Plaintiffs are likely to prove an injury-in-fact.
(1) Plaintiff States
In denying Defendants’ Motion to Dismiss,639 this Court previously found that the Plaintiff
States had sufficiently alleged injury-in-fact to satisfy Article III standing under either a direct
injury or parens patriae theory of standing and that the States were entitled to special solicitude in
the standing analysis.640 At the preliminary injunction stage, the issue becomes whether the
Plaintiffs are likely to prove standing. See Speech First, Inc., 979 F.3d, at 330. The evidence

637

See [Doc. No. 214, at 66]
See [Doc. No. 266, at 151]
639
[Doc. No. 128]640
[Doc. No. 224, at 20–33]
638

121

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 122 of 155 PageID #:26913

produced thus far through discovery shows that the Plaintiff States are likely to establish an injuryin-fact through either a parens patriae or direct injury theory of standing.
Parens patriae, which translates to “parent of the country,” traditionally refers to the state’srole as a sovereign and guardian for individuals with legal disabilities. Alfred L. Snapp & Son, Inc.
v. Puerto Rico, ex rel., Barez, 458 U.S. 592, 600 n.8 (1982) (quoting Black’s Law Dictionary 1003
(5th ed. 1979)). The term “parens patriae lawsuit” has two meanings: it can denote a lawsuitbrought by the state on behalf of individuals unable to represent themselves, or a lawsuit initiatedby the state to protect its “quasi-sovereign” interests. Id. at 600; see also Kentucky v. Biden, 23
F.4th 585, 596–98 (6th Cir. 2022); Chapman v. Tristar Prod., Inc., 940 F.3d 299, 305 (6th Cir.
2019). A lawsuit based on the former meaning is known as a “third-party” parens patriae lawsuit,and it is clearly established law that states cannot bring such lawsuits against the federal
government. Kentucky, 23 F.4th at 596. Thus, to have parens patriae standing, the Plaintiff States
must show a likelihood of establishing an injury to one or more of their quasi-sovereign interests.
In Snapp, the United States Supreme Court determined that Puerto Rico had parens patriae
standing to sue the federal government to safeguard its quasi-sovereign interests. Snapp, 458 U.S.
at 608. The Court identified two types of injuries to a state’s quasi-sovereign interests: one is an
injury to a significant portion of the state’s population, and the other is the exclusion of the stateand its residents from benefiting from participation in the federal system. Id. at 607–608. The Court
did not establish definitive limits on the proportion of the population that must be affected but
suggested that an indication could be whether the injury is something the state would address
through its sovereign lawmaking powers. Id. at 607. Based on the injuries alleged by Puerto Rico,the Court found that the state had sufficiently demonstrated harm to its quasi-sovereign interestsand had parens patriae standing to sue the federal government. Id. at 609–10.

122Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 123 of 155 PageID #:26914

In Massachusetts v. E.P.A., 549 U.S. 497 (2007), the United States Supreme Court further
clarified the distinction between third-party and quasi-sovereign parens patriae lawsuits. There,
the Court concluded that Massachusetts had standing to sue the EPA to protect its quasi-sovereigninterests. The Court emphasized the distinction between allowing a state to protect its citizens fromfederal statutes (which is prohibited) and permitting a state to assert its rights under federal law(which it has standing to do). Massachusetts, 549 U.S. at 520 n.17. Because Massachusetts sought
to assert its rights under a federal statute rather than challenge its application to its citizens, theCourt determined that the state had parens patriae standing to sue the EPA.
Here, the Plaintiff States alleged and have provided ample evidence to support injury to
two quasi-sovereign interests: the interest in safeguarding the free-speech rights of a significant
portion of their respective populations and the interest in ensuring that they receive the benefits
from participating in the federal system. Defendants argue that this theory of injury is too
attenuated and that Plaintiffs are unlikely to prove any direct harm to the States’ sovereign or quasisovereign interests, but the Court does not find this argument persuasive.
Plaintiffs have put forth ample evidence regarding extensive federal censorship that
restricts the free flow of information on social-media platforms used by millions of Missourians
and Louisianians, and very substantial segments of the populations of Missouri, Louisiana, andevery other State.641 The Complaint provides detailed accounts of how this alleged censorshipharms “enormous segments of [the States’] populations.” Additionally, the fact that such extensive
examples of suppression have been uncovered through limited discovery suggests that the
See supra, pp. 8–94 (detailing the extent and magnitude of Defendants’ pressure and coercion tactics with socialmedia companies); See also [Doc. No. 214-1, at ¶¶ 1348 (noting that Berenson had nationwide audiences and over
200,000 followers when he was de-platformed on Twitter), 1387 (noting that the Gateway Pundit had more than 1.3
million followers across its social-media accounts before it was suspended), 1397–1409 (noting that Hines has
approximately 13,000 followers each on her Health Freedom Louisiana and Reopen Louisiana Facebook pages,
approximately 2,000 followers on two other Health Freedom Group Louisiana pages, and that the former Facebook
pages have faced increasing censorship penalties and that the latter pages were de-platformed completely), etc.]
641

123

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 124 of 155 PageID #:26915

censorship explained above could merely be a representative sample of more extensive
suppressions inflicted by Defendants on countless similarly situated speakers and audiences,including audiences in Missouri and Louisiana. The examples of censorship produced thus far cut
against Defendants’ characterization of Plaintiffs’ fear of imminent future harm as “entirely
speculative” and their description of the Plaintiff States’ injuries as “overly broad and generalized
grievance[s].”642 The Plaintiffs have outlined a federal regime of mass censorship, presented
specific examples of how such censorship has harmed the States’ quasi-sovereign interests inprotecting their residents’ freedom of expression, and demonstrated numerous injuries tosignificant segments of the Plaintiff States’ populations.
Moreover, the materials produced thus far suggest that the Plaintiff States, along with asubstantial segment of their populations, are likely to show that they are being excluded from thebenefits intended to arise from participation in the federal system. The U.S. Constitution, like theMissouri and Louisiana Constitutions, guarantees the right of freedom of expression,encompassing both the right to speak and the right to listen. U.S. Const. amend. I; Virginia State
Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756–57 (1976). The
United States Supreme Court has acknowledged the freedom of expression as one of the mostsignificant benefits conferred by the federal Constitution. W. Virginia State Bd. of Educ. v.
Barnette, 319 U.S. 624, 642 (1943) (“If there is any fixed star in our constitutional constellation,
it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion.”). Plaintiffs have demonstrated that they are likely to provethat federal agencies, actors, and officials in their official capacity are excluding the Plaintiff States

642[Doc. No. 266, at 151]

124

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 125 of 155 PageID #:26916

and their residents from this crucial benefit that is meant to flow from participation in the federal
system. See Snapp, 458 U.S. at 608.
Accordingly, the Court finds that the States have alleged injuries under a parens patriae
theory of standing because they are likely to prove injuries to the States’ quasi-sovereign interests
in protecting the constitutionally bestowed rights of their citizens.
Further, Plaintiffs have demonstrated direct censorship injuries that satisfy therequirements of Article III as injuries in fact.643 Specifically, the Plaintiffs contend that Louisiana’s
Department of Justice, which encompasses the office of its Attorney General, faced direct
censorship on YouTube for sharing video footage wherein Louisianans criticized mask mandates
and COVID-19 lockdown measures on August 18, 2021, immediately following the federal
Defendants’ strong advocacy for COVID-related “misinformation” censorship.644 Moreover, aLouisiana state legislator experienced censorship on Facebook when he posted content addressing
the vaccination of children against COVID-19.645 Similarly, during public meetings concerning
proposed county-wide mask mandates held by St. Louis County, a political subdivision of
Missouri, certain citizens openly expressed their opposition to mask mandates. However, YouTube
censored the entire videos of four public meetings, removing the content because some citizens
expressed the view that masks are ineffective.646 Therefore, this Court finds that the Plaintiff States
have also demonstrated a likelihood of establishing an injury-in-fact under a theory of direct injury
sufficient to satisfy Article III.

643

[Doc. No. 214-1, at ¶¶1428–1430][Id. at ¶1428]
645[Id. at ¶1429]
646[Id. at ¶ 1430]
644

125

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 126 of 155 PageID #:26917

Accordingly, for the reasons stated above and explained in this Court’s ruling on the
Motion to Dismiss,647 the Plaintiff States are likely to succeed on establishing an injury-in-fact
under Article III.
(2) Individual Plaintiffs
In Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (“SBA List”), the Supreme
Court held that an allegation of future injury may satisfy the Article III injury-in-fact requirement
if there is a “substantial risk” of harm occurring. (quoting Clapper v. Amnesty Int'l USA, 568 U.S.
398, 408 (2013). In SBA List, the petitioner challenged a statute that prohibited making false
statements during political campaigns. Id. at 151–52. The Court considered the justiciability of thepre-enforcement challenge and whether it alleged a sufficiently imminent injury under Article III.
It noted that pre-enforcement review is warranted when the threatened enforcement is “sufficiently
imminent.” Id. at 159. The Court further emphasized that past enforcement is indicative that thethreat of enforcement is not “chimerical.” Id. at 164 (quoting Steffel v. Thompson, 415 U.S. 452,
459 (1974)).
Likewise, in Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 302 (1979), theSupreme Court found that the plaintiffs satisfied Article III’s injury-in-fact requirement because
the fear of future injury was not “imaginary or wholly speculative.” There, the Court considered apre-enforcement challenge to a statute that deemed it an unfair labor practice to encourage
consumer boycotts through deceptive publicity. Id. at 301. Because the plaintiffs had engaged inpast consumer publicity campaigns and intended to continue those campaigns in the future, theCourt found their challenge to the consumer publicity provision satisfied Article III. Id. at 302.
Similar pre-enforcement review was recognized in Virginia v. Am. Booksellers Ass'n, Inc., 484

647[Doc. No. 214, at 20–33]

126

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 127 of 155 PageID #:26918

U.S. 383, 386 (1988), where the Supreme Court held that booksellers could seek review of a law
criminalizing the knowing display of “harmful to juveniles” material for commercial purposes, as
defined by the statute. Virginia, 484 U.S. at 386 (certified question answered sub nom.
Commonwealth v. Am. Booksellers Ass'n, Inc., 236 Va. 168 (1988)).
Here, each of the Individual Plaintiffs are likely to demonstrate an injury-in-fact through a
combination of past and ongoing censorship. Bhattacharya, for instance, is the apparent victim of
an ongoing “campaign” of social-media censorship, which indicates that he is likely to experience
future acts of censorship.648 Similarly, Kulldorff attests to a coordinated federal censorship
campaign against the Great Barrington Declaration, which implies future censorship.649
Kulldorff’s ongoing censorship experiences on his personal social-media accounts provide
evidence of ongoing harm and support the expectation of imminent future harm.650 Kheriaty alsoaffirms ongoing and anticipated future injuries, noting that the issue of “shadow banning” hissocial-media posts has intensified since 2022.651
Hoft and Hines present similar accounts of past, ongoing, and anticipated future censorshipinjuries. Defendants even appear to be currently involved in an ongoing project that encourages
and engages in censorship activities specifically targeting Hoft’s website.652 Hines, too, recounts
past and ongoing censorship injuries, stating that her personal Facebook page, as well as the pages

See [Doc. No. 214-1, ¶787 (an email from Dr. Francis Collins to Dr. Fauci and Cliff Lane which read: “Hi [Dr.
Fauci] and Cliff, See https://gbdeclaration.org. This proposal from the three fringe epidemiologists who met with theSecretary seems to be getting a lot of attention – and even a co-signature from Nobel Prize winner Mike Leavitt at
Stanford. There needs to be a quick and devastating published take down of its premises. I don’t see anything like thatonline yet – is it underway?”), ¶¶1368–1372 (describing the covert and ongoing censorship campaign against him)]649
See [Id. at ¶¶1373–1380 (where Kulldorff explains an ongoing campaign of censorship against his personal socialmedia accounts, including censored tweets, censored posts criticizing mask mandates, removal of LinkedIn posts, andthe ongoing permanent suspension of his LinkedIn account)]
650
[Id.]
651
[Id. at ¶¶1383–1386]
652
See [Id. at ¶¶1387–1396 (describing the past and ongoing campaign against his website, the Gateway Pundit, which
resulted in censorship on Facebook, Twitter, Instagram, and YouTube)]
648

127

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 128 of 155 PageID #:26919

of Health Freedom Louisiana and Reopen Louisiana, are constantly at risk of being completely deplatformed.653 At the time of her declaration, Hines’ personal Facebook account was under an
ongoing ninety-day restriction. She further asserts, and the evidence supplied in support of thepreliminary injunction strongly implies, that these restrictions can be directly traced back to federal
officials.
Each of the Private Plaintiffs alleges a combination of past, ongoing, and anticipated future
censorship injuries. Their allegations go beyond mere complaints about past grievances. Moreover,they easily satisfy the substantial risk standard. The threat of future censorship is significant, andthe history of past censorship provides strong evidence that the threat of further censorship is notillusory or speculative. Plaintiffs’ request for an injunction is not solely aimed at addressing theinitial imposition of the censorship penalties but rather at preventing any continued maintenanceand enforcement of such penalties. Therefore, the Court concludes that the Private Plaintiffs havefulfilled the injury-in-fact requirement of Article III.
Based on the reasons outlined above, the Court determines that both the States and Private
Plaintiffs have satisfied the injury-in-fact requirement of Article III.
ii.

Traceability

To establish traceability, or “causation” in this context, a plaintiff must demonstrate a“direct relation between the injury asserted and the injurious conduct alleged.” Holmes v. Sec. Inv.
Prot. Corp., 503 U.S. 258, 268 (1992). Therefore, courts examining this element of standing mustassess the remoteness, if any, between the plaintiff’s injury and the defendant’s actions. As
explained in Ass'n of Am. Physicians & Surgeons v. Schiff, the plaintiff must establish that it is“‘substantially probable that the challenged acts of the defendant, not of some absent third party’653

See [Id. at ¶¶1397–1411]

128

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 129 of 155 PageID #:26920

caused or will cause the injury alleged.” 518 F. Supp. 3d 505, 513 (D.D.C. 2021), aff'd sub nom.
Ass'n of Am. Physicians & Surgeons, Inc. v. Schiff, 23 F.4th 1028 (D.C. Cir. 2022) ("AAPS II")
(quoting Fla. Audubon Soc. v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996)).
Plaintiffs argue that they are likely to prove that their injuries are fairly traceable to
Defendants’ actions of inducing and jointly participating in the social-media companies’
viewpoint-based censorship under a theory of “but-for” causation, conspiracy, or aiding andabetting.654 In support, they cite the above-mentioned examples of switchboarding and otherpressure tactics employed by Defendants.655 In response, Defendants assert that there is no basis
upon which this Court can conclude that the social-media platforms made the disputed contentmoderation decisions because of government pressure.656 For the reasons explained below, theCourt finds that Plaintiffs are likely to prove that their injuries are fairly traceable to the conductof the Defendants.
In Duke Power Co. v. Carolina Envt. Study Grp., the United States Supreme Court foundthat a plaintiff’s injury was fairly traceable to a statute under a theory of “but-for” causation. 438
U.S. 59 (1978). The plaintiffs, who were comprised in part of individuals living near the proposedsites for nuclear plants, challenged a statute that limited the aggregate liability for a single nuclear
accident under the theory that, but for the passing of the statute, the nuclear plants would not havebeen constructed. Id. at 64–65. The Supreme Court agreed with the district court’s finding that654

[Doc. No. 204, at 67–68][Id. at 69–71 (citing Doc. No. 214-1, ¶¶57, 64 “(promising the White House that Facebook would censor “oftentrue” but “sensationalized” content)”; ¶ 73 “(imposing forward limits on non-violative speech on WhatsApp)”; ¶¶ 8992 “(assuring the White House that Facebook will use a “spectrum of levers” to censor content that “do[es] not violate
our Misinformation and Harm policy, including “true but shocking claims or personal anecdotes, or discussing the
choice to vaccinate in terms of personal and civil liberties”)”; ¶¶ 93-100 “(agreeing to censor Tucker Carlson’s content
at the White House’s behest, even though it did not violate platform policies)”, ¶¶ 103-104 “(Twitter deplatforming
Alex Berenson at White House pressure)”; ¶ 171 “(Facebook deplatformed the Disinformation Dozen immediately
after these comments). Facebook officials scrambled to get back into the White House’s good graces. Id. ¶¶ 172, 224(pleading for “de-escalation” and “working together”).”]
656[Doc. No. 266, at 131–136]
655

129

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 130 of 155 PageID #:26921

there was a “substantial likelihood” that the nuclear plants would have been neither completed nor
operated absent the passage of the nuclear-friendly statute. Id. at 75.
In Duke Power Co., the defendants essentially argued that the statute was not the “but-for”
cause of the injuries claimed by the plaintiffs because if Congress had not passed the statute, theGovernment would have developed nuclear power independently, and the plaintiffs would havelikely suffered the same injuries from government-operated plants as they would have fromprivately operated ones. Id. In rejecting that argument, the Supreme Court stated:
Whatever the ultimate accuracy of this speculation, it is not
responsive to the simple proposition that private power companies
now do in fact operate the nuclear-powered generating plants
injuring [the plaintiffs], and that their participation would not haveoccurred but for the enactment and implementation of the PriceAnderson Act. Nothing in our prior cases requires a party seeking to
invoke federal jurisdiction to negate the kind of speculative andhypothetical possibilities suggested in order to demonstrate thelikely effectiveness of judicial relief.
Id. at 77–78. The Supreme Court’s reluctancy to follow the defendants down a rabbit-hole ofspeculation and “what-ifs” is highly instructive.
Here, Defendants heavily rely upon the premise that social-media companies would havecensored Plaintiffs and/or modified their content moderation policies even without any alleged
encouragement and coercion from Defendants or other Government officials. This argument iswholly unpersuasive. Unlike previous cases that left ample room to question whether public
officials’ calls for censorship were fairly traceable to the Government; the instant case paints a full
picture.657 A drastic increase in censorship, deboosting, shadow-banning, and account suspensions
directly coincided with Defendants’ public calls for censorship and private demands for657

See [Doc. No. 204, at 41-44 (where this Court distinguished this case from cases that “left gaps” in the pleadings)]

130

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 131 of 155 PageID #:26922

censorship.658 Specific instances of censorship substantially likely to be the direct result of
Government involvement are too numerous to fully detail, but a birds-eye view shows a clear
connection between Defendants’ actions and Plaintiffs injuries.
The Plaintiffs’ theory of but-for causation is easy to follow and demonstrates a highlikelihood of success as to establishing Article III traceability. Government officials began publicly
threatening social-media companies with adverse legislation as early as 2018.659 In the wake of
COVID-19 and the 2020 election, the threats intensified and became more direct.660 Around thissame time, Defendants began having extensive contact with social-media companies via emails,
phone calls, and in-person meetings.661 This contact, paired with the public threats and tense
relations between the Biden administration and social-media companies, seemingly resulted in an
efficient report-and-censor relationship between Defendants and social-media companies.662
Against this backdrop, it is insincere to describe the likelihood of proving a causal connection
between Defendants’ actions and Plaintiffs’ injuries as too attenuated or purely hypothetical.
The evidence presented thus goes far beyond mere generalizations or conjecture: Plaintiffs
have demonstrated that they are likely to prevail and establish a causal and temporal link between

658

See, e.g., [Doc. No. 241-1, ¶¶1, 7, 17, 164 (examples of Government officials threatening adverse legislation againstsocial-media companies if they do not increase censorship efforts); ¶¶ 51, 119, 133, 366, 424, 519 (examples of socialmedia companies, typically following up after an in-person meeting or phone call, ensuring Defendants that theywould increase censorship efforts)]
659[Doc. No. 214-1, ¶1]
660
See, e.g., [Id. at ¶ 156 (Psaki reinforcing President Biden’s “They’re killing people” comment); ¶166 (media outlets
reporting tense relations between the Biden administration and social-media companies)]
661
See, e.g., [Doc. No. 174-1, at 3 (Twitter employees setting up a more streamlined process for censorship requests
because the company had been “recently bombarded” with censorship requests from the White House)]
662
See, e.g., [Doc. Nos. 174-1, at 3 (Twitter employees setting up a more streamlined process for censorship requests
because the company had been “recently bombarded” with censorship requests from the White House); at 4 (Twitter
suspending a Jill Biden parody account within 45 minutes of a White House official requesting twitter to “remove thisaccount immediately”); 214-1, at ¶799 (Drs. Bhattacharya and Kuldorff began experienced extensive censorship onsocial media shortly after Dr. Collins emailed Dr. Fauci seeking a “quick and devastating take down” of the GBD.);¶1081 (Twitter removing tweets within two minutes of Scully reporting them for censorship.); ¶¶1266-1365(Explaining how the Virality Project targeted Hines and health-freedom groups.); 214-9, at 2-3 (Twitter ensuring theWhite House that it would increase censorship of “misleading information” following a meeting between White House
officials and Twitter employees.); etc.]

131

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 132 of 155 PageID #:26923

Defendants’ actions and the social-media companies’ censorship decisions. Accordingly, thisCourt finds that there is a substantial likelihood that Plaintiffs would not have been the victims ofviewpoint discrimination but for the coercion and significant encouragement of Defendants
towards social-media companies to increase their online censorship efforts.663
For the reasons stated above, as well as those set forth in this Court’s previous ruling on
the Motion to Dismiss,664 the Court finds that Plaintiffs are likely to succeed in establishing thetraceability element of Article III standing.
iii.

Redressability

The redressability element of the standing analysis requires that the alleged injury is “likely
to be redressed by a favorable decision.” Lujan, 504 U.S. at 560–61. “To determine whether an
injury is redressable, a court will consider the relationship between ‘the judicial relief requested’
and the ‘injury’ suffered.” California v. Texas, 141 S. Ct. 2104, 2115, 210 L. Ed. 2d 230 (2021)(quoting Allen v. Wright, 468 U.S. 737, 753 n.19 (1984), abrogated by Lexmark Int'l, Inc. v. Static
Control Components, Inc., 572 U.S. 118 (2014)). Additionally, courts typically find that where an
injury is traceable to a defendant’s conduct, it is usually redressable as well. See, e.g., Scenic Am.,
Inc. v. United States Dep't of Transportation, 836 F.3d 42, 54 (D.C. Cir. 2016) (“[C]ausation andredressability are closely related, and can be viewed as two facets of a single requirement.”); Toll
Bros. v. Twp. of Readington, 555 F.3d 131, 142 (3d Cir. 2009) (“Redressability . . . is closely
related to traceability, and the two prongs often overlap.”); El Paso Cnty. v. Trump, 408 F. Supp.
3d 840, 852 (W.D. Tex. 2019).

Because this Court finds that Plaintiffs have successfully shown a likelihood of success under a “but for” theory of
causation, it will not address Plaintiffs arguments as to other theories of causation. However, the Court does note thatcaselaw from outside of the Fifth Circuit supports a more lenient theory of causation for purposes of establishing
traceability. See, e.g., Tweed-New Haven Airport Auth. v. Tong, 930 F.3d 65, 71 (2d Cir. 2019); Parsons v. U.S. Dep’tof Justice, 801 F.3d 701, 714 (6th Cir. 2015).
664[Doc. No. 204, at 67–71]
663

132

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 133 of 155 PageID #:26924

Plaintiffs argue that they are likely to prove that a favorable decision would redress theirinjuries because they have provided ample evidence that their injuries are imminent andongoing.665 In response, Defendants contend that any threat of future injury is merely speculative
because Plaintiffs rely on dated declarations and focus on long-past conduct of Defendants andsocial-media companies.666 For the reasons explained below, the Court finds that Plaintiffs arelikely to prove that their injuries would be redressed by a favorable decision.
As this Court previously noted,667 a plaintiff’s standing is evaluated at the time of filing of
the initial complaint in which they joined. Lynch v. Leis, 382 F.3d 642, 647 (6th Cir. 2004); Davisv. F.E.C., 554 F.3d 724, 734 (2008); S. Utah Wilderness All. v. Palma, 707 F.3d 1143, 1153 (10thCir. 2013). The State Plaintiffs filed suit on May 5, 2022,668 and the individual Plaintiffs joined on
August 2, 2022.669 Both groups are likely to prove that threat of future injury is more than merely
speculative.
Plaintiff States have produced sufficient evidence to demonstrate a likelihood of proving
ongoing injuries as of the time the Complaint was filed. For instance, on June 13, 2023, Flaherty
still wanted to “get a sense of what [Facebook was] planning” and denied the company’s request
for permission to stop submitting its biweekly “Covid Insights Report” to the White House.670
Specifically, Flaherty wanted to monitor Facebook’s suppression of COVID-19 misinformation“as we start to ramp up [vaccines for children under the age of five].”671 The CDC also remainedin collaboration with Facebook in June of 2022 and even delayed implementing policy changes

665[Doc. No. 214, at 71–74][Doc. No. 266, at 152–157]
667[Doc. No. 204, at 62–65]
668[Doc. No. 1]
669[Doc. No. 45]
670[Doc. No. 214-1, at ¶425]
671
[Id.]
666

133

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 134 of 155 PageID #:26925“until [it got] the final word from [the CDC].”672 After coordinating with the CDC and WhiteHouse, Facebook informed the White House of its new and government-approved policy, stating:“As of today, [June 22, 2022], all COVID-19 vaccine related misinformation and harm policies on
Facebook and Instagram apply to people 6 months or older.”673
Likewise, the individual Plaintiffs are likely to demonstrate that their injuries were
imminent and ongoing as of August 2, 2022. Evidence obtained thus far indicates that Defendants
have plans to continue the alleged censorship activities. For example, preliminary discovery
revealed CISA’s expanding efforts in combating misinformation, with a focus on the 2022
elections.674 As of August 12, 2022, Easterly was directing the “mission of Rumor Control” forthe 2022 midterm elections,675 and CISA candidly reported to be “bee[fing] up [its] efforts to fightfalsehoods[]" in preparation for the 2024 election cycle.676 Chan of the FBI also testified at his
deposition that online disinformation continues to be discussed between the federal agencies andsocial-media companies at the USG Industry meetings, and Chan assumes that this will continue
through the 2024 election cycle.677 All of this suggests that Plaintiffs are likely to prove that risk
of future censorship injuries is more than merely speculative. Additionally, past decisions tosuppress speech result in ongoing injury as long as the speech remains suppressed, and the pastcensorship experienced by individual Plaintiffs continues to inhibit their speech in the present.
These injuries are also affecting the rights of the Plaintiffs’ audience members, including those in
Plaintiff States, who have the First Amendment right to receive information free from Government
interference.

672[Doc. Nos. 71-7, at 6; 214-1, ¶424][Doc. Nos. 71-7, at 6; 71-3, at 5; 214-1, ¶¶424–425]
674[Doc. No. 71-8, at 2; Doc. 86-7, at 14]
675[Doc. No. 86-7, at 14]
676[Doc. No. 214-1, at ¶1106 (see also [Doc. No. 71-8, at 2 (CISA “wants to ensure that it is set up to extract lessons
learned from 2022 and apply them to the agency’s work in 2024.”]
677[Id. at ¶ 866]
673

134

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 135 of 155 PageID #:26926

Accordingly, and for the reasons stated above, the Court finds that Plaintiffs are likely toprove that a favorable decision would redress their injuries because those injuries are ongoing andsubstantially likely to reoccur.
iv.

Recent United States Supreme Court cases of Texas andHaaland

Defendants cite to two recent cases from the Supreme Court of the United States which
they claim undermine this Court’s previous ruling about the Plaintiff States’ likelihood of proving
Article III standing.
First, Defendants argue that United States v. Texas, No. 22-58, 2023 WL 4139000 (U.S.
June 23, 2023), undermines the States’ Article III standing. In Texas, Texas and Louisiana sued
the Department of Homeland Security (the “Department”), as well as other federal agencies,
claiming that the recently promulgated “Guidelines for the Enforcement of Civil Immigration
Law” contravened two federal statutes. Id. at *2. The Supreme Court held that the states lacked
Article III standing because “a citizen lacks standing to contest the policies of the prosecuting
authority when he himself is neither prosecuted nor threatened with prosecution.” The Court
further noted that the case was “categorically different” from other standing decisions “because it
implicates only one discrete aspect of the executive power—namely, the Executive Branch’s
traditional discretion over whether to take enforcement actions against violators of federal law.”Id. at *2, *8 (citations omitted).
Here, the Plaintiff States are not asserting a theory that the Defendants failed to act inconformity with the Constitution. To the contrary, the Plaintiff States assert that Defendants haveaffirmatively violated their First Amendment right to free speech. The Plaintiff States allege and(as extensively detailed above) are likely to prove that the Defendants caused direct injury to thePlaintiff States by significantly encouraging and/or coercing social-media companies to censor
135

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 136 of 155 PageID #:26927

posts made on social-media. Further, as noted in this Court’s previous ruling, the Plaintiff States
are likely to have Article III standing because a significant portion of the Plaintiff States’
population has been prevented from engaging with the posts censored by the Defendants. The
Supreme Court noted that “when the Executive Branch elects not to arrest or prosecute, it does not
exercise coercive power over an individual’s liberty or property, and thus does not infringe uponinterests that courts are often called upon to protect.” Id. at *5. Here, federal officials allegedly did
exercise coercive power, and the Plaintiffs are likely to prevail on their claim that the Defendants
violated the First Amendment rights of the Plaintiff States, their citizens, and the Individual
Plaintiffs.
Defendants contend that the Supreme Court in Texas narrowed the application of special
solicitude afforded to states because the Supreme Court noted that the standing analysis in
Massachusetts “d[id] not control” because “[t]he issue there involved a challenge to the denial ofa statutorily authorized petition for rulemaking,” rather than the exercise of enforcement
discretion. Id. at *8 n.6. This Court disagrees with Defendants on that point. As noted by Plaintiffs,
the majority opinion in Texas does not mention special solicitude. Further, this Court noted in its
previous analysis of standing that the Plaintiff States could satisfy Article III’s standing
requirements without special solicitude. Therefore, even to the extent this Court “leaves that ideaon the shelf,” as suggested in Justice Gorsuch’s concurrence, the Court nonetheless finds that thePlaintiff States are likely to prove Article III standing.
Defendants also argue that the Supreme Court’s recent ruling in Haaland v. Brackeen, No.
21-376, 2023 WL 4002951 (U.S. June 15, 2023), undermines the Plaintiff States’ Article III
standing. In Haaland, the Supreme Court ruled that Texas did not possess standing to challenge
the placement provisions of the Indian Child Welfare Act, which prioritizes Indian families in136

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 137 of 155 PageID #:26928

custody disputes involving Indian children. Id. at *19. The Supreme Court reasoned that the statesin Texas could not “assert equal protection claims on behalf of its citizens because ‘[a] State does
not have standing as parens patriae to bring an action against the Federal Government.’” Id.
(quoting Snapp, 458 U.S. at 610 n.16)). The Defendants argue that this statement precludes parens
patriae standing in the present case.678 However, in its brief discussion regarding parens patriae
standing, the Haaland Court quoted footnote 16 from Snapp, which, in turn, reiterated the “Mellonbar.” Haaland, 2023 WL 4002951, at *19; Snapp, 458 U.S. at 610 n.16 (quoting Massachusetts v.
262 U.S. at 485–86.
Plaintiffs correctly note that, although both cases employ broad language, neither Haalandnor Snapp elaborate on the extent of the “Mellon bar.” Moreover, the Supreme Court has clarified
in other instances that parens patriae suits are permitted against the federal government outside
the scope of the Mellon bar. See Massachusetts v. EPA, 549 U.S. at 520 n.17, (explaining the“critical difference” between barred parens patriae suits by Mellon and allowed parens patriae
suits against the federal government).
Consistent with Massachusetts v. EPA, this Court has previously determined that the
Mellon bar applies to “third-party parens patriae suits,” but not to “quasi-sovereign-interest
suits.”679 In Haaland, Texas presented a “third-party parens patriae suit,” as opposed to a “quasisovereign-interest suit,” as it asserted the equal protection rights of only a small minority of its
population (i.e., non-Indian foster or adoptive parents seeking to foster or adopt Indian children
against the objections of relevant Indian tribes), which clearly did not qualify as a quasi-sovereigninterest. See Haaland, 2023 WL 4002951, at *19 & n.11). Here, however, Louisiana and Missouri
advocate for the rights of a significant portion of their populations, specifically the hundreds of

678
679

[Doc. 289, at 2].
[Doc. 224, at 215–26], quoting Kentucky v. Biden, 23 F.4th 585, 598 (6th Cir. 2022).

137

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 138 of 155 PageID #:26929

thousands or millions of citizens who are potential audience members affected by federal socialmedia speech suppression.
Furthermore, when the Haaland Court determined that Texas lacked third-party standing,it stressed that Texas did not have either a “‘concrete injury’ to the State” or any hindrance to thethird party’s ability to protect its own interests. Id. at *19 n.11 (quoting Georgia v. McCollum, 505
U.S. 42, 55–56 (1992)). Here, by contrast, the Plaintiff States have demonstrated a likelihood of
succeeding on their claims that they have suffered, and likely will continue to suffer, numerous
concrete injuries resulting from federal social-media censorship.680 Additionally, the ability of thethird parties in this case to protect their own interests is hindered because the diffuse First
Amendment injury experienced by each individual audience member in Louisiana and Missouri
lacks sufficient economic impact to encourage litigation through numerous individual lawsuits.
See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64 n.6 (1963).
Defendants further contend that Haaland rejected Texas’s argument regarding the ICWA’s
placement provisions requiring Texas to compromise its commitment to being impartial in childcustody proceedings.681 However, the Supreme Court rejected this argument for a specific reason:“Were it otherwise, a State would always have standing to bring constitutional challenges when it
is complicit in enforcing federal law.” Haaland, 2023 WL 4002951, at *19. By contrast, Missouri
and Louisiana do not assert that the federal government mandates their complicity in enforcing
federal social-media-censorship regimes. The Plaintiff States instead assert that they, along with asubstantial portion of their populations, have been injured by Defendants’ actions.
Neither Texas nor Haaland undermine this Court’s previous ruling that the Plaintiff States
have Article III standing to sue Defendants in the instant case. Further, the evidence produced thus

680
681

See, e.g., [Doc. 214-1, ¶¶ 1427–1442][Doc. 289, at 3] quoting Haaland, 2023 WL 4002951, at *19.

138

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 139 of 155 PageID #:26930

far through limited discovery demonstrates that Plaintiffs are likely to succeed on their First
Amendment claims. Accordingly, the Court finds that Plaintiffs are likely to prove all elements ofArticle III standing, and therefore, are likely to establish that this Court has jurisdiction.
2. Irreparable Harm
The second requirement for a Preliminary Injunction is a showing of irreparable injury:
plaintiffs must demonstrate “a substantial threat of irreparable injury” if the injunction is notissued. Texas, 809 F.3d at 150. For injury to be “irreparable,” plaintiffs need only show it cannot
be undone through monetary remedies. Burgess v. Fed. Deposit Inc., Corp., 871 F.3d 297, 304(5th Cir. 2017). Deprivation of a procedural right to protect a party’s concrete interests is
irreparable injury. Texas, 933 F.3d at 447. Additionally, violation of a First Amendment
constitutional right, even for a short period of time, is always irreparable injury. Elrod, 427 U.S.
at 373.
Plaintiffs argue in their memorandum that the First Amendment violations are continuing
and/or that there is a substantial risk that future harm is likely to occur. In contrast, Defendants
argue that Plaintiffs are unable to show imminent irreparable harm because the alleged conduct
occurred in the past, is not presently occurring, and is unlikely to occur in the future. Defendants
argue Plaintiffs rely upon actions that occurred approximately one year ago and that it cannot be
remedied by any prospective injunctive relief. Further, Defendants argue that there is no “imminentharm” because the COVID-19 pandemic is over and because the elections where the alleged
conduct occurred are also over.
The Court finds that Plaintiffs have demonstrated a “significant threat of injury from theimpending action, that the injury is imminent, and that money damages would not fully repair theharm.” Humana, Inc., v. Jackson, 804 F.2d 1390, 1394 (5th Cir. 1986). To demonstrate irreparable

139

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 140 of 155 PageID #:26931

harm at the preliminary injunction stage, Plaintiffs must adduce evidence showing that theirreparable injury is likely to occur during the pendency of the litigation. Justin Indus. Inc., v.
Choctaw Secs., L.P., 920 F.2d 262, 268 n. 7 (5th Cir. 1990). This Plaintiffs have done.
Defendants argue that the alleged suppression of social-media content occurred in responseto the COVID-19 pandemic and attacks on election infrastructure, and therefore, the alleged
conduct is no longer occurring. Defendants point out that the alleged conduct occurred between
one to three years ago. However, the information submitted by Plaintiffs was at least partiallybased on preliminary injunction-related discovery682 and third-party subpoena requests that were
submitted to five social-media platforms on or about July 19, 2022.683 The original Complaint684
was filed on May 5, 2022, and most of the responses to preliminary injunction-related discovery
provided answers to discovery requests that occurred before the Complaint was filed. Sincecompletion of preliminary-injunction related discovery took over six months, most, if not all, of
the information obtained would be at least one year old.
Further, the Defendants’ decision to stop some of the alleged conduct does not make it any
less relevant. A defendant claiming that its voluntary compliance moots a case bears the formidable
burden of showing that it is absolutely clear the alleged wrongful behavior could not reasonably
be expected to recur. Already, LLC v. Nike, 568 U.S. 85, 91 (2013). Defendants have not yet met
this burden here.
Defendants also argue that, due to the delay in the Plaintiffs seeking relief,685 the Plaintiffs
have not shown “due diligence” in seeking relief. However, this Court finds that Plaintiffs haveexercised due diligence. This is a complicated case that required a great deal of discovery in order682[Doc. No. 34][Doc. No. 37]
684[Doc. No. 1]
685
Plaintiffs allege actions occurring as far back as 2020.
683

140

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 141 of 155 PageID #:26932

to obtain the necessary evidence to pursue this case. Although it has taken several months to obtain
this evidence, it certainly was not the fault of the Plaintiffs. Most of the information Plaintiffs
needed was unobtainable except through discovery.
Defendants further argue the risk that Plaintiffs will sustain injuries in the future is
speculative and depends upon the action of the social-media platforms. Defendants allege thePlaintiffs have therefore not shown imminent harm by any of the Defendants.
In Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (“SBA List”), the Supreme
Court held that, for purposes of an Article III injury-in-fact, an allegation of future injury may
suffice if there is “a ‘substantial risk’ that the harm will occur.” (quoting Clapper v. Amnesty Int'lUSA, 568 U.S. 398, 408, (2013)). In SBA List, a petitioner challenged a statute that prohibitedmaking certain false statements during the course of a political campaign. Id. at 151–52. In
deciding whether the pre-enforcement challenge was justiciable—and in particular, whether it
alleged a sufficiently imminent injury for purposes of Article III—the Court noted that preenforcement review is warranted under circumstances that render the threatened enforcement“sufficiently imminent.” Id. at 159. Specifically, the Court noted that past enforcement is “goodevidence that the threat of enforcement is not ‘chimerical.’” Id. at 164 (quoting Steffel v.
Thompson, 415 U.S. 452, 459 (1974)).
Similarly, in Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 302 (1979), theSupreme Court held that a complaint alleges an Article III injury-in-fact where fear of future injury
is not “imaginary or wholly speculative.” In Babbitt, the Supreme Court considered a preenforcement challenge to a statute that made it an unfair labor practice to encourage consumers toboycott using “dishonest, untruthful, and deceptive publicity.” Id. at 301. Because the plaintiffs
had engaged in consumer publicity campaigns in the past and alleged an intention to continue those

141

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 142 of 155 PageID #:26933

campaigns in the future, the Court held that their challenge to the consumer publicity provisionpresented an Article III case or controversy. Id. at 302; see also Virginia v. Am. Booksellers Ass'n,Inc., 484 U.S. 383, 386 (1988) (where the Supreme Court held that booksellers could seek preenforcement review of a law making it a crime to “knowingly display for commercial purpose”
material that is “harmful to juveniles,” as defined by the statute).
Therefore, the question is whether Plaintiffs have alleged a “substantial risk” that harm
may occur, which is not “imaginary or wholly speculative.” This Court finds that the alleged pastactions of Defendants show a substantial risk of harm that is not imaginary or speculative. SBA
List, 573 U. S. at 164. Defendants apparently continue to have meetings with social-media
companies and other contacts.686
Although the COVID-19 pandemic is no longer an emergency, it is not imaginary or
speculative to believe that in the event of any other real or perceived emergency event, theDefendants would once again use their power over social-media companies to suppress alternative
views. And it is certainly not imaginary or speculative to predict that Defendants could use theirpower over millions of people to suppress alternative views or moderate content they do not agreewith in the upcoming 2024 national election. At oral arguments Defendants were not able to statethat the “switchboarding” and other election activities of the CISA Defendants and the State
Department Defendants would not resume prior to the upcoming 2024 election;687 in fact, Chan
testified post 2020, “we’ve never stopped.”688 Notably, a draft copy of the DHS’s “Quadrennial
Homeland Security Review,” which outlines the department’s strategy and priorities in upcoming
years, states that the department plans to target “inaccurate information” on a wide range of topics,

686[Doc. No. 204-1 at 40][Doc. No. 208 at 122]
688
[Chan depo. at 8–9]
687

142

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 143 of 155 PageID #:26934

including the origins of the COVID-19 pandemic, the efficacy of COVID-19 vaccines, racial
justice, the U.S. withdrawal from Afghanistan, and the return of U.S. Support of Ukraine.689
The Plaintiffs are likely to succeed on the merits in their claims that there is a substantial
risk that harm will occur, that is not imaginary or speculative. Plaintiffs have shown that not only
have the Defendants shown willingness to coerce and/or to give significant encouragement tosocial-media platforms to suppress free speech with regard to the COVID-19 pandemic andnational elections, they have also shown a willingness to do it with regard to other issues, such asgas prices,690 parody speech,691 calling the President a liar,692 climate change,693 gender,694 andabortion.695 On June 14, 2022, White House National Climate Advisor Gina McCarthy, at an Axios
event entitled, “A Conversation on Battling Disinformation,” was quoted as saying, “We have to
get together; we have to get better at communicating, and frankly, the tech companies have to stopallowing specific individuals over and over to spread disinformation.”696
The Complaint (and its amendments) shows numerous allegations of apparent future harm.
Plaintiff Bhattacharya alleges ongoing social-media censorship.697 Plaintiff Kulldorff alleges anongoing campaign of censorship against the GBD and his personal social-media accounts.698
Plaintiff Kheriaty also alleges ongoing and expected future censorship,699 noting “shadowbanning” his social-media account is increasing and has intensified since 2022.700 Plaintiffs Hoft

689

[Doc. No. 209-23 at 4][Doc. No. 212-3 at 65–66, ¶ 211]
691
[Id. at 58-60, ¶¶ 180–188]
692[Id. at 61, ¶ 190]
693
[Id. at 63-64, ¶¶ 200–203]
694[Id. at 64-64, ¶¶ 204–208]
695[Id. at 65, ¶¶ 209–210]
696[Doc. No. 214-15]
697[Doc. No. 45-3, ¶¶ 15–33]
698[Doc. No. 45-4, ¶¶ 14–16]
699[Doc. No. 45-7, ¶¶ 12–18]
700[Id. at ¶¶ 15]
690

143

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 144 of 155 PageID #:26935

and Hines also allege ongoing and expected future censorship injuries.701 It is not imaginary or
speculative that the Defendants will continue to use this power. It is likely.
The Court finds that Plaintiffs are likely to succeed on their claim that they have shown
irreparable injury sufficient to satisfy the standard for the issuance of a preliminary injunction.
3. Equitable Factors and Public Interest
Thus far, Plaintiffs have satisfied the first two elements to obtain a preliminary injunction.
The final two elements they must satisfy are that the threatened harm outweighs any harm that
may result to the Federal Defendants and that the injunction will not undermine the public interest.
Valley v. Rapides Par. Sch. Bd., 118 F.3d 1047, 1051 (5th Cir. 1997). These two factors overlap
considerably. Texas, 809 F.3d at 187. In weighing equities, a court must balance the competingclaims of injury and must consider the effect on each party of the granting or withholding of therequested relief. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). The public interest
factor requires the court to consider what public interests may be served by granting or denying apreliminary injunction. Sierra Club v. U.S. Army Corps of Engineers, 645 F.3d 978, 997–98 (8thCir. 2011).
Defendants maintain their interest in being able to report misinformation and warn socialmedia companies of foreign actors’ misinformation campaigns outweighs the Plaintiffs’ interestin the right of free speech. This Court disagrees and finds the balance of equities and the public
interest strongly favors the issuance of a preliminary injunction. The public interest is served bymaintaining the constitutional structure and the First Amendment free speech rights of thePlaintiffs. The right of free speech is a fundamental constitutional right that is vital to the freedomof our nation, and Plaintiffs have produced evidence of a massive effort by Defendants, from the701[Doc. No. 45-7 at ¶¶ 12–18]; [Doc. No. 84 at ¶¶ 401–420]; [Doc. No. 45-12 at ¶ 4, 12]144

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 145 of 155 PageID #:
26936

White House to federal agencies, to suppress speech based on its content. Defendants’ alleged
suppression has potentially resulted in millions of free speech violations. Plaintiffs’ free speechrights thus far outweighs the rights of Defendants, and thus, Plaintiffs satisfy the final elements
needed to show entitlement to a preliminary injunction.
4. Injunction Specificity
Lastly, Defendants argue that Plaintiff’s proposed preliminary injunction lacks the
specificity required by Federal Rule of Civil Procedure 65 and is impermissibly overbroad. Rule65(d)(1) requires an injunction to “state its terms specifically” and to “describe in reasonable detailthe acts or acts restrained or required.” The specificity provisions of Rule 65(d) are designed toprevent uncertainty and confusion on the part of those faced with injunction orders and to avoid
possible contempt based upon a decree too vague to be understood. Atiyeh v. Capps, 449 U.S.
1312, 1316–17 (1981). An injunction must be narrowly tailored to remedy the specific action thatgives rise to the injunction. Scott v. Schedler, 826 F.3d 207, 211 (5th Cir. 2016).
This Court believes that an injunction can be narrowly tailored to only affect prohibited
activities, while not prohibiting government speech or agency functions. Just because theinjunction may be difficult to tailor is not an excuse to allow potential First Amendment violations
to continue. Thus, the Court is not persuaded by Defendants arguments here.
Because Plaintiffs have met all the elements necessary to show entitlement to a preliminary
injunction, this Court shall issue such injunction against the Defendants described above.
IV.

CLASS CERTIFICATIONIn their Third Amended Complaint, the Individual Plaintiffs purport to bring a class action“on behalf of themselves and two classes of other persons similarly situated to them.”702 Plaintiffs

702[Doc. No. 268 at ¶489].

145

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 146 of 155 PageID #:26937

go on to describe the two proposed classes, as well as state generally that each requirement forclass certification is met.703 Defendants opposed Plaintiffs’ request for class certification in their
Response to Plaintiffs’ Motion for Class Certification and for Leave to File Third Amended
Complaint.704
The Court is obligated to analyze whether this litigation should proceed as a class action.
See Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996) (“A district court must conduct
a rigorous analysis of the rule 23 prerequisites before certifying a class.”). Pursuant to thisobligation, the Court questioned counsel at the hearing on the preliminary injunction as to the basis
for class certification. As explained in further detail below, the Court finds that Plaintiffs failed tomeet their burden of proof, and class certification is improper here.
A. Class Certification Standard under FRCP 23“The decision to certify is within the broad discretion of the court, but that discretion must
be exercised within the framework of rule 23.” Id. at 740. “The party seeking certification bears
the burden of proof.” Id.
Federal Rule of Civil Procedure 23(a) lays out the four key prerequisites for a class action.
It states:
One or more members of a class may sue or be sued as representative
parties on behalf of all members only if:(1) the class is so numerous that joinder of all members is
impracticable;(2) there are questions of law or fact common to the class;(3) the claims or defenses of the representative parties are typical of
the claims or defenses of the class; and(4) the representative parties will fairly and adequately protect theinterests of the class.
Fed. R. Civ. P. 23(a).

703
704

[Id. at ¶¶490–501].
[Doc. No. 244].

146

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 147 of 155 PageID #:26938

In addition to the enumerated requirements above, Plaintiffs must propose a class that has
an objective and precise definition. “The existence of an ascertainable class of persons to be
represented by the proposed class representative is an implied prerequisite of Federal Rule of Civil
Procedure 23.” John v. Nat'l Sec. Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007).
“In addition to satisfying Rule 23(a)’s prerequisites, parties seeking class certification mustshow that the action is maintainable under Rule 23(b)(1), (2), or (3).” Amchem Prod., Inc. v.
Windsor, 521 U.S. 591, 614 (1997). Here, Plaintiffs specifically bring this class action under Rule23(b)(2), which allows for maintenance of a class action where “the party opposing the class has
acted or refused to act on grounds that apply generally to the class, so that final injunctive relief orcorresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.
23(b0) (2). “Civil rights cases against parties charged with unlawful, class-based discrimination
are prime examples” of Rule 23(b)(2) class actions. Amchem Prod., Inc., 521 U.S. at 614.
Notably, the Fifth Circuit recently held that a standing analysis is necessary before
engaging in the class certification analysis. Angell v. GEICO Advantage Ins. Co., 67 F.4th 727,
733 (5th Cir. 2023). However, because this Court has already completed multiple standing
analyses in this matter, and because the Court ultimately finds that the class should not be certified,
the Court will not address which standing test should be applied to this specific issue.

B. Analysis
In order to certify this matter as a class action, the Court must find that Plaintiffs haveestablished each element of Rule 23(a). See In re Monumental Life Ins. Co., 365 F.3d 408, 414–
15 (5th Cir. 2004) (“All classes must satisfy the four baseline requirements of rule 23(a):147Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 148 of 155 PageID #:26939

numerosity, commonality, typicality, and adequacy of representation.”). The Court finds that
Plaintiffs failed to meet their burden, and therefore, the Court will not certify the class action.
1. Class Definition
Plaintiffs propose two classes to proceed with their litigation as a class action. First,
Plaintiffs define Class 1 as follows:
The class of social-media users who have engaged or will engage in,or who follow, subscribe to, are friends with, or are otherwise
connected to the accounts of users who have engaged or will engage
in, speech on any social-media company’s platform(s) that has beenor will be removed; labelled; used as a basis for suspending,deplatforming, issuing strike(s) against, demonetizing, or taking
other adverse action against the speaker; downranked; deboosted;
concealed; or otherwise suppressed by the platform after Defendants
and/or those acting in concert with them flag or flagged the speech
to the platform(s) for suppression.705
Next, Plaintiffs define Class 2 as follows:
The class of social-media users who have engaged in or will engage
in, or who follow, subscribe to, are friends with, or are otherwise
connected to the accounts of users who have engaged in or will
engage in, speech on any social-media company’s platform(s) thathas been or will be removed; labelled; used as a basis for
suspending, deplatforming, issuing strike(s) against, demonetizing,or taking other adverse action against the speaker; downranked;
deboosted; concealed; or otherwise suppressed by the company
pursuant to any change to the company’s policies or enforcement
practices that Defendants and/or those acting in concert with them
have induced or will induce the company to make.706“It is elementary that in order to maintain a class action, the class sought to be represented
must be adequately defined and clearly ascertainable.” DeBremaecker v. Short, 433 F.2d 733, 734(5th Cir. 1970). The Court finds that the class definitions provided by Plaintiffs are neither“adequately defined” nor “clearly ascertainable.” Simply put, there is no way to tell just how many

705
706

[Doc. No. 268 at ¶490][Id. at ¶491]

148

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 149 of 155 PageID #:26940

people or what type of person would fit into these proposed classes. The proposed class definitions
are so broad that almost every person in America, and perhaps in many other countries as well,
could fit into the classes. The Court agrees with Defendants that the language used is simply too
vague to maintain a class action using these definitions.707 Where a class definition is, as here, “toobroad and ill-defined” to be practicable, the class should not be certified. See Braidwood Mgmt.,
Inc. v. Equal Emp. Opportunity Comm’n, No. 22-10145, 2023 WL 4073826, at *14 (5th Cir. June20, 2023).
Further, no evidence was produced at the hearing on the motion for preliminary injunctionthat “would have assisted the district court in more accurately delineating membership in aworkable class.” DeBremaecker, 433 F.2d at 734. The Court questioned Plaintiffs’ counsel about
the issues with the proposed class definitions, but counsel was unable to provide a solution thatwould make class certification feasible here. Counsel for Plaintiffs stated that “the class definitionis sufficiently precise,” but the Court fails to see how that is so, and counsel did not explain any
further.708 Counsel for Plaintiffs focused on the fact that the proposed class action falls under Rule23(b)(2), providing for broad injunctive relief, and therefore, counsel argued that the Court would
not need to “figure out every human being in the United States of American [sic] who was actually
adversely affected.”709 Even if the Court does not need to identify every potential class member
individually, the Court still needs to be able to state the practical bounds of the class definition—
something it cannot do with the loose wording given by Plaintiffs.

707[Doc. No. 244 at 7]
Hearing Transcript at 181, line 15.
709[Id. at lines 16–18]
708

149

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 150 of 155 PageID #:26941

Without a feasible class definition, the Court cannot certify Plaintiffs’ proposed classaction. Out of an abundance of caution, however, the Court will address the other enumerated
prerequisites of Rule 23(a) below.
2. Numerosity
The numerosity requirement mandates that a class be “so large that joinder of all members
is impracticable.” Fed. R. Civ. P. 23(a)(1). “Although the number of members in a proposed classis not determinative of whether joinder is impracticable,” classes with a significantly high numberof potential members easily satisfy this requirement. Mullen v. Treasure Chest Casino, LLC, 186
F.3d 620, 624 (5th Cir. 1999) (finding class of 100 to 150 members satisfied the numerosity
requirement). Other factors, such as “the geographical dispersion of the class” and “the nature of
the action,” may also support a finding that the numerosity element has been met. Id. at 624–25.
Here, Plaintiffs state that both Class 1 and Class 2 are “sufficiently numerous that joinderof all members is impracticable.”710 Plaintiffs reference the “content of hundreds of users with,collectively, hundreds of thousands or millions of followers” who were affected by Defendants’
alleged censorship.711 Thus, based on a surface-level look at potential class members, it appears
that the numerosity requirement would be satisfied because the class members’ numbers reach atleast into the thousands, if not the millions.
However, the numerosity requirement merely serves to highlight the same issue describedabove: the potential class is simply too broad to even begin to fathom who would fit into the class.
Joinder of all the potential class members is more than impractical—it is impossible. Thus, while
the sheer number of potential class members may tend towards class certification, the Court is only

710
711

[Doc. No. 268 at ¶¶492–93][Id. at ¶¶492]

150

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 151 of 155 PageID #:26942

further convinced by Plaintiffs’ inability to estimate the vast number of class members thatcertification is improper here.
3. Commonality
The commonality requirement ensures that there are “questions of law or fact common to
the class.” Fed. R. Civ. P. 23(a)(2). “The test for commonality is not demanding and is met ‘where
there is at least one issue, the resolution of which will affect all or a significant number of theputative class members.’” Mullen, 186 F.3d at 625 (quoting Lightbourn v. County of El Paso, 118
F.3d 421, 426 (5th Cir. 1997)).
Here, Plaintiffs state that both classes share common questions of law or fact, including“the question whether the government is responsible for a social-media company’s suppression ofcontent that the government flags to the company for suppression” for Class 1 and “the question
whether the government is responsible for a social-media company’s suppression of content
pursuant to a policy or enforcement practice that the government induced the company to adopt or
enforce” for Class 2.712 These questions of law are broadly worded and may not properly
characterize the specific issues being argued in this case.
At the hearing for the preliminary injunction, Plaintiffs’ counsel clarified that the alleged
campaign of censorship “involve[es] a whole host of common questions whose resolution aregoing to determine whether or not there’s a First Amendment violation.”713 The Court agrees that
there is certainly a common question of First Amendment law that impacts each member of the
proposed classes, but notes Defendants’ well-reasoned argument that Plaintiffs may be attempting
to aggregate too many questions into one class action.714 The difficulty of providing “a single,

712[Id. at ¶¶494–95]
Hearing Transcript, at 183, lines 19–21.
714[Doc. No. 244 at 10]
713

151

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 152 of 155 PageID #:26943

class-wide answer,” as highlighted by Defendants, further proves to this Court that classcertification is likely not the best way to proceed with this litigation.715 Although commonality isa fairly low bar, the Court is not convinced Plaintiffs have met their burden on this element of Rule23(a).
4. Typicality
The typicality requirement mandates that named parties’ claims or defenses “aretypical…of the class.” Fed. R. Civ. P. 23(a)(3). “Like commonality, the test for typicality is notdemanding.” Mullen, 186 F.3d at 625. It “focuses on the similarity between the named plaintiffs’
legal and remedial theories and the theories of those whom they purport to represent.” Lightbourn,
118 F.3d at 426.
Here, Plaintiffs assert that the Individual Plaintiffs’ claims are typical of both Class 1 andClass 2 members’ claims because they “all arise from the same course of conduct by
Defendants…namely, the theory that such conduct violates the First Amendment.”716 Further,
Plaintiffs state that the Individual Plaintiffs “are not subject to any affirmative defenses that are
inapplicable to the rest of the class and likely to become a major focus of the case.”717
While the general claims of each potential class member would arise from the Defendants’
alleged First Amendment violations, the Individual Plaintiffs have not explained how their claims
are typical of each proposed class specifically. For example, Class 2 includes those social-media
users who “follow, subscribe to, are friends with, or are otherwise connected to the accounts ofusers” subject to censorship.718 While the Individual Plaintiffs detail at length their own
censorship, they do not clarify how they have been harmed by the censorship of other users. Again,

715[Id. at 13][Doc. No. 268 at ¶496–97]
717
[Id.]
718
[Id. at ¶491]
716

152

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 153 of 155 PageID #:26944

this confusion highlights the myriad issues with this proposed class action as a result of the illdefined and over-broad class definitions. The Court cannot make a finding that the Individual
Plaintiffs’ claims are typical of all class members’ claims, simply because the Court cannot identify
who would fit in the proposed class. Merely stating that the Rule 23(a) requirements have been
met is not enough to persuade this Court that the class should be certified as stated.
5. Adequate Representation
The final element of a class certification analysis requires that the class representatives“fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Differences
between named plaintiffs and class members render the named plaintiffs’ inadequate
representatives only if those differences create conflicts between the named plaintiffs’ interests
and the class members’ interests.” Mullen, 186 F.3d at 626.
On this element, Plaintiffs state that they “are willing and able to take an active role in thecase, control the course of litigation, and protect the interest of absentees in both classes.”719
Plaintiff also state that “[n]o conflicts of interest currently exist or are likely to develop” between
themselves and the absentees.720 This element is likely met, without evidence to the contrary.
However, without a working class definition, and with the issues concerning the other Rule23(a) elements discussed above, the Court finds class certification inappropriate here, regardlessof the adequacy of the Individual Plaintiffs’ representation. Thus, for the foregoing reasons, theCourt declines to certify this matter as a class action.
V.

CONCLUSION
Once a government is committed to the principle of silencing thevoice of opposition, it has only one place to go, and that is down thepath of increasingly repressive measures, until it becomes a source

719
720

[Id. at ¶498]
[Id.]

153

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 154 of 155 PageID #:26945

of terror to all its citizens and creates a country where everyone lives
in fear.
Harry S. Truman
The Plaintiffs are likely to succeed on the merits in establishing that the Government has
used its power to silence the opposition. Opposition to COVID-19 vaccines; opposition to
COVID-19 masking and lockdowns; opposition to the lab-leak theory of COVID-19; opposition
to the validity of the 2020 election; opposition to President Biden’s policies; statements that the
Hunter Biden laptop story was true; and opposition to policies of the government officials in
power. All were suppressed. It is quite telling that each example or category of suppressed speech
was conservative in nature. This targeted suppression of conservative ideas is a perfect exampleof viewpoint discrimination of political speech. American citizens have the right to engage in freedebate about the significant issues affecting the country.
Although this case is still relatively young, and at this stage the Court is only examining itin terms of Plaintiffs’ likelihood of success on the merits, the evidence produced thus far depicts
an almost dystopian scenario. During the COVID-19 pandemic, a period perhaps best
characterized by widespread doubt and uncertainty, the United States Government seems to haveassumed a role similar to an Orwellian “Ministry of Truth.”721
The Plaintiffs have presented substantial evidence in support of their claims that they werethe victims of a far-reaching and widespread censorship campaign. This court finds that they arelikely to succeed on the merits of their First Amendment free speech claim against the Defendants.
Therefore, a preliminary injunction should issue immediately against the Defendants as set out

An “Orwellian 'Ministry of Truth'” refers to the concept presented in George Orwell's dystopian novel, '1984.' In
the novel, the Ministry of Truth is a governmental institution responsible for altering historical records anddisseminating propaganda to manipulate and control public perception.
721

154

Case 3:22-cv-01213-TAD-KDM Document 293 Filed 07/04/23 Page 155 of 155 PageID #:26946

herein. The Plaintiffs Motion for Preliminary Injunction [Doc. No. 10] is GRANTED IN PARTand DENIED IN PART.
The Plaintiffs’ request to certify this matter as a class action pursuant to Fed. R. Civ. P.
Article 23(b)(2) is DENIED.
MONROE, LOUISIANA this 4th day of July 2023.

_______________________________________TERRY A. DOUGHTY
UNITED STATES DISTRICT JUDGE

155