IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION

THE DAILY WIRE, LLC; 

FDRLST MEDIA, LLC; and

THE STATE OF TEXAS, by and through its 

Attorney General, Ken Paxton, 

Plaintiffs,

v.

DEPARTMENT OF STATE;

GLOBAL ENGAGEMENT CENTER;

ANTONY BLINKEN, in his official capacity as 

Secretary of State;

LEAH BRAY, in her official capacity as Deputy 

Coordinator of the State Department’s Global 

Engagement Center;

JAMES P. RUBIN, in his official capacity as 

Coordinator for the Global Engagement Center of the 

State Department;

DANIEL KIMMAGE, in his official capacity as the 

Principal Deputy Coordinator for the Global 

Engagement Center at the State Department;

ALEXIS FRISBIE, in her official capacity as Senior 

Technical Advisor of the Technology Engagement 

Team for the Global Engagement Center at the State 

Department;

PATRICIA WATTS, in her official capacity as the 

Director of the Technology Engagement Team at the 

Global Engagement Center at the State Department,

Defendants. 

Civil Action No.: 6:23-cv-00609

RESPONSE TO 

DEFENDANTS’ MOTION TO 

TRANSFER VENUE

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO TRANSFER VENUE

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 1 of 23 PageID #: 697
i

TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................. i

TABLE OF AUTHORITIES .......................................................................................................... ii

BACKGROUND ............................................................................................................................ 1

LEGAL STANDARD..................................................................................................................... 2

ARGUMENT.................................................................................................................................. 3

I. TEXAS HAS STANDING TO BRING THE CASE ............................................................ 3

II. TEXAS CAN BRING SUIT IN ANY DISTRICT WITHIN ITS BORDERS ........................... 7

III. THE “SUBSTANTIAL EVENTS” TEST IS IRRELEVANT TO THE VENUE ANALYSIS 

FOR TEXAS’S CLAIMS, AND THE MEDIA PLAINTIFFS’ CLAIMS HAVE PENDENT 

VENUE ..................................................................................................................... 9

IV. THIS COURT HAS VENUE BECAUSE A “SUBSTANTIAL PART OF THE EVENTS”

INJURED THE MEDIA PLAINTIFFS IN THIS DISTRICT ............................................... 10

V. THE “INTERESTS OF JUSTICE” DO NOT ALLOW FOR TRANSFER OF VENUE 

BECAUSE VENUE IS PROPER IN THE EASTERN DISTRICT OF TEXAS........................ 14

CONCLUSION............................................................................................................................. 15

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 2 of 23 PageID #: 698
ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alabama v. Army Corps of Eng’rs,

382 F. Supp. 2d 1301 (N.D. Ala. 2005)...................................................................................... 8

Atcom Support LP v. Maria, 

No. 15-28, 2016 WL 4118914 (D. Del. Aug. 1, 2016)............................................................. 10

Atlanta & F.R. Co. v. W. Ry. Co. of Ala.,

50 F. 790 (5th Cir. 1982) ............................................................................................................ 8

Bennett v. Spear, 

520 U.S. 154 (1997).................................................................................................................... 6

California v. Azar,

911 F.3d 558 (9th Cir. 2018) ...................................................................................................... 8

Career Colleges & Schools of Texas v. Dep’t of Educ.,

No. 4:23-CV-0206-P, 2023 WL 2975164 (N.D. Tex. Apr. 17, 2023)................................ 10, 11

Dep’t of Com. v. New York,

139 S. Ct. 2551 (2019)............................................................................................................ 6, 7

Diesel Power Source, LLC v. Crazy Carl’s Turbos, Inc.,

No. 2:14–cv–00826–DN, 2015 WL 1034231 (D. Utah Mar. 10, 2015)................................... 13

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022).................................................................................................................... 4

Florida v. United States,

No. 3:21-CV-1066-TKW-EMT, 2022 WL 2431443 (N.D. Fl. Jan. 18, 2022)........................... 8

Forte Supply, LLC v. Mojo Frozen Yogurt, LLC,

No. 13-CV-00797-RM-BNB, 2013 WL 5477165 (D. Colo. 2013).......................................... 13

Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 

528 U.S. 167 (2000).................................................................................................................... 7

Globe Glass & Mirror Co. v. Brown,

888 F. Supp. 768 (E.D. La. 1995)............................................................................................. 11

Halcyon Biomed v. Glatt Air Tech., 

No. H-19-690, 2019 WL 2420232 (S.D. Tex. June 10, 2019) ................................................. 14

In re Clarke,

No. 24-50079, 2024 WL 886953 (5th Cir. Mar. 1. 2024) ........................................................ 15

In re Volkswagen of Am., Inc. (“Volkswagen II”),

545 F.3d 304 (5th Cir. 2008) ................................................................................................ 3, 15

Inclusive Cmtys. Proj., Inc. v. Dep’t of Treasury,

946 F.3d 649 (5th Cir. 2019) .................................................................................................. 6, 7

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 3 of 23 PageID #: 699
iii

Int’l Cotton Mktg., Inc. v. Commodity Credit Corp.,

No. 5:08-CV-159-C, 2009 WL 107052345 (N.D. Tex. Feb. 4, 2009) ..................................... 11

Luv N’ Care, Ltd. v. Insta-Mix, Inc.,

438 F.3d 465 (5th Cir. 2006) .................................................................................................... 11

McClintock v. Sch. Bd. E. Feliciana Par., 

299 Fed. App’x 363 (5th Cir. 2008) ......................................................................................... 11

Myers v. Bennett L. Offs.,

238 F.3d 1068 (9th Cir. 2001) .................................................................................................. 10

Nabong v. Paddayuman,

289 F. Supp. 3d 131 (D.D.C. 2018).......................................................................................... 10

Neirbo Co. v. Bethlehem Shipbuilding Corp.,

308 U.S. 165 (1939).................................................................................................................... 3

NetChoice, L.L.C. v. Paxton,

49 F.4th 439 (5th Cir. 2022) ....................................................................................................... 4

NetChoice, LLC v. Paxton,

144 S. Ct. 477 (Mem) (Sept. 29, 2023)................................................................................... 4, 5

Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott,

734 F.3d 406 (5th Cir. 2013) ...................................................................................................... 3

Seariver Maritime Fin. Holdings, Inc. v. Pena,

952 F. Supp. 455 (S.D. Tex. 1996)............................................................................................. 3

Seville v. Maersk Line,

53 F.4th 890 (5th Cir. 2022) ..................................................................................................... 15

Smilde v. Snow,

73 F. App’x 24 (5th Cir. 2003)................................................................................................... 3

Stafford v. Briggs, 

444 U.S. 527 (1980).................................................................................................................. 15

Texas v. Dep’t of Homeland Sec.,

661 F. Supp. 3d 683 (S.D. Tex. 2023).............................................................................. 8, 9, 15

Texas v. Garland,

No. 5:23-CV-034-H, 2023 WL 4851893 (N.D. Tex. July 28, 2023) ..................................... 8, 9

Texas v. Mayorkas,

No. 6:23-CV-00001, 2023 WL 5616184 (S.D. Tex. Aug. 29, 2023)......................................... 8

Texas v. United States (DAPA), 

809 F.3d 134 (5th Cir. 2015) ................................................................................................ 3, 10

Texas v. United States,

95 F. Supp. 3d 965 (N.D. Tex. 2015) ....................................................................................... 10

Texas v. United States,

No. 15-cv-00056-O, 2015 WL 13424776 (N.D. Tex. Jun. 26, 2015) ...................................... 10

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 4 of 23 PageID #: 700
iv

Umphress v. Hall,

479 F. Supp. 3d 344 (N.D. Tex. 2020) ............................................................................... 10, 11

Utah v. Walsh,

No. 2:23-CV-016-Z, 2023 WL 2663256 (N.D. Tex. March 28, 2023)...................................... 8

VP, LLC v. Newmar Corp., 

No. 11-2813, 2012 WL 6201828 (E.D. La. Dec. 12, 2012) ..................................................... 11

Zurich Am. Ins. Co. v. Tejas Concrete & Mins., Inc.,

982 F. Supp. 2d 714 (N.D. Tex. 2013) ..................................................................................... 11

Statutes

28 U.S.C. § 1391............................................................................................................... 2, 7, 9, 10

28 U.S.C. § 1404(a) ........................................................................................................................ 3

28 U.S.C. § 1406(a) .................................................................................................................. 3, 15

H.B. 20, 87th Leg. (Tex. 2021)................................................................................................... 4, 5

Tex. Bus. & Com. Code Ann. § 120.001........................................................................................ 4

Other Authorities

Wright & Miller,

FED. PRAC. & PROC.: CIVIL 2d (1994 supp.)............................................................................ 11

Wright & Miller,

14D FED. PRAC. & PROC. JURIS. (4th ed. 2022)................................................................. 3, 8, 10

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 5 of 23 PageID #: 701
1

Contrary to Defendants’ claim that venue in the Eastern District of Texas is improper and 

that this case should be transferred to the U.S. District Court for the District of Columbia, Texas 

has standing to challenge Defendants’ ultra vires action, and it resides for venue purposes in this 

district. Further, a substantial part of the harm inflicted on the Media Plaintiffs occurred in the 

Eastern District of Texas, making venue doubly proper here. Accordingly, this Court should deny 

Defendants’ Motion to Transfer Venue to the U.S. District Court for the District of Columbia. 

BACKGROUND

Defendants’ introductory and background sections of their Motion are inaccurate. Contrary 

to Defendants’ assertions, this case is not “primarily a challenge by two press outlets ... concerning 

policy decisions made by federal officials in Washington, D.C.” ECF14 at 1. Rather, this is a joint 

lawsuit by all three Plaintiffs alleging—with specificity—that Defendants engaged in ultra vires 

activities, injuring both the Media Plaintiffs and the State of Texas. While the Media Plaintiffs also 

present important independent First Amendment freedom of speech and freedom of press claims, 

that fact alters neither the State of Texas’s claims nor its sovereign interest in this case.

Further, Defendants misrepresent the factual basis underlying Plaintiffs’ ultra vires claims 

by selectively quoting from the complaint, see ECF14 at 1-2, while ignoring the entirety of the 

State Department’s censorship scheme. See ECF1 at ¶¶ 45-180. To be clear, Plaintiffs’ complaint 

is not merely alleging that Defendants provided “cash prizes” to private actors to support the 

development of domestic censorship technologies, ECF14 at 1, even though the evidence shows 

that indeed happened. See e.g. ECF1 at ¶¶ 125-134, 142-147. Rather, Plaintiffs allege Defendants 

deliberately engaged in a comprehensive government scheme to suppress disfavored domestic 

speech and publications “by funding the infrastructure, development, and marketing and 

promotion of censorship technology and private censorship enterprises.” Id. at ¶ 1. The 69-page 

complaint details the breadth of Defendants’ past and continuing ultra vires actions—conduct that 

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 6 of 23 PageID #: 702
2

also violates the Media Plaintiffs’ First Amendment rights. See ECF1.

There are two additional errors in Defendants’ background section: First, while Defendants 

retired the “Disinfo Cloud” platform in 2022, and while the ultra vires funding awards Plaintiffs 

highlighted were made in 2020 and 2021, the complaint establishes that Defendants’ ultra vires

and unconstitutional conduct continues to this day. See ECF1 at ¶¶ 84, 160-163, 165, 167, 170-

180. And contrary to the State Department’s assertion that the complaint alleges the “continuing 

and ongoing” conduct in a “conclusory fashion,” ECF14 at 6, the complaint details how the Global 

Engagement Center continues to fund the unlawful domestic censorship scheme through many of 

the same initiatives. See ECF1 at ¶¶ 84, 160-163, 165, 167, 170-180.

Second, Defendants suggest Texas cannot establish an injury because some of the 

technologies and technology companies are “unspecified” or “unidentified.” ECF14 at 1. But

Plaintiffs need not fully identify the players in Defendants’ censorship scheme because, as

discussed below, even the limited open-source material currently available to Plaintiffs and cited 

in the complaint establishes that the State Department’s ultra vires conduct harms, within this 

district, Texas’s interest in, and ability to, ensure compliance with H.B. 20.

LEGAL STANDARD

Whether venue is proper against a federal government defendant is governed by 28 U.S.C. 

§ 1391(e)(1):

A civil action in which a defendant is an officer or employee of the United States or any 

agency thereof acting in his official capacity or under color of legal authority, or an agency 

of the United States, or the United States, may, except as otherwise provided by law, be 

brought in any judicial district in which (A) a defendant in the action resides, (B) a 

substantial part of the events or omissions giving rise to the claim occurred, or a substantial 

part of property that is the subject of the action is situated, or (C) the plaintiff resides if no 

real property is involved in the action.

Id. (emphasis added). 

“When no special, restrictive venue statute applies, the general venue statute, 28 U.S.C. 

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 7 of 23 PageID #: 703
3

§ 1391, controls a plaintiff’s choice of venue.” In re Volkswagen of Am., Inc. (“Volkswagen II”), 

545 F.3d 304, 312 (5th Cir. 2008). If a case is filed in the wrong division, a district court “shall 

dismiss, or if it be in the interest of justice, transfer such case to any district or division in which 

it could have been brought.” 28 U.S.C. § 1406(a).

1

 As shown below, venue is proper here.

ARGUMENT

I. TEXAS HAS STANDING TO BRING THE CASE.

Texas has standing to bring this case based on its interest in enforcing its sovereign laws.2

The Fifth Circuit has held that “States have a sovereign interest in ‘the power to enforce and create 

a legal code.’ Pursuant to that interest, states may have standing based on (1) federal assertions of 

authority to regulate matters they believe they control; (2) federal preemption of state law; and 

(3) federal interference with the enforcement of state law, at least where the state statute at issue 

regulates behavior or provides for the administration of a state program . . . .” Texas v. United 

States (DAPA), 809 F.3d 134, 153 (5th Cir. 2015) (cleaned up); cf. Planned Parenthood v. Abbott, 

734 F.3d 406, 419 (5th Cir. 2013) (“When a statute is enjoined, the State necessarily suffers the 

irreparable harm of denying the public interest in the enforcement of its laws.”). 

1 When venue is proper, a defendant may also move to transfer venue to a more convenient forum pursuant to 28 

U.S.C. § 1404(a). Transfer pursuant to § 1404(a), however, is only appropriate if defendants establish “good cause” 

by “clearly demonstrat[ing] that a transfer is ‘[f]or the convenience of parties and witnesses, in the interest of justice.’” 

Volkswagen II, 545 F.3d at 315. Because Defendants have not moved to transfer pursuant to § 1404(a), this Response 

does not address the “good cause” standard. 2 Defendants do not challenge the Media Plaintiffs’ standing. See generally ECF14. It bears noting here that one 

plaintiff with standing “is sufficient to satisfy Article III’s case-or-controversy requirement.” DAPA, 809 F.3d 134,

151 (5th Cir. 2015). Thus, if the Media Plaintiffs have standing, then Texas also has standing. Nonetheless, Plaintiffs 

address Texas’s standing to demonstrate that Texas provides a basis for venue. It also merits mention that venue and 

standing are two distinct concepts. Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168 (1939), and that 

“venue [is] determined at the outset of litigation and [is] not affected by subsequent events.” Smilde v. Snow, 73 F. 

App’x 24, 26 (5th Cir. 2003). Further, this Court’s “authority for determining venue, Section 1391(e), makes no 

mention of standing,” so “arguments as to standing are not probative on the venue issue.” Seariver Maritime Fin. 

Holdings, Inc. v. Pena, 952 F. Supp. 455, 460 (S.D. Tex. 1996). In fact, the only situation in which standing is relevant 

at the venue-deciding stage is in a case where a plaintiff was “improperly and collusively joined for the purpose of 

creating venue in the district” or where the defendant asserts “a plaintiff with a frivolous claim” was joined to create 

venue. Wright & Miller, 14D FED. PRAC. & PROC. JURIS. §3815 (4th ed. 2022). The Defendants do not argue that 

either exception applies in this case—which they could not do on these facts—and, instead, present a detailed—albeit 

failed—attack on Texas’s standing. See infra at 3-7.

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 8 of 23 PageID #: 704
4

In this case, Defendants’ censorship scheme interferes with Texas’s enforcement of H.B.

20, a statute that codifies the State’s “fundamental interest in protecting the free exchange of ideas 

and information in this state.” H.B. 20, 87th Leg. (Tex. 2021) § 1(2). Defendants’ censorship 

scheme undermines Texas’s interest in enforcing this law, which requires social media companies 

with market power to act as common carriers. See Tex. Bus. & Com. Code Ann. §§ 120.001 et 

seq.; ECF1 at ¶ 6. Texas has standing where the State Department’s actions have both regulated 

(at least implicitly) matters Texas believes it controls and, in the process, federally preempted the 

state law codified at H.B. 20. See ECF1 at ¶ 237.

Texas’s interest in enforcing H.B. 20 is not lessened for standing purposes by the legal 

challenge pending before the United States Supreme Court. See NetChoice, LLC v. Paxton, 144 S. 

Ct. 477 (Mem.) (Sept. 29, 2023) (granting certiorari in part). First, a duly enacted state statute is 

entitled to a “strong presumption of validity.” See, e.g., Dobbs v. Jackson Women’s Health Org., 

597 U.S. 215, 301 (2022). Thus, Defendants are incorrect to suggest that Texas’s standing “rest[s]

on pure speculation concerning the Supreme Court’s forthcoming ruling.” ECF14 at 6. Rather, this 

Court must presume the validity of H.B. 20 until proven otherwise.

Second, parts of H.B. 20 remain law, regardless of the Supreme Court’s decision. Although

Defendants point out that enforcement of H.B. 20 is currently enjoined, ECF14 at 8, the story is 

more complicated. After the Fifth Circuit overturned the district court’s ruling enjoining the 

enforcement of H.B. 20, see NetChoice, L.L.C. v. Paxton, 49 F.4th 439 (5th Cir. 2022), the parties 

agreed to a stay of the Fifth Circuit’s mandate pending review by the Supreme Court.3 The grant 

of certiorari, however, was more limited than the Fifth Circuit’s mandate, and covered only the 

3 See Appellees’ Unopposed Motion to Stay the Mandate Pending Petition for Writ of Certiorari, NetChoice, L.L.C. v. 

Paxton, No. 21-51178 (5th Cir. Sept. 29. 2022), available at https://netchoice.org/wpcontent/uploads/2022/09/NetChoice-CCIA-Unopposed-Motion-to-Stay-Mandate_Sep292022_Filed-1.pdf.

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 9 of 23 PageID #: 705
5

narrow questions raised in the Solicitor General’s amicus brief. NetChoice, L.L.C. v. Paxton, 144 

S. Ct. 477 (Mem) (Sept. 29, 2023).

4 Therefore, any part of H.B. 20 upheld by the Fifth Circuit but 

not part of the grant of certiorari remains enforceable, regardless of the Supreme Court’s decision. 

It follows, then, that Texas maintains, at minimum, an interest in enforcing the sections of H.B. 20 

the Fifth Circuit upheld which are not implicated in the Supreme Court’s appellate review.

H.B. 20’s transparency requirements, for example, remain in force regardless of the 

Supreme Court’s decision. See H.B. 20 at § 120.053. H.B. 20 requires covered social media 

platforms to report biannually on the instances in which content was removed, deprioritized, or 

demonetized. See id. Such a policy protects Texans from unseen censorship schemes, such as the 

one challenged here, by informing consumers not only about the number of times the platform 

acted against illegal or policy-violating content, but also the source of the alert. See id. Specifically, 

the social media platforms must disclose if the alert came from “a government” or “an internal 

automated detection tool.” H.B. 20, § 120.053(b)(2)(A), (C). The State Department’s illegal and 

ultra vires censorship scheme interferes with Texas’s consumer protection statute and, thus,

Texas’s sovereign interest in enforcing its laws. Therefore, Texas has standing.

Texas can also show traceability and redressability. Defendants assert that Texas has not 

shown that “(1) Texas was to take an enforcement action against a social media company and (2) 

Defendants were to obstruct that enforcement action.” ECF14 at 8-9. But this is not the standard.

While there must be “a causal connection between the plaintiff’s injury and the defendant’s 

challenged conduct, [traceability] doesn’t require a showing of proximate cause or that ‘the 

4 The Solicitor General’s brief presented two questions: “1. Whether the laws’ content-moderation restrictions comply 

with the First Amendment;” and “2. Whether the laws’ individualized-explanation requirements comply with the First 

Amendment.” Br. of the United States as Amicus Curiae in Support of Respondents in No. 22-277 and No. 22-555, 

NetChoice, 2023 WL 8600432, at *i (Dec. 7, 2023).

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 10 of 23 PageID #: 706
6

defendant’s actions are the very last step in the chain of causation.’” Inclusive Cmtys. Proj., Inc. 

v. Dep’t of Treasury, 946 F.3d 649, 655 (5th Cir. 2019) (quoting Bennett v. Spear, 520 U.S. 154, 

169 (1997)). Rather, a plaintiff can satisfy traceability by showing that the challenged action 

“produce[s] a ‘determinative or coercive effect upon the action of someone else,’ resulting in 

injury.” Id. (quoting Bennett, 520 U.S. at 169). In addition, courts find that the injury is traceable 

to the challenged act when standing “does not rest on mere speculation about the decisions of third 

parties” but instead “on the predictable effect of [g]overnment action on the decisions of third 

parties.” Dep’t of Com. v. New York, 139 S. Ct. 2551, 2566 (2019).

Such is the case here. Texas challenges Defendants’ ultra vires actions in funding a 

domestic censorship scheme—the known and unlawful breadth and scope of which is detailed in 

the 69-page complaint. Specifically, Texas alleges Defendants’ ultra vires censorship scheme 

interferes with the functioning of H.B. 20 “by funding the infrastructure, development, and 

marketing and promotion of censorship technology and private censorship enterprises,” which, at 

a minimum, violate H.B. 20’s transparency requirements that remain good law. ECF1 at ¶234. At 

a maximum, the over 360 domestic blacklisting and other censorship technologies funded, 

developed, and still promoted by the GEC with State Department funds and State-Departmentfunded resources limit the reach of media outlets on various platforms, in violation of H.B. 20. See 

ECF1 at ¶235. At this stage of the litigation, which tools and technologies discriminate against 

Texans’ speech on technology platforms deemed common carriers under H.B. 20 is not fully 

known; discovery will likely reveal additional injuries to Texas’s sovereign interests. But at this 

point, the allegations, taken as true, establish that the State Department’s ultra vires activities

interfere in Texas’s enforcement of H.B. 20’s transparency provisions, and more broadly H.B. 20’s 

mandates against discrimination by common carriers. The harm caused here by the actions of 

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 11 of 23 PageID #: 707
7

social media companies is a “predictable effect of [g]overnment action on the decisions of third 

parties.” Dep’t of Com. v. New York, 139 S. Ct. at 2566. Thus, Defendants’ actions harm Texas’s

sovereign interest, and Texas has established traceability.

5

Texas can also show redressability. Redressability requires a plaintiff to show that a 

favorable decision “is likely, as opposed to merely speculative,” to redress its injury. Inclusive 

Cmtys. Proj., 946 F.3d at 655 (emphasis in original) (quoting Friends of the Earth, Inc. v. Laidlaw 

Env’t Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)). A plaintiff demonstrates redressability if “the 

desired relief would lessen” the injury—a “complete[] cure” is unnecessary. Id. Here, an injunction 

would put an end to Defendants’ ultra vires actions and therefore redress the harm to Texas’s 

sovereign interests in enforcing H.B. 20’s transparency mandate.

Accepting Plaintiffs’ well-pleaded allegations as true, as this Court must, Texas has shown 

(1) Defendants’ actions interfere with Texas’s sovereign interest in enforcing H.B. 20; (2) that 

sovereign interest encompasses preventing Defendants from aiding common carriers in violating 

H.B. 20 and the interests that statute protects; and (3) an injunction against Defendants’ actions 

would redress that injury. Thus, Texas has standing to sue, and venue is appropriate in Texas.

II. TEXAS CAN BRING SUIT IN ANY DISTRICT WITHIN ITS BORDERS

Defendants assert that Texas does not “reside” for venue purposes in the Eastern District 

of Texas. They base this argument on 28 U.S.C. § 1391(c)(2), which states: “For all venue purposes 

... an entity with the capacity to sue and be sued in its common name under applicable law, whether 

or not incorporated, shall be deemed to reside ... if a plaintiff, only in the judicial district in which 

it maintains its principal place of business.” ECF14 at 10 (citing id.). For support, Defendants cite 

5 In arguing Texas lacks standing, Defendants do not dispute that it acted beyond its statutory authority to administer 

“foreign affairs.” The State Department also does not deny that its Global Engagement Center used funds appropriated 

or otherwise made available to it for “purposes other than countering foreign propaganda and misinformation that 

threatens United States national security,” in clear violation of Congress’ annual appropriation.

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 12 of 23 PageID #: 708
8

cases from courts outside of Texas and the Fifth Circuit. 

The Fifth Circuit and its district courts, however, have consistently held that Texas may 

bring suit in any court within its borders. Nearly 130 years ago, the Fifth Circuit stated—as though 

it were already axiomatic—that a state government “resides at every point within the boundaries 

of the state[.]” Atlanta & F.R. Co. v. W. Ry. Co. of Ala., 50 F. 790, 791 (5th Cir. 1982). See also 

California v. Azar, 911 F.3d 558, 570 (9th Cir. 2018) (“A state is ubiquitous throughout its 

sovereign borders.”). Since then, courts have consistently relied on this proposition when 

adjudicating venue questions involving State plaintiffs. See, e.g., Texas v. Mayorkas, No. 6:23-

CV-00001, 2023 WL 5616184, at *2 (S.D. Tex. Aug. 29, 2023) (“The Court remains steadfast in 

its interpretation of Section 1391 and the conclusion that a state is a resident at every point within 

its borders.”); Utah v. Walsh, No. 2:23-CV-016-Z, 2023 WL 2663256, at *3 (N.D. Tex. March 28, 

2023) (same); Texas v. Garland, No. 5:23-CV-034-H, 2023 WL 4851893, at *3 (N.D. Tex. July 

28, 2023); Texas v. Dep’t of Homeland Sec., 661 F. Supp. 3d 683 (S.D. Tex. 2023) (“Texas resides 

at every point within the boundaries of this State[.]”); Florida v. United States, No. 3:21-CV-1066-

TKW-EMT, 2022 WL 2431443, at *2 (N.D. Fl. Jan. 18, 2022) (same); Alabama v. Army Corps of 

Eng’rs, 382 F. Supp. 2d 1301, 1328-29 (N.D. Ala. 2005) (“[C]ommon sense dictates that a state

resides throughout its sovereign borders[.]”);Wright & Miller, 14D FED. PRAC. & PROC. JURIS. § 

3815 (4th ed. 2022) (“A state is held to reside in any district within it.”). 

“Any other interpretation limiting residency to a single district in the state would defy 

common sense.” California v. Azar, 911 F.3d at 570. Thus, in Texas v. Dep’t of Homeland Sec., 

the Southern District of Texas rejected the Federal Defendants’ attempt to transfer a case based on 

nearly identical grounds. See 661 F. Supp. 3d 683 (S.D. Tex. 2023). There, Federal Defendants 

argued—as here—that the State of Texas did not reside in the Victoria Division in the Southern 

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 13 of 23 PageID #: 709
9

District, but only in Austin, where it has its principal place of business. Id. at 688-89. The Court 

found persuasive the State’s argument that a State is not an “entity” under Section 1391(c)(2) and 

found, “consistent with what the Fifth Circuit and every other federal court to have addressed 

the issue have held, Texas resides at every point within the boundaries of this State, including the 

Victoria Division.” Id. at 689 (emphasis added).

The Northern District of Texas reached the same conclusion in Texas v. Garland—that 

Texas “resides in every district of that state.” 2023 WL 4851893, at *3. In its analysis, that court 

conclusively rejected Defendants’ argument—raised again here—that 28 U.S.C. § 1391(c)(2) 

restricts a sovereign state to its capital for venue purposes, holding that “[b]y its plain terms, 

Section 1391(c)(2) refers to corporations and unincorporated associations—not sovereign states.”

Id. Accordingly, the court in that case, “join[ed] every other court to consider the issue by finding 

that a state resides, for venue purposes, in every district within its borders.” Id. at *6. In short,

Texas has venue in the Eastern District of Texas according to every applicable precedent.6

III. THE “SUBSTANTIAL EVENTS” TEST IS IRRELEVANT TO THE VENUE ANALYSIS FOR 

TEXAS’S CLAIMS, AND THE MEDIA PLAINTIFFS’ CLAIMS HAVE PENDENT VENUE.

Where 28 U.S.C. § 1391(e)(1)(C) applies—as here—there is no requirement for a state 

plaintiff that a “substantial part of the events or omissions giving rise to its claims occurred” in the 

district. Texas v. Dep’t of Homeland Sec., 661 F. Supp. 3d at 688 (quoting 28 U.S.C. § 1391(e)). 

If this Court finds that Texas has standing, Texas’s claims are proper in any venue within its 

borders, and this Court need not reach the “substantial part of the events” question.

If Texas’s claims are properly venued, then the other Plaintiffs’ claims are also properly 

venued based on the doctrine of pendent venue. “Pendent venue allows a court to hear a claim that 

6 Venue is independently proper in this District because a substantial part of the events or omissions giving rise to

Texas’s claims occurred here because Texas has a sovereign interest in enforcing H.B. 20 in this district.

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 14 of 23 PageID #: 710
10

would otherwise not have proper venue, provided it is joined in a suit with a claim that is properly 

venued, and that the claims arise out of a common nucleus of operative facts.” Wright & Miller,

14D FED. PRAC. & PROC. JURIS. § 3808 n.27 (4th ed. 2022) (quoting Atcom Support LP v. Maria, 

No. 15-28, 2016 WL 4118914, at *6 (D. Del. Aug. 1, 2016)); see also Nabong v. Paddayuman, 

289 F. Supp. 3d 131, 136-37 (D.D.C. 2018) (noting that considerations of judicial economy and 

convenience weighed in favor of asserting pendent venue). 

Alternatively, if the Court concludes that Texas lacks standing, this case may still proceed 

in this district based on Media Plaintiffs’ standing because only one Plaintiff needs standing for 

all to proceed. DAPA, 809 F.3d 134, 151 (5th Cir. 2015) (“One party with standing is sufficient to 

satisfy Article III’s case-or-controversy requirement.”). Defendants have not challenged the Media 

Plaintiffs’ standing here, nor could they. Accordingly, Texas’s claims may move forward based 

on the Media Plaintiffs’ standing.

IV. THIS COURT HAS VENUE BECAUSE A “SUBSTANTIAL PART OF THE EVENTS” INJURED 

THE MEDIA PLAINTIFFS IN THIS DISTRICT.

Venue is independently proper in this district because “a substantial part of the events or

omissions giving rise” to The Daily Wire and The Federalist’s claims occurred here. See 28 U.S.C.

§§ 1391(b)(2); (e). As Texas district courts have made clear, under this standard, venue is proper 

where unlawful conduct “imposes its burdens.” See e.g., Career Colleges & Schools of Texas v.

Dep’t of Educ., No. 4:23-CV-0206-P, 2023 WL 2975164 (N.D. Tex. Apr. 17, 2023) (Pittman, J.);

Umphress v. Hall, 479 F. Supp. 3d 344, 351-52 (N.D. Tex. 2020) (Pittman, J); Texas v. United

States, 95 F. Supp. 3d 965, 973 (N.D. Tex. 2015) (O’Connor, J.), rev’d on other grounds by No.

15-cv-00056-O, 2015 WL 13424776 (N.D. Tex. Jun. 26, 2015); see also Myers v. Bennett L. Offs.,

238 F.3d 1068, 1076 (9th Cir. 2001).

Plaintiffs need only show that their chosen venue is a proper venue. And “[a]ccording to 

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 15 of 23 PageID #: 711
11

the Fifth Circuit, ‘the chosen venue does not have to be the place where the most relevant events 

took place,’ but only where a ‘substantial part of the events or omissions occurred.’” Zurich Am. 

Ins. Co. v. Tejas Concrete & Mins., Inc., 982 F. Supp. 2d 714, 722 (N.D. Tex. 2013) (quoting 

McClintock v. Sch. Bd. E. Feliciana Par., 299 Fed. App’x 363, 365 (5th Cir. 2008)). “The 

‘substantial part of the events or omissions test does not require that the chosen venue be the best 

venue ... the selected district must simply have a substantial connection to the claim.’” Id. at 722-

23 (quoting VP, LLC v. Newmar Corp., No. 11-2813, 2012 WL 6201828, at *9 (E.D. La. Dec. 12, 

2012)) (internal quotation marks omitted) (emphasis added); see also Globe Glass & Mirror Co. 

v. Brown, 888 F. Supp. 768, 770 (E.D. La. 1995) (quoting Wright & Miller, FED. PRAC. & PROC.: 

CIVIL 2d § 3806 (1994 supp.)) (stating that “there can be more than one district in which a 

substantial part of the events giving rise to the claim occurred”).

Further, in determining venue, the Court may consider “the location of the effects of the 

alleged conduct, which can include a consideration of a plaintiff’s activities.” See Umphress v. 

Hall, 479 F. Supp. 3d 344, 352 (N.D. Tex. 2020). At this stage, the Media Plaintiffs also “need not 

exhaustively prove venue is appropriate but only need[] to make a prima facie showing.” Career

Colleges, 2023 WL 2975164 at *1; see also Luv N’ Care, Ltd. v. Insta-Mix, Inc., 438 F.3d 465, 

469 (5th Cir. 2006) (applying this standard for personal jurisdiction). Additionally, “a court should 

... accept undisputed facts in a plaintiff’s pleadings as true and resolve factual conflicts in the 

plaintiff’s favor.” Int’l Cotton Mktg., Inc. v. Commodity Credit Corp., No. 5:08-CV-159-C, 2009 

WL 107052345, at *2 (N.D. Tex. Feb. 4, 2009) (Cummings, J.).

Applying those standards establishes the propriety of venue over the Media Plaintiffs’

claims. As the complaint details, Defendants’ censorship scheme reduces the Media Plaintiffs’

“reach, readership, and circulation of their reporting and speech” due to Defendants’

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 16 of 23 PageID #: 712
12

unconstitutional and ultra vires conduct. ECF1 at ¶¶ 280-81. A substantial part of the harm to

Media Plaintiffs falls within this district (and division) because “Media Plaintiffs rely heavily on

social media outlets, web browsers, internet search tools, and other computer technology to

distribute their content,” id. at ¶ 44, including throughout Texas and in this district, with hundreds

of The Daily Wire subscribers residing in Tyler, Texas alone. Exh. 7, Herr Decl. at ¶3. At a

minimum, at least two censorship technologies funded, tested, marketed, and promoted by

Defendants—NewsGuard and GDI’s blacklists—target Media Plaintiffs “thereby reducing their

circulation, readership, and reach, and otherwise negatively impacting their operations,” ECF1 at

¶ 123, in this district and division.

Contrary to Defendants’ claim, this case is not about “policy” decisions made by the State 

Department in DC: Nothing at issue in this lawsuit pertains to foreign policy decisions made by 

the State Department pursuant to its lawful mandate. When Defendants misappropriate funds and 

allocate their enormous resources to blacklisting domestic news media, it should come as no 

surprise that proper venue lies where its ultra vires conduct had its unlawful domestic effects.

Significantly, the nature of Defendants’ ultra vires and unconstitutional censorship scheme

is such that the locus of the intended harm is where the Media Plaintiffs’ audience resides and not

in Washington, DC. The various tools and technologies funded, developed, tested, promoted, and

marketed by Defendants operate to keep social media and web browser users—including those in

this district (and division)—from accessing the Media Plaintiffs’ reporting locally. For instance,

when Media Plaintiffs recently reported on Pope Francis’s removal of Bishop Joseph Strickland

from the Diocese of Tyler, Texas,7 the blacklisting and reduced circulation caused by Defendants’

7 See Exh. 1, Bree Dail, “The Decision Was Made’: Texas Bishop Fired by Pope Says He Declined to Resign,

Wasn’t Given Reason for Dismissal, The Daily Wire (Nov. 14, 2023); Exh. 2, Carina Benton, The Vatican Continues 

to Please the Rainbow Mafia While Mercilessly Attacking the Orthodox, the Faithful, and the Traditional, (Nov. 18, 

2023).

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 17 of 23 PageID #: 713
13

censorship scheme injured the Media Plaintiffs in this division where their audience resides. That

Defendants launched their censorship scheme in part from Washington, DC does not alter that

conclusion. See Diesel Power Source, LLC v. Crazy Carl’s Turbos, Inc., No. 2:14–cv–00826–DN,

2015 WL 1034231 at *10 (D. Utah Mar. 10, 2015) (holding “acts that are physically performed on 

the Internet can ‘occur’ in the forum state in order to establish proper venue”).

Defendants may complain that the ubiquitous nature of the internet might render it subject

to venue throughout the U.S. This Court need not decide whether venue in internet cases would be

universal because there are additional independent connections to this district. First, beyond the

nationwide impact of Defendants’ censorship scheme, the State Department’s ultra vires and

unconstitutional conduct uniquely harmed the Media Plaintiffsin Texas. According to GDI’s CEO,

the State Department’s funding of GDI, through the U.S.-Paris Tech Challenge, strengthened its

“infrastructure.” ECF1 at ¶ 130-31. Following that State Department award, GDI partnered with

the Global Disinformation Lab (GDIL) at the University of Texas, hiring students in Texas to 

apply GDI’s methodology to rate the various media outlets and write “a separate report that

designated the supposed top ten ‘riskiest’ American online news outlets.” Id. at ¶ 115. The

December 2022 report, entitled “Disinformation Risk Assessment: The Online News Market in

the United States,” “targeted Media Plaintiffs, rating them in the top ten of the supposedly ‘riskiest’

outlets.”8 Id. at ¶ 116; id. at n.80. Significantly, that report was researched, written, and published

in Texas, and distributed throughout the State via the Texas-based webpage of the University of

Texas, including in this district (and division). See id.

Further, GDI operates in Texas through its American partner, Danny Rogers and

8 See Exh. 3 (excerpt of top ten “riskiest” and “least risky” American outlets from Brief: Disinformation Risk in the 

United States Online Media Market, October 2022, GDI).

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 18 of 23 PageID #: 714
14

Disinformation Index Inc., which is both incorporated and headquartered in Texas.9 In fact, GDI’s

contract with the University of Texas identified Disinformation Index, Inc., with a San Antonio,

address, as GDI’s representative.10 It is reasonable to infer that the GEC grant helped strengthen

GDI’s infrastructure in both England and Texas. GDI’s operations in Texas thus provide a further

basis to conclude that “a substantial part of the events or omissions” occurred here.

Second, Plaintiff The Daily Wire is a Texas limited liability company, Id. at ¶ 11, with a

registered address and registered agent in Texas. Exh. 7, Herr Decl. at ¶ 5. Further, two employees

provide services to The Daily Wire in Texas, and hundreds of subscribers reside in Tyler, Texas

alone with more subscribers in the district. Id. at ¶¶ 3, 4. As such, The Daily Wire, LLC has a

presence here and “a substantial part of the events and omissions” inflict harm on The Daily Wire

in this district. When added to the harm inflicted by Defendants’ ultra vires and unconstitutional

censorship scheme occurring in this district (and division) through reduced circulation, venue is

clearly appropriate here. Accordingly, venue is proper over the Media Plaintiffs’ claims under 28

U.S.C. § 1391’s “substantial part of the events” standard.11

V. THE “INTERESTS OF JUSTICE” DO NOT ALLOW FOR TRANSFER OF VENUE BECAUSE 

VENUE IS PROPER IN THE EASTERN DISTRICT OF TEXAS.

Finally, Defendants argue that this Court should transfer venue to the D.C. District Court 

“in the interest of justice” under 28 U.S.C. § 1406(a). ECF14 at 14. However, this Court may only 

reach the question of transfer “in the interest of justice” if venue is improper. Texas v. Dep’t of 

9 See Exh. 4, Gabe Kaminsky, “Disinformation” Tracker Paid State Funded University $90,000 for Conservative 

Blacklist Report, The Washington Examiner (Jun. 1, 2023); Exh. 5 Disinformation Index Inc., Tax Exempt

Organization Search Details, Internal Revenue Service; Exh. 6 Disinformation Index Inc., Full Filing - Nonprofit

Explorer, ProPublica. 10 See Exh. 4, supra at 14 n.9. 11 While the Media Plaintiffs maintain there is an independent basis for venue over their claims, if this Court agrees 

that Texas has standing, it need not consider whether an independent basis of venue exists for The Daily Wire and

The Federalist’s claims because there would be pendent venue over the First Amendment claims. See Halcyon Biomed 

v. Glatt Air Tech., No. H-19-690, 2019 WL 2420232 at *8 (S.D. Tex. June 10, 2019) (explaining that pendent venue 

allows a court to hear claims arising out of a common nucleus of operative facts).

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 19 of 23 PageID #: 715
15

Homeland Sec., 661 F. Supp. 3d at 689. Because venue is proper in this district for the aforesaid 

reasons, this Court need not reach the question of transfer “in the interest of justice.” Id. at 690.

Should this Court instead reject both Texas and the Media Plaintiffs’ bases of venue, this 

case should be dismissed without prejudice. While Plaintiffs do not contest Defendants’ assertion 

that the case could have originally been brought in the D.C. District Court, Fifth Circuit precedent 

holds that “[w]here venue is improper, the district court should generally dismiss the case.” Seville 

v. Maersk Line, 53 F.4th 890, 894 (5th Cir. 2022). Further, while a court retains discretion to 

instead transfer a case “in the interest of justice,” id., Defendants do not explain why transfer would 

be more “in the interest of justice” than dismissal. See ECF14 at 14-15. Instead, Defendants posit 

that venue is more appropriate in D.C. because Defendants and witnesses reside there and because 

that is “where principal funding decisions challenged in the complaint were made.” Id. But those 

rationales neither speak to the “interest of justice,” nor account for the weight and deference 

afforded a plaintiff’s choice of forum. In re Clarke, No. 24-50079, 2024 WL 886953, at *9 n.24

(5th Cir. Mar. 1. 2024). Transfer also cannot be squared with the legal principle that a plaintiff is 

entitled to his choice of venue if otherwise proper, Volkswagen II, 545 F.3d at 315. Further, 

transferring this case to D.C. would defeat the Congressional purpose behind the amendment to 

§ 1391(e) for official capacity suits, namely, to ensure Americans are not forced to travel to 

Washington, DC to sue federal officials. See Stafford v. Briggs, 444 U.S. 527, 542-544 (1980)

(Congress was incensed that Americans would have to sue in D.C. to hold officials accountable 

for their acts.) The Court need not decide that question as venue is proper in the Eastern District 

of Texas.

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Transfer Venue should be DENIED.

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 20 of 23 PageID #: 716
16

DATED: March 14, 2024 Respectfully submitted,

/s/ Margaret A. Little

Margaret A. Little

Lead Attorney

Senior Litigation Counsel

Connecticut Bar # 303494 

NEW CIVIL LIBERTIES ALLIANCE 

1225 19th Street NW, Suite 450 

Washington, DC 20036 

Telephone: (202) 869-5210

Facsimile: (202) 869-5238

Peggy.Little@ncla.legal

/s/ Margot J. Cleveland 

Margot J. Cleveland,

Of Counsel

Michigan Bar #P83564

NEW CIVIL LIBERTIES ALLIANCE

Margot.Cleveland@ncla.legal

/s/ Casey Norman

Casey Norman

Pro hac vice pending

Litigation Counsel

New York Bar #5772199

NEW CIVIL LIBERTIES ALLIANCE

Casey.Norman@ncla.legal

Attorneys for Plaintiffs The Daily Wire 

Entertainment LLC and FDRLST Media LLC

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney General of Texas

GRANT DORFMAN

Deputy First Assistant Attorney General of 

Texas

RALPH MOLINA

Deputy Attorney General for Legal Strategy

RYAN D. WALTERS

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 21 of 23 PageID #: 717
17

Chief, Special Litigation Division

/s/ Susanna Dokupil

SUSANNA DOKUPIL

Lead Attorney 

Special Counsel

Texas State Bar No. 24034419

AMY S. HILTON

Special Counsel

Texas State Bar No. 24097834

JOHNATHAN STONE

Special Counsel

Texas State Bar No. 24071779

Attorneys for Plaintiff the State of Texas

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 22 of 23 PageID #: 718
18

CERTIFICATE OF SERVICE

I hereby certify that, on March 14, 2024, I caused a true and correct copy of the foregoing 

to be filed by the Court’s electronic filing system, to be served by operation of the Court’s 

electronic filing system on counsel for all parties who have entered in the case.

/s/ Margot J. Cleveland

 Margot J. Cleveland

Case 6:23-cv-00609-JDK Document 25 Filed 03/14/24 Page 23 of 23 PageID #: 719