i 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION 

THE DAILY WIRE, LLC et al., 

 Plaintiffs 

v. 

UNITED STATES DEPARTMENT 

OF STATE et al., 

 Defendants. 

 Civil Action No. 6:23-cv-00609 (JDK) 

DEFENDANTS’ RULE 12(h)(3) MOTION TO DISMISS OR, ALTERNATIVELY, 

MOTION TO RECONSIDER MEMORANDUM OPINION AND ORDER 

GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS 

AND MOTION TO TRANSFER (DKT # 53)

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TABLE OF CONTENTS 

INTRODUCTION ........................................................................................................................................... 1

ISSUE STATEMENT ...................................................................................................................................... 3

BACKGROUND .............................................................................................................................................. 3

I. Plaintiffs’ Theories of Standing ............................................................................................ 3

A. Texas ........................................................................................................................... 4

B. Media Plaintiffs .......................................................................................................... 4

II. This Court’s Prior Ruling on Defendants’ Rule 12(b)(1) Motion to Dismiss ............... 6

III. The Supreme Court’s Decision in Missouri ......................................................................... 7

LEGAL STANDARD .................................................................................................................................... 10

ARGUMENT ................................................................................................................................................... 11

I. Under Missouri, Plaintiffs have failed to plausibly allege Article III standing. ............. 11

A. Under Missouri, Plaintiffs’ alleged injuries are not traceable to Defendants. .. 13

1. Texas has not plausibly alleged a causal connection between 

Defendants’ alleged conduct and any platform’s actions allegedly 

violating HB 20. ................................................................................................ 13

2. Media Plaintiffs have not plausibly alleged a causal connection 

between Defendants’ actions and injury to themselves. ............................. 19

B. Under Missouri, Plaintiffs have not plausibly alleged ongoing or future 

 injury-in-fact. .......................................................................................................... 24

C. Under Missouri, Plaintiffs’ injuries are not redressable by their requested 

relief ......................................................................................................................... 27

CONCLUSION ............................................................................................................................................... 28

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TABLE OF AUTHORITIES 

CASES

Alabama-Coushatta Tribe of Tex. v. United States, 

757 F.3d 484 (5th Cir. 2014) ...................................................................................................................... 10 

Arbaugh v. Y&H Corp., 

546 U.S. 500 (2006) ..................................................................................................................................... 10 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) ..................................................................................................................................... 12 

Austin v. Kroger Texas, L.P., 

864 F.3d 326 (5th Cir. 2017) ...................................................................................................................... 10 

Clapper v. Amnesty Int’l USA, 

568 U.S. 398 (2013) .............................................................................................................................. 11, 12 

DaimlerChrysler Corp. v. Cuno, 

547 U.S. 332 (2006) ..................................................................................................................................... 10 

FDA v. Alliance for Hippocratic Med.,

602 U.S. 367 (2024) .............................................................................................................................. 21, 23 

Lane v. Halliburton, 

529 F.3d 548 (5th Cir. 2008) ............................................................................................................... 10, 12 

Los Angeles v. Lyons, 

461 U.S. 95 (1983) ....................................................................................................................................... 13 

Lujan v. Defs. of Wildlife, 

504 U.S. 555 (1992) ................................................................................................................. 11, 14, 20, 26 

Massachusetts v. EPA, 

549 U.S. 497 (2007) ..................................................................................................................................... 14 

Mei Pang v. Levitt, 

2024 WL 2108842 (W.D. Tex. Apr. 22, 2024) ........................................................................................ 10 

Missouri v. Biden, 

83 F.4th 350 (5th Cir. 2023) ................................................................................................................. passim

Missouri v. Biden, 

680 F. Supp. 3d 630 (W.D. La. 2023) ......................................................................................................... 8 

Moody v. NetChoice, LLC, 

144 S. Ct. 2383 (2024) ............................................................................................................................ 4, 14 

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Murthy v. Missouri, 

144 S. Ct. 1972 (2024) ........................................................................................................................... passim

NetChoice, LLC v. Paxton, 

573 F. Supp. 3d 1092 (W.D. Tex. 2021) .................................................................................................... 4 

O’Shea v. Littleton, 

414 U.S. 488 (1974) ................................................................................................................................ 2, 13 

Raines v. Byrd, 

521 U.S. 811 (1997) ..................................................................................................................................... 11 

Ramming v. United States, 

281 F.3d 158 (5th Cir. 2001) ...................................................................................................................... 10 

Simon v. E. Ky. Welfare Rts. Org., 

426 U.S. 26 (1976) ....................................................................................................................................... 12 

Telephone & Data Sys., Inc. v. FCC, 

19 F.3d 42 (D.C. Cir. 1994) ........................................................................................................................ 18 

TransUnion LLC v. Ramirez, 

594 U.S. 413 (2021) .............................................................................................................................. 11, 19 

United States v. Abbott, 

2024 WL 3593683 (W.D. Tex. July 30, 2024) ......................................................................................... 10 

RULES

Federal Rule of Civil Procedure 12(h)(3)................................................................................................. 1, 10 

Federal Rule of Civil Procedure 54(b) ..................................................................................................... 1, 10 

OTHER AUTHORITIES

Statement on GARM, Global Alliance for Responsible Media, 

https://perma.cc/UU9C-ZR4Y ................................................................................................................. 4 

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INTRODUCTION 

 Pursuant to Federal Rule of Civil Procedure 12(h)(3), and in the alternative, Rule 54(b), 

Defendants move to dismiss the complaint for lack of subject-matter jurisdiction in light of the 

Supreme Court’s recent decision in Murthy v. Missouri, 144 S. Ct. 1972 (2024), reversing Missouri v. Biden, 

83 F.4th 350 (5th Cir. 2023), upon which this Court principally relied in rejecting Defendant’s initial 

motion to dismiss. 

 In Missouri, the plaintiffs, two States and five individuals, alleged that federal agencies had 

pressured social media platforms—through direct and regular communications—to suppress 

protected speech online. The plaintiffs sought only injunctive and declaratory relief. Evidence showed 

that “various federal officials regularly spoke with the platforms” about various topics, and that the 

social media platforms in fact “targeted speech” on those topics in a variety of ways. 144 S. Ct. at 

1982–84. But the Supreme Court held that the plaintiffs nonetheless lacked Article III standing, largely 

because their injuries derived from the independent actions of third parties—the social media 

platforms—and not from the federal government. Id. at 1985–86. The Supreme Court in Missouri

clarified that it was not enough for the plaintiffs to show that the government communicated with 

social media platforms about moderating content and that the social media platforms moderated such 

conduct; rather, the plaintiffs were required to “show a substantial risk that, in the near future, at least 

one platform will restrict the speech of at least one plaintiff in response to the actions of at least one 

Government defendant.” Id. at 1986. 

That required showing had several components. Primarily, Missouri held that the plaintiffs 

needed to show, on a plaintiff-by-plaintiff, defendant-by-defendant, and platform-by-platform basis, 

“specific causation,”—i.e., “that a particular defendant pressured a particular platform to censor a 

particular topic before that platform suppressed a particular plaintiff’s speech on that topic.” Id. at 1987–

88. Moreover, the Supreme Court emphasized that the necessary chains of causation “must be 

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evaluated in light of the platform’s independent incentives to moderate conduct.” Id. at 1988. And 

even this showing was not enough for injunctive relief; rather, the Supreme Court emphasized that 

each plaintiff was required to show “a real and immediate threat of repeated injury” for prospective 

relief. Id. at 1986 (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)). Past injury was not itself 

enough. Accordingly, the Court concluded that, “without proof of an ongoing pressure campaign,” it 

would be “entirely speculative that the platforms’ future moderation decisions [would] be attributable, 

even in part, to the defendants.” Id. at 1993. 

 The principles set forth by the Supreme Court in Missouri require dismissal of the complaint 

here. As this Court is aware, this case is brought by the State of Texas and two media outlets, The 

Daily Wire and Federalist Media (together, “Media Plaintiffs”), which allege that the State Department, 

through the Global Engagement Center (“GEC”), is funding, promoting, and marketing “tools” and 

“technologies” that are purportedly used by third-party social media platforms in ways that violate a 

Texas state law and by third-party social media platforms and other third-party companies in ways 

that suppress Media Plaintiffs’ protected speech and limit the distribution of their reporting. Plaintiffs 

do not allege that Defendants have taken any direct action against them. Defendants previously moved 

to dismiss the complaint for lack of standing, in part on the basis that Plaintiffs’ injuries (a) stem from 

the independent actions of third parties and are therefore neither traceable to Defendants nor 

redressable by an injunction targeted towards them, and (b) were wholly in the past and therefore 

insufficient to support prospective relief. This Court denied that motion in relevant part, concluding 

that the complaint sufficiently alleged facts supporting ongoing or future injury, traceability, and 

redressability based in large measure on the Fifth Circuit’s then binding, but now reversed, opinion in 

Missouri, and describing this case as “indistinguishable” from that one as to standing. See Memo. Op. 

& Order Granting in Part and Denying in Part Mot. to Dismiss & Mot. to Transfer at 19, ECF No. 

53 (“Op.”). 

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 Therefore, the complaint’s allegations, even if proven, would suffer from the same Article III 

problems that foreclosed the plaintiffs’ claims in Missouri. The complaint alleges that the GEC has 

communicated with social media platforms about disinformation technologies generally, and has 

promoted, marketed, or funded two companies that independently have created products that describe 

Media Plaintiffs in unfavorable terms. The complaint further alleges that social media companies and 

advertisers use those products in ways that interfere with a state law, and that Media Plaintiffs’ revenue 

and circulation have decreased as a result. But the complaint does not plausibly allege that the GEC 

has ever pressured any social media platform or other private company to “censor” speech about any 

particular topic or Media Plaintiffs’ speech, nor that any platform or private company has done so as 

a result of any such government pressure. Nor does the complaint allege facts establishing that an 

“ongoing pressure campaign” by Defendants was in place at the time the complaint was filed. Missouri, 

144 S. Ct. at 1993. In short, Plaintiffs have not alleged that their purported injuries are caused by the 

GEC under the standard articulated by the Supreme Court in Missouri, or redressable by any injunction 

aimed at the GEC. The complaint should be dismissed for lack of subject-matter jurisdiction. 

ISSUE STATEMENT 

Have Plaintiffs plausibly alleged Article III standing? 

BACKGROUND 

I. Plaintiffs’ Theories of Standing 

 This lawsuit alleges that the State Department, through the GEC, is “intervening in the newsmedia market to render disfavored press outlets unprofitable by funding the infrastructure, 

development, and marketing and promotion of censorship technology and private censorship 

enterprises to covertly suppress speech of a segment of the American press.” Compl. ¶ 1, ECF No. 1. 

The Court is already familiar with the allegations in Plaintiffs’ complaint. See Op. at 1–8. Accordingly, 

Defendants recount here only a summary of the allegations relevant to this motion, which pertain to 

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Plaintiffs’ asserted injuries for Article III standing purposes. 

A. Texas 

Texas alleges that Defendants, acting primarily through the GEC, have interfered with its 

sovereign interest in creating and enforcing its legal code. Compl. ¶¶ 5, 234–39. According to Texas, 

HB 20—“a Texas statute that regulates social media companies as common carriers and prohibits 

them from censoring speech and press on their platforms”—was to become effective on December 

2, 2021. Id. ¶¶ 234–35. At the time the complaint in this case was filed, and indeed at the time HB 20 

was scheduled to take effect, Texas was enjoined from enforcing the statute, see id. ¶ 234, and it remains 

enjoined from doing so today, see generally Moody v. NetChoice, LLC, 144 S. Ct. 2383 (2024) (vacating 

and remanding the Fifth Circuit’s decision which had reversed a decision by a district judge in the 

Western District of Texas on December 1, 2021, enjoining HB 20’s enforcement against the major 

social media platforms, NetChoice, LLC v. Paxton, 573 F. Supp. 3d 1092 (W.D. Tex. 2021)). Texas 

alleges that Defendants “interfere with Texas’s enforcement” of HB 20 by “induc[ing] social media 

companies to violate [it].” Id. ¶¶ 235, 237. For instance, Texas alleges that Defendants “marketed 

censorship technology to American companies, including the major social media companies,” id. ¶ 76, 

and one of the GEC’s employees held “a series of meetings with LinkedIn to discuss ‘countering 

disinformation,’ and set up similar meetings with other social media platforms,” id. ¶ 78. Texas alleges 

that this employee “offered the social media companies access to Disinfo Cloud,” id., a catalog of 

Countering Propaganda and Disinformation technologies, id. ¶ 65, and “encourag[ed the companies] 

to use it to identify[], understand[], and address[] misinformation,” id. ¶ 79 (citation omitted). See also 

Op. at 14 (finding that the complaint alleges that “Defendants, acting through GEC, are encouraging 

social media platforms to violate H.B. 20”). 

B. Media Plaintiffs 

 Media Plaintiffs claim that they have suffered past and ongoing injury because they have been 

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deemed “unreliable” or “risky” by third-party companies Global Disinformation Index, Ltd (“GDI”) 

and NewsGuard Technologies, Inc. See Compl. ¶ 4. Media Plaintiffs allege that Defendants funded 

and promoted GDI and NewsGuard. See id. ¶ 125 (“GEC appears to have first funded GDI in 2021 

through its U.S.-Paris Tech Challenge”); id. ¶¶ 142–44 (alleging that NewsGuard was a winner “of the 

COVID-19 misinformation and disinformation tech challenge” in spring and summer 2020 and 

received a $25,000 award). They claim that the Disinfo Cloud Twitter account displays two Twitter 

posts from 2021 “promoting GDI and NewsGuard” and that Defendants “continue[] to use” 

unspecified “research and reports” on Disinfo Cloud. Id. ¶¶ 87, 161–62. Media Plaintiffs also claim 

that these third parties “work with the World Federation of Advertisers ... and its subsidiary, Global 

Alliance for Responsible Media ... to steer blue-chip advertisers away from Media Plaintiffs.” Id. 

¶ 102.1

 Media Plaintiffs further allege that, “upon information and belief,” the GEC uses a “Silicon 

Valley Engagement initiative to domestically promote and market to the tech industry censorship 

technologies and censorship enterprises that silence, down-rank, de-amplify, deplatform, de-boost, 

demonetize, or denigrate segments of the American press and Americans’ speech, including Media 

Plaintiffs.” Id. ¶ 84. This is accomplished, Media Plaintiffs allege, through “sometimes quarterly” 

meetings between GEC’s senior leadership and social-media platforms, which “focus on the ‘tools 

and techniques’ of stopping the spread of disinformation on social media.” Id. ¶ 85. 

 Media Plaintiffs also allege, “upon information and belief,” that the GEC has ongoing 

programs that target their speech. They allege that the GEC “continues to host tech challenges ... to 

fund the development of censorship technology or censorship enterprises that target the American 

press and Americans’ speech.” Id. ¶ 170. They claim that the GEC operates a testbed program which 

1

 As of August 9, 2024, the Global Alliance for Responsible Media has discontinued its activities. 

Statement on GARM, Global Alliance for Responsible Media, https://perma.cc/UU9C-ZR4Y. 

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“continues to test and/or develop censorship technology that targets the American press and 

Americans’ speech,” id. ¶¶ 171–72, and “maintains a platform” of such technologies, id. ¶ 173. And 

they claim that the GEC maintains a “Silicon Valley location” which “continues to promote and 

market censorship tools and technology that target segments of the American press and Americans’ 

speech to the tech industry, the private sector, and academia.” Id. ¶ 175. See also Op. at 23–24 (finding 

that the complaint alleges “ongoing conduct by Defendants that presently violates [Media Plaintiffs’] 

First Amendment rights”). 

II. This Court’s Prior Ruling on Defendants’ Rule 12(b)(1) Motion to Dismiss 

Defendants previously moved to dismiss the complaint largely under Rule 12(b)(1) for lack of 

subject-matter jurisdiction, arguing that Plaintiffs lack Article III standing. Defs.’ Mot. to Dismiss, 

ECF No. 33. This Court denied in part and granted in part Defendants’ motion. See Op. As relevant 

here, this Court concluded that the complaint sufficiently alleges that Plaintiffs have standing. Op. at 

1. 

As to Texas, the Court concluded that “Texas plausibly alleges an injury to its sovereign 

interest in enforcing H.B. 20.” Id. at 12. The Court reasoned that the complaint alleged that 

Defendants engaged in a “pressure campaign” to encourage social media platforms to “censor[] 

‘misinformation’ and ‘disinformation,’” id. at 14, which the Court held to be conduct prohibited by 

HB 20, id. at 15. The Court also determined that the injury was traceable to Defendants. The Court 

did not discuss any specific examples of coercion or threats that Defendants purportedly made to 

social media companies; rather, drawing on an apparent reference to the White House in the now 

reversed Fifth Circuit opinion, the Court reasoned that “allegations that one of ‘the most powerful 

office[s] in the world’ repeatedly promoted and marketed the tools to social media companies” 

constituted per se “unrelenting pressure.” Op. at 18 (quoting Missouri, 83 F.4th at 371). Indeed, the 

Court reasoned that this case is “indistinguishable” for purposes of standing from Missouri. See Op. at 

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19. There, the Fifth Circuit erroneously found a traceable injury based on the theory that social media 

platforms’ “censorship decisions were likely attributable at least in part to the platforms’ reluctance to 

risk the adverse legal or regulatory consequences that could result from a refusal to adhere to the 

government’s directives.” Missouri, 83 F.4th at 370. 

 The Court made similar conclusions regarding Media Plaintiffs. The Court concluded that the 

complaint alleged “specific details of past instances of alleged conduct” sufficient for establishing an 

ongoing injury because the complaint included allegations that “censorship tools and technologies” 

previously “promoted” by Defendants are being presently used by social media companies to suppress 

Media Plaintiffs’ speech. Op. at 24–25 (quoting Missouri, 83 F.4th at 367 (“Past harm can constitute 

an injury-in-fact for purposes of pursuing injunctive relief if it causes continuing, present adverse 

effects[.]” (internal quotation marks and alterations omitted))). In support, this Court cited allegations 

that the GEC met with social media platforms to “market and promote” technologies, made certain 

information publicly and privately available, and operated a platform for testing technology; it did not 

cite any allegations that the GEC pressured any other entity to do anything. Op. at 23–24. 

The Court additionally concluded that the complaint’s allegations of “past censorship efforts” 

were also sufficient to establish future injury because Plaintiffs alleged a “strong likelihood that [Media 

Plaintiffs’] injuries will reoccur.” Id. at 25 (citing Missouri, 83 F.4th at 367–68). And the Court held that 

Plaintiffs had adequately alleged that their injuries were traceable to Defendants, pointing to Plaintiffs’ 

allegations that third parties “deplatformed and demoted Media Plaintiffs as a result” of Defendants’ 

“deliberate efforts to market and promote the censorship tools and technologies.” Id. at 27 (citing 

Missouri, 83 F.4th at 361–62). 

III. The Supreme Court’s Decision in Missouri 

After this Court’s ruling, the Supreme Court reversed the Fifth Circuit’s decision in Missouri

and held that the plaintiffs in that case lacked Article III standing. There, the States of Louisiana and 

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Missouri, and five individual social media users, sought preliminary injunctive relief against various 

Executive Branch officials and agencies based on allegations “that they pressured [social media] 

platforms to suppress protected speech in violation of the First Amendment.” Missouri, 144 S. Ct. at 

1981. In particular, the social media users alleged that “various platforms removed or demoted their 

COVID-19 or election-related content,” and alleged the “Federal Government was behind it.” Id. at 

1984. And Louisiana and Missouri claimed that social media platforms “suppressed the speech of state 

entities and officials, as well as their citizens’ speech.” Id. The district court granted preliminary 

injunctive relief, Missouri v. Biden, 680 F. Supp. 3d 630 (W.D. La. 2023), which the Fifth Circuit affirmed 

in part, Missouri v. Biden, 83 F.4th 350 (5th Cir. 2023). The claims in that case were based on regular 

communications between federal entities, including the White House, the Centers for Disease Control 

and Prevention, the Surgeon General, and the FBI, and major social media platforms, about COVID19 and U.S. election-related misinformation. Missouri, 144 S. Ct. at 1982 (“[V]arious federal officials 

regularly spoke with the platforms about COVID–19 and election-related misinformation.”). The 

Supreme Court concluded, however, that none of the seven plaintiffs had standing as to any of the 

named defendants, reversing the judgment of the Fifth Circuit. Id. at 1985. 

 The Supreme Court explained that in order to have standing, “the plaintiffs must show a 

substantial risk that, in the near future, at least one platform will restrict the speech of at least one 

plaintiff in response to the actions of at least one Government defendant.” Id. at 1986. That principle 

foreclosed plaintiffs’ claimed content-moderation injuries, which all “depend[ed] on the platform’s 

actions.” Id. at 1986. 

In particular, the Supreme Court held that the plaintiffs had not established “specific 

causation” because each plaintiff failed to make even the “threshold showing” “that a particular 

defendant pressured a particular platform to censor a particular topic before that platform suppressed 

a particular plaintiff’s speech on that topic.” Id. at 1987–88. Assessing the asserted “direct censorship 

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injuries” on a plaintiff-by-plaintiff, defendant-by-defendant, platform-by-platform, and topic-by-topic 

basis, the Court concluded that no plaintiff had established past injuries traceable to the government 

conduct at issue. See id. at 1987. “And even where the plaintiff, platform, time, content, and defendant 

line up, the links must be evaluated in light of the platform’s independent incentives to moderate 

content.” Id. at 1988. 

The Court also rejected the contention that past instances of content moderation affecting the 

plaintiffs sufficed to confer Article III standing because there was no evidence that any of those 

episodes of content moderation had been caused by any action of the government. Id. at 1991–92. 

Ultimately, the Court concluded that the plaintiffs had not fairly traced instances in which they were 

subject to content moderation to alleged government pressure, as opposed to decisions the platforms 

reached in the exercise of their own independent judgment, id. at 1987, 1992, and the plaintiffs merely 

“speculat[ed] that the platforms’ future moderation decisions [would] be attributable, even in part, to 

the defendants,” id. at 1993; see also id. at 1986 (concluding standing was lacking where the plaintiffs’ 

claims “depend on the platform’s actions—yet the plaintiffs do not seek to enjoin the platforms from 

restricting any posts or accounts”). 

The Supreme Court also concluded that plaintiffs failed to show “‘a real and immediate threat 

of repeated injury,’” as required to obtain prospective relief. Id. at 1986 (citation omitted). “[W]ithout 

proof of an ongoing pressure campaign,” the Supreme Court determined it was “entirely speculative 

that the platforms’ future moderation decisions [would] be attributable, even in part, to the 

defendants.” Id. at 1993. Additionally, the Supreme Court concluded that it was insufficient to “claim[] 

broadly that ‘the government’ continues to communicate with the platforms about ‘contentmoderation issues.” Id. (cleaned up). Rather, the plaintiffs were required to show that “each 

Government defendant continues to engage in the challenged conduct, which is ‘coercion’ and 

‘significant encouragement,’ not mere ‘communication’” about moderating content about specific 

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“topics.” Id. (emphasis omitted).

LEGAL STANDARD 

Federal Rule of Civil Procedure 12(h)(3) preserves a party’s ability to move to dismiss for lack 

of subject-matter jurisdiction at any point in the litigation. Fed. R. Civ. P. 12(h)(3); see Arbaugh v. Y&H 

Corp., 546 U.S. 500, 506 (2006) (“The objection that a federal court lacks subject-matter jurisdiction 

... may be raised by a party, or by a court on its own initiative, at any stage in the litigation.”). The 

parties asserting federal jurisdiction—here, Plaintiffs—bear the burden of establishing its existence. 

Alabama-Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 487 (5th Cir. 2014); see also Ramming v. 

United States, 281 F.3d 158, 161 (5th Cir. 2001) (“The burden of proof for a Rule 12(b)(1) motion to 

dismiss is on the party asserting jurisdiction.”). It is “presume[d] that federal courts lack jurisdiction 

unless the contrary appears affirmatively from the record.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 

342 n.3 (2006). A plaintiff must allege a “plausible set of facts” that, if proven, would establish subjectmatter jurisdiction. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). 

To the extent that the Court construes this motion as a motion to reconsider the Court’s partial 

denial of Defendants’ earlier motion to dismiss, see Op., reconsideration and dismissal would be 

appropriate. Federal Rule of Civil Procedure 54(b) allows courts to revise or amend “any order ... that 

adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... at any 

time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” 

“[T]he trial court is free to reconsider and reverse its decision for any reason it deems sufficient.” 

Austin v. Kroger Texas, L.P., 864 F.3d 326, 336 (5th Cir. 2017). In particular, reconsideration may be 

appropriate “where there has been an intervening change in the controlling law.” Mei Pang v. Levitt, 

2024 WL 2108842, at *2 (W.D. Tex. Apr. 22, 2024); see also United States v. Abbott, 2024 WL 3593683 

(W.D. Tex. July 30, 2024) (reconsidering ruling on standing, over opposition of the State of Texas, 

based in part on intervening appellate authority). 

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Here, reconsideration is appropriate because the Supreme Court’s decision in Missouri, which 

was issued after this Court’s prior ruling, constitutes an intervening change in the controlling law. 

Missouri clarified how to apply well-established standing principles to claims alleging that the 

government is pressuring private parties to suppress protected speech online, and, in particular, it 

reversed the Fifth Circuit opinion underlying key portions of this Court’s prior decision. See Op. at 

18–20 (analyzing traceability and redressability for Texas pursuant to the Fifth Circuit’s Missouri

opinion), id. 24–27 (analyzing injury, traceability, and redressability for Media Plaintiffs pursuant to 

the Fifth Circuit’s Missouri opinion). 

ARGUMENT 

I. Under Missouri, Plaintiffs have failed to plausibly allege Article III standing. 

Article III of the Constitution limits the judicial power to “Cases” and “Controversies”—a 

requirement that is “fundamental to the judiciary’s proper role in our system of government.” Raines 

v. Byrd, 521 U.S. 811, 818 (1997). As part of the case-or-controversy requirement, a plaintiff must have 

standing to sue. The “constitutional minimum of standing,” Lujan v. Defs. of Wildlife, 504 U.S. 555, 

560–61 (1992), has three requirements: (1) an injury-in-fact, that is (2) “fairly traceable to the 

challenged action,” (3) and “redressable by a favorable ruling.” Missouri, 144 S. Ct. at 1986 (quoting 

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)). “[S]tanding is not dispensed in gross; rather, 

plaintiffs must demonstrate standing for each claim that they press” and “for each form of relief that 

they seek.” TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021). Where, as here, “the plaintiff is not 

[it]self the object of the government action or inaction [it] challenges,” the Supreme Court has 

recognized that “standing is ... substantially more difficult to establish.” Lujan, 504 U.S. at 562. 

Furthermore, the “standing inquiry” is “especially rigorous” in this case because “reaching the merits 

of the dispute would force” the court “to decide whether an action taken by one of the other two 

branches of the Federal Government was unconstitutional.” Raines, 521 U.S. at 819–20. 

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The Supreme Court’s decision in Missouri applied these well-established principles to claims 

alleging that federal agencies pressured social media companies to “censor” online speech, and the 

Supreme Court’s analysis requires dismissal of the complaint here. In Missouri, the Supreme Court 

evaluated Article III standing at the preliminary injunction stage, while here, standing is to be evaluated 

at the pleadings stage. To be sure, Plaintiffs need not prove facts establishing their standing at this 

stage of the litigation, but they must nevertheless plead a non-conclusory, plausible set of facts that 

would establish their standing under the legal principles set out by the Supreme Court in Missouri. See 

Lane, 529 F.3d at 557; Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). 

This Court stated in ruling on Defendants’ Rule 12(b) motion to dismiss that “[t]his case is 

indistinguishable” from the Missouri litigation in relevant part, that is, with respect to Plaintiffs’ theory 

of standing. Op. at 19. Since then, the Supreme Court in Missouri emphatically rejected the analysis 

underlying the Fifth Circuit’s Missouri decision, upon which this Court and Plaintiffs relied. There, like 

here, the plaintiffs’ theories of standing “depend on the platform’s actions—yet the plaintiffs do not 

seek to enjoin the platforms from restricting any posts or accounts.” 144 S. Ct. at 1986. Rather, the 

Missouri plaintiffs and Plaintiffs here both “seek to enjoin Government agencies and officials from pressuring 

or encouraging the platforms to suppress protected speech in the future.” Id. This “one-step-removed, 

anticipatory nature of their alleged injuries presents the plaintiffs with two particular challenges.” Id. 

First, Plaintiffs have not alleged facts sufficient to support traceability, because their theory of 

standing “require[s] guesswork as to how independent decisionmakers will exercise their judgment.” 

Id. at 1986 (quoting Clapper, 568 U.S. at 413); see Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41–42 

(1976). Traceability for claims alleging government-caused “censorship” of speech on social media 

platforms requires a “threshold showing ... that a particular defendant pressured a particular platform 

to censor a particular topic before that platform suppressed a particular plaintiff’s speech on that topic.” 

Missouri, 144 S. Ct. at 1988. Furthermore, even where that timeline “line[s] up,” those “links must be 

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evaluated in light of the platform’s independent incentives to moderate content.” Id. The complaint’s 

allegations, accepted as true, fail to plausibly make that threshold showing for either Texas or Media 

Plaintiffs. And even if they did, the complaint contains allegations acknowledging that the platforms 

(and, as relevant for Media Plaintiffs, advertisers) have “independent incentives” to moderate content, 

id. at 1987. E.g., Compl. ¶¶ 102–03 (describing wholly private agreements between the social media 

platforms and other third-party companies with respect to content moderation). 

Second, Plaintiffs “request forward-looking relief,” and therefore they must plausibly allege 

that they “face ‘a real and immediate threat of repeated injury.’” Missouri, 144 S. Ct. at 1986 (quoting 

O’Shea v. Littleton, 414 U.S. 488, 496 (1974)); Los Angeles v. Lyons, 461 U.S. 95, 108 (1983). The vast 

majority of the allegations in the complaint describe conduct that predates the filing of complaint, 

much of it by several years, and those that describe ongoing conduct do so in generalized terms 

insufficient to allege immediate and traceable injury as required. E.g., Compl. ¶¶ 161, 165, 170, 172–

75 (alleging that GEC activities “target” “Americans,” the “American press,” or “Americans’ speech” 

generally). 

Finally, for many of the same reasons, Plaintiffs’ injuries are not redressable by an injunction 

that targets the government rather than independent third parties, and where there is no allegedly 

“ongoing pressure campaign” (as opposed to mere communication with the platforms) that is causing 

Plaintiffs traceable injuries to enjoin in the first place. Missouri, 144 S. Ct. at 1993. 

A. Under Missouri, Plaintiffs’ alleged injuries are not traceable to Defendants. 

1. Texas has not plausibly alleged a causal connection between Defendants’ 

alleged conduct and any platform’s actions allegedly violating HB 20. 

Texas’s theory of standing is that Defendants are “interfere[ing] with Texas’s sovereign right 

to create and enforce a legal code”—that is, with HB 20, a presently enjoined state law that would 

regulate social media companies’ content-moderation decisions. Compl. ¶¶ 234–39. Plaintiffs allege 

Defendants are doing so through their actions to “fund, develop, market, and/or promote” so-called 

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“censorship tools, technolog[ies], and ... enterprises” to social media companies, with the companies 

in turn using those tools in ways that violate HB 20. Id. ¶¶ 234–35. But assuming that interfering with 

the enforcement of an enjoined state law—and one that is almost certainly unconstitutional in relevant 

part—can constitute injury-in-fact,2 Texas has not alleged facts supporting any “causal connection” 

between Defendants’ alleged actions—the funding, promotion, and marketing of so-called 

“censorship tools”—and the decisions of third-party social media platforms that allegedly violate HB 

20. Lujan, 504 U.S. at 560. Applying the framework set forth by Missouri, Texas must, as a threshold 

matter, allege that “a particular defendant pressured a particular platform to censor a particular topic” 

in violation of HB 20 “before that platform suppressed” “particular ... speech on that topic.” 144 S. 

Ct. at 1988. And even where there is “pressure,” that pressure must be tied to “discrete instance[s] of 

content moderation” for purposes of causation. Id. at 1987.3

In this Court’s initial decision, the Court did not identify specific instances of alleged 

“pressure”—rather, following the then-binding but now reversed Fifth Circuit decision in Missouri, it 

found causation based on a presumed “pressure campaign,” Op. at 14, by Defendants directed at the 

social media platforms “to demote and deplatform certain users” that it reasoned was enough to 

2

 The Supreme Court indicated that the application of HB 20 relevant here—restricting content 

moderation by the major social media platforms—almost certainly violates the First Amendment, 

contrary to the Fifth Circuit’s analysis. NetChoice, 144 S. Ct. at 2408 (“The reason Texas is regulating 

the content-moderation policies that the major platforms use for their feeds is to change the speech 

that will be displayed there. Texas does not like the way those platforms are selecting and moderating 

content, and wants them to create a different expressive product, communicating different values and 

priorities. But under the First Amendment, that is a preference Texas may not impose.”); id. at 2399 

(“The Fifth Circuit was wrong in concluding that Texas’s restrictions on the platforms’ selection, 

ordering, and labeling of third-party posts do not interfere with expression.”). 

3 Massachusetts v. EPA, 549 U.S. 497 (2007), does not change the relevant standard for what a State 

must show for traceability in a case like this. The Court in Missouri applied this traceability standard to 

Louisiana’s and Missouri’s claims that the platforms were suppressing the speech of state employees 

and officials. 144 S. Ct. at 1989. 

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establish traceability, Op. at 18.4 That conclusion was based on a passage from the Fifth Circuit’s 

decision, based on which this Court concluded that “allegations that one of ‘the most powerful 

office[s] in the world’ repeatedly promoted and marketed ... tools to social media companies is 

sufficient to allege that the companies ... likely ‘did, and would continue to, bend to the government’s 

will.’” Op. at 18 (quoting Missouri, 83 F.4th at 371).5 This Court also relied on language from Missouri

that “the platforms’ ‘censorship decisions were likely attributable at least in part to the platforms’ 

reluctance to risk the adverse legal or regulatory consequences that could result from a refusal to 

adhere to the government’s directives,’”6 in rejecting Defendants’ argument that any injury to Texas 

4

 Defendants respectfully disagree with this Court’s prior characterization of the complaint as alleging 

that the GEC “coerce[d]” the platforms in any way. Op. at 18. The complaint does not contain any 

allegations of coercion, directives, or threats—to the contrary, the complaint primarily alleges that 

Defendants “funded,” “promoted,” “marketed,” or “discussed” certain technologies. At most, the 

complaint alleges that the GEC “pushed” or “encouraged” social media companies to join a website 

containing a repository of disinformation technologies, Compl. ¶¶ 76–77. But even those allegations 

would not establish traceability, because as further discussed below, encouraging companies to join a 

website does not plausibly allege that the companies were forced or otherwise pressured to use the 

technologies on that site in any particular way, much less in ways that injure Texas or Media Plaintiffs 

as required under Missouri’s traceability test. Any such theory therefore depends on “guesswork as to 

how independent decisionmakers will exercise their judgment” and fails. 144 S. Ct. at 1986. Finally, to 

be sure, the complaint does allege in one instance (¶ 37) broadly that the “federal government has 

coerced social media platforms to censor disfavored press and viewpoints,” but that general allegation 

is conclusory and, even if it were not, is likewise insufficient to allege specific causation under Missouri 

for the same reason. 

5

 Significantly, the reference in the Fifth Circuit’s decision to “the most powerful office in the world” 

was not to the State Department. While the Fifth Circuit used that phrase to describe some of the 

other defendants in that case, such as the White House, the Fifth Circuit made clear that the State 

Department’s communications with the platforms, in contrast, “[did] not appear coercive in tone, did 

not refer to adverse consequences, and were not backed by any apparent authority.” 83 F.4th 371, 

391; id. (“As for the State Department, while it did communicate directly with the platforms, so far 

there is no evidence these communications went beyond educating the platforms on ‘tools and 

techniques’ used by foreign actors.”). Thus, the Fifth Circuit reversed the district court’s injunction as 

to the State Department. Id. at 398. 

6

 Defendants additionally respectfully note that there are no allegations in this case that the GEC or 

any other named Defendants issued any “directives” to anyone or threatened any legal or regulatory 

consequences. Moreover, the State Department has no power to impose such consequences on social 

media companies. 

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was the result of the platforms’ independent actions. Op. at 19 (quoting Missouri, 83 F.4th at 370). 

That is precisely the language and reasoning that the Supreme Court rejected in Missouri. In 

particular, the Supreme Court identified the “lack of specific causation findings with respect to any 

discrete instance of content moderation” to be “[t]he primary weakness” in the Fifth Circuit’s opinion. 

144 S. Ct. at 1987. The Supreme Court acknowledged that the Fifth Circuit found that the platforms 

“[had] engaged in censorship of certain viewpoints on key issues” while “the government has engaged 

in a years-long pressure campaign,” and then inferred that the former was “likely attributable” to the 

latter. Id. (quoting Missouri, 83 F.4th at 370). The Supreme Court, however, “reject[ed] [that] overly 

broad assertion” as sufficient to show standing, explaining that that reasoning exemplified how the 

Fifth Circuit had erroneously “approached standing at a high level of generality,” whereas Article III 

demands a more precise and rigorous traceability analysis. Id. As explained, to plausibly allege 

traceability here, Texas needs to allege facts showing that Defendants pressured particular platforms 

to “censor” speech about particular topics in ways that would violate HB 20; that those platforms did 

subsequently “censor” speech about those topics; and that they did so due to Defendants’ actions 

rather than due to their independent economic incentives to moderate content. Texas has not done 

so. Just as the Supreme Court found a lack of traceability in Missouri, the same result obtains here. See 

Op. at 19 (finding that “[t]his case is indistinguishable” from the Missouri litigation for purposes of 

Texas’s traceability). 

Moreover, the allegations in the complaint regarding Defendants’ purported interference with 

HB 20, accepted as true, do not otherwise satisfy the Supreme Court’s Missouri standard for three 

reasons. First, rather than alleging any facts that Defendants “pressured” particular platforms with 

respect to any particular topics, the complaint alleges only in general terms that Defendants have 

communicated about, marketed, or promoted disinformation technologies to social media platforms. 

See Missouri, 144 S. Ct. at 1987 (standing cannot be approached “at a high level of generality”). For 

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instance, the complaint alleges that Defendants made “available” to the social media platforms Disinfo 

Cloud, an online repository of disinformation technologies (which no longer exists). Compl. ¶¶ 73, 

165. Similarly, through the so-called Silicon Valley Engagement initiative, Defendants allegedly 

“marketed” disinformation technologies to social media companies or, at most, “encouraged” or 

“pushed” them to join an online repository of such technologies (but not to take any specific actions, 

much less actions that would have injured Texas). Id. ¶¶ 76, 77. Likewise, the complaint alleges that 

GEC employees held meetings with the platforms about misinformation and disinformation generally, 

id. ¶¶ 78, 85, or “highlighted” “tools and techniques” for companies generally, id. ¶ 86. But none of 

that amounts to “pressure” aimed at particular platforms to “censor” any particular speech about any 

particular topic. Those highly generalized allegations are not enough to allege traceability. 

Second, rather than alleging that those platforms subsequently “censored” speech about any 

particular topics as a direct result of pressure from Defendants about those same topics, the complaint 

alleges only that the third-party social media platforms have entered into an agreement with other 

third parties—some of whom allegedly received discrete grants for other projects from Defendants 

years ago—in ways that allegedly “restrict content.” Compl. ¶ 103. In particular, the complaint alleges 

that two particular companies (GDI and NewsGuard) “promoted” by Defendants “work with” an 

advertising firm (the Global Alliance for Responsible Media), and that firm “drove an agreement” 

between social media platforms and other advertisers pursuant to which the platforms “restrict 

content” about certain topics. Id. ¶¶ 101–03. The complaint does not allege that Defendants dictated 

this agreement—to which Defendants are not a party—or otherwise compelled or indeed had 

anything whatsoever to do with its terms. None of those allegations support a plausible inference 

that, on a topic-by-topic and platform-by-platform basis, HB 20 is being undermined as a direct result 

of Defendants’ alleged conduct, as required under Missouri. Indeed, this alleged chain—between 

Defendants, GDI and NewsGuard, advertising agencies, and the platforms—is far more attenuated 

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than the causal theories put forth in the Missouri litigation, where the record showed that federal 

agencies communicated directly and regularly with the platforms about specific topics. See Missouri, 

144 S. Ct. at 1982–84. Ultimately, any conduct on the part of social media platforms to violate HB 20 

is at least “one-step-removed,” if not more, from any of Defendants’ alleged conduct here, and 

therefore not traceable to Defendants. Id. at 1986. 

Third and relatedly, the complaint contains no allegation that social media platforms did not 

also restrict content in ways that would have violated HB 20 “before” any of Defendants’ alleged 

conduct, as required. Id. at 1988 (emphasis in original). In fact, as the Supreme Court observed in 

Missouri and as is widely known, the major social media platforms have “longstanding contentmoderation policies,” pursuant to which they “have taken a range of actions to suppress certain 

categories of speech” for years before HB 20 was passed. Id. at 1982. Thus, Plaintiffs’ theory fails 

because, like the standing theories in Missouri, it depends on “guesswork as to how independent 

decisionmakers will exercise their judgment.” 144 S. Ct. at 1986. 

Those conclusions are reinforced by Missouri’s admonition that theories of injury dependent 

on the actions of social media platforms—some of the largest and most powerful companies in the 

world—must be analyzed “in light of the platform’s independent incentives to moderate content.” Id.

at 1988. That is so “even where the ... platform, time, content, and defendant line up” with respect 

to particular instances of content moderation. Id. at 1988. And Texas’s HB 20 theory of injury warrants 

additional scrutiny because, unlike the claims in Missouri, it depends on third parties acting in ways that 

purportedly violate state law. See Telephone & Data Sys., Inc. v. FCC, 19 F.3d 42, 48 (D.C. Cir. 1994) 

(rejecting a theory of standing that “invite[d] [the court] ‘to presume illegal activities’ on the part of 

actors not before the court”). 

Here, the allegations in the complaint indicate that the platforms have strong independent 

incentives to moderate content, undermining any causal connection between Defendants’ alleged 

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conduct and social media companies’ alleged violations of HB 20. For example, the complaint alleges 

that the aforementioned Global Alliance, an organization that works with “more than 60 leading 

advertisers and major social media platforms,” “drove an agreement across advertisers, agencies, and 

platforms” to set up an overall “framework” for limiting advertising support for certain types of 

content. Compl. ¶¶ 102–103. Again, there is no allegation that GEC or the State Department had 

anything to do with that apparently sprawling agreement between wholly private parties. See generally 

id. That the Global Alliance, numerous “blue-chip advertisers” including Fortune 500 companies, see 

id. ¶ 102 (listing Dell, Exxon Mobil, and Hilton among the parties to this agreement), and the major 

social media platforms—all sophisticated private entities—independently reached the described 

agreement strongly indicates that the social media platforms were “exercis[ing] their own judgment” 

and responding to “independent incentives to moderate content,” rather than to conversations with 

the GEC, defeating traceability. Missouri, 144 S. Ct. at 1988. And more generally, as noted above, the 

platforms have moderated content pursuant to “longstanding ... policies” independent of the GEC 

“[f]or years.” Id. at 1982. 

2. Media Plaintiffs have not plausibly alleged a causal connection between 

Defendants’ actions and injury to themselves. 

Because Media Plaintiffs bring claims under the First Amendment which Texas does not bring, 

see Compl. ¶¶ 272–82 (Counts I and II), their standing must be analyzed independently. See TransUnion, 

594 U.S. at 431 (“[P]laintiffs must demonstrate standing for each claim that they press.”). This 

principle is “critically important” here so as to avoid erroneously “treat[ing] the defendants, plaintiffs, 

and platforms each as a unified whole.” Missouri, 144 S. Ct. at 1988. Media Plaintiffs’ theory of standing 

is based primarily on an alleged connection between Defendants and GDI and NewsGuard, which 

Plaintiffs describe as “censorship enterprises” that “targeted Media Plaintiffs,” and then further 

connections between GDI and NewsGuard and those companies’ clients, who use their products in 

various ways that purportedly injure Media Plaintiffs. Compl. ¶¶ 4, 101–103. Neither GDI nor 

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NewsGuard is party to this case, nor are the social media companies or other private companies 

(advertisers) who allegedly use their products. 

Under Missouri, Media Plaintiffs’ theory of injury fails for reasons similar to those that defeat 

Texas’s theory. That is because Media Plaintiffs’ allegations, if proven, would not meet the required 

“threshold showing” that Defendants pressured particular social media companies or advertisers to 

suppress Media Plaintiffs’ speech on a particular topic, or that any particular social media companies 

or advertisers subsequently did so as a result. 144 S. Ct. at 1988. Moreover, like in Missouri, Media 

Plaintiffs’ purported injuries depend on an attenuated chain of causation: that Defendants compelled 

GDI and NewsGuard, themselves independent third parties, and that GDI and NewsGuard, on the 

government’s say-so, caused social media companies and advertisers to make decisions in a way that 

caused cognizable harm to the Media Plaintiffs. Even if that attenuated causal chain could support 

Article III standing, Plaintiffs have not plausibly alleged facts that, if proven, could support that causal 

theory of harm. 

The complaint primarily focuses on the ways GEC allegedly “promoted” and “funded” GDI 

and NewsGuard. It alleges that GEC issued a grant to GDI in 2021, Compl. ¶ 125, and a grant to 

NewsGuard in 2020, id. ¶¶ 142–43.7 It does not allege future grants or future continued relationships 

with these companies. The complaint also alleges that years ago, in 2021, “Disinfo Cloud,” tweeted 

twice regarding these companies, id. ¶ 87, and issued a newsletter that “featured” a NewsGuard “tool,” 

id. ¶ 89. Then, separately, the complaint alleges that GDI and NewsGuard have created “blacklists” 

7

 The complaint contains stray allegations about grants that the GEC or entities not named to this suit 

such as the National Endowment for Democracy issued to other companies such as PeakMetrics or 

Omelas. Compl. ¶¶ 135–154. But Plaintiffs do not allege any connection between those entities and 

Media Plaintiffs (let alone a connection that would satisfy traceability), instead alleging in vague terms 

that those companies “target[] the speech of Americans.” Id. Missouri has made clear that kind of overly 

broad, generalized harm is plainly insufficient to meet Article III’s requirement that Media Plaintiffs’ 

injury be “concrete and particularized,” 144 S. Ct. at 1996 (quoting Lujan, 504 U.S. at 560), and show 

causal links between a “particular defendant,” “topic,” and “plaintiff,” id. at 1988. 

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that, if adopted by social media companies, would “reduce Media Plaintiffs’ revenue” and “visibility 

on social media[] and ranking results from browser searches.” Id. ¶ 123. But, again, these allegations 

of a handful of discrete instances of “promotion” or funding of NewsGuard or GDI generally do not 

amount to allegations of “pressure” by Defendants aimed at those companies or any social media 

companies or advertisers to suppress Media Plaintiffs’ speech, let alone their speech on any particular 

topic. This theory of traceability fails for that fundamental reason. 

The complaint also fails to establish traceability because, as the Supreme Court recently 

emphasized, “[t]he causation requirement ... rules out attenuated links—that is, where the 

government action is so far removed from its distant (even if predictable) ripple effects that the 

plaintiffs cannot establish Article III standing.” FDA v. Alliance for Hippocratic Med., 602 U.S. 367, 383 

(2024) (“Alliance”). That rules out traceability here, because the links from Defendants, to several thirdparty entities, to the social media companies or advertisers, to the Media Plaintiffs are attenuated. For 

example, there are no allegations that the GEC “pressured” NewsGuard or GDI to describe Media 

Plaintiffs in the terms that Media Plaintiffs find objectionable. See Compl. ¶ 115 (alleging that GDI 

published a one-time report in 2022 listing Media Plaintiffs as among the riskiest news outlets, with 

no allegation that the GEC was connected to that report in any way, let alone that the GEC 

“pressured” or otherwise directed GDI to describe Media Plaintiffs as such), id. ¶ 122 (similarly 

alleging that “NewsGuard ranks [Media Plaintiffs] as ‘unreliable’ media outlets,” with no allegation 

that the GEC was connected to that ranking in any way, let alone that the GEC “pressured” 

NewsGuard in relation to it). Furthermore, just as Plaintiffs have not alleged that social media 

platforms were not moderating content in ways that would violate HB 20 before Defendants’ alleged 

conduct, Plaintiffs have not alleged that GDI and NewsGuard were not engaged in the activity that 

Plaintiffs find objectionable “before” Defendants had any interaction with them. See Missouri, 144 S. 

Ct. at 1988. Nor are there allegations that any advertisers or platforms subsequently suppressed or 

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restricted Media Plaintiffs’ speech as a result of any such pressure from the GEC, as opposed to as a 

result of independent relationships with GDI and NewsGuard. 

Tellingly, the complaint contains not a single allegation that Defendants have ever once 

discussed Media Plaintiffs or Media Plaintiffs’ speech with any other third party, much less that 

Defendants ever pressured another entity to act towards Media Plaintiffs so as to cause them injury. 

The lack of any such allegations—particularly when compared with the evidence in Missouri showing 

that federal entities in fact discussed specific topics such as COVID-19 and election misinformation 

with the social media platforms, and the platforms suppressed speech about those topics, but which 

was nevertheless still insufficient to support Article III standing—is fatal under Missouri’s standard for 

traceability. 

Moreover, even if Media Plaintiffs had alleged a causal chain in which “the plaintiff, platform, 

time, content, and defendant line up,” 144 S. Ct. at 1988, the complaint shows that social media 

platforms and advertisers have independent incentives to “work with” NewsGuard and GDI, as 

explained above. See Compl. ¶¶ 102–03 (alleging the existence of a wholly private “agreement” and 

“framework” between “advertisers, agencies, and platforms” for “content [the Global Alliance] 

determined did not belong online” with no connection to Defendants). The complaint also describes 

how GDI and NewsGuard have relationships with licensees across industries, wholly independent of 

anything Defendants have done. Id. ¶¶ 106, 121. This further undermines traceability based on the 

GEC’s alleged relationship with GDI and NewsGuard. And more generally, the social media platforms 

have had “longstanding” content moderation “policies” for years. Missouri, 144 S. Ct. at 1982. 

The complaint also contains generalized assertions that unspecified “technologies,” “tools,” 

or “techniques” have been promoted or marketed by Defendants, which has “abridge[d] Media 

Plaintiffs’ First Amendment rights.” E.g., Compl. at ¶¶ 84, 86, 93, 99, 157–59. This Court previously 

concluded that some of these allegations, “when viewed in context, including the specific details of 

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past instances of alleged conduct, ... are more than sufficient to allege injury-in-fact.” Op. at 24. But 

as explained, under Missouri, those “past instances of alleged conduct” are insufficient on their own to 

show standing to seek forward-looking relief. And in any event, this Court should not credit the kinds 

of conclusory allegations described above (which simply assert, without further explanation or detail, 

that Plaintiffs’ First Amendment rights have been violated). Even if accepted as true, none of the 

allegations show that the unspecified “tools” that “abridge[] Media Plaintiffs’ First Amendment rights” 

are used by any particular actor due to pressure from the GEC; rather, the complaint simply asserts 

that the GEC “promote[d],” id. ¶ 84, or “highlighted,” id. ¶ 86, such tools (or variations of the same), 

which is far too generalized and attenuated under Missouri to allege traceability. See 144 S. Ct. at 1987 

(there must be “specific causation” for “discrete instance[s] of content moderation”); id. (standing 

cannot be approached “at a high level of generality”); see also Alliance, 602 U.S. at 383. 

Lastly, even with the benefit of inferences drawn in Plaintiffs’ favor, their allegations of a “vast 

and unprecedented government-censorship complex,” previously predicated on “[t]he preliminary 

evidence” in Missouri, are not factual allegations the Court should presume to be true. Compl. ¶¶ 45–

46. As is now clear, even with “extensive discovery,” and the significant burden that entailed for the 

Missouri defendants, none of the seven plaintiffs in Missouri was able to muster enough evidence to 

even establish the bare minimum of subject-matter jurisdiction. 144 S. Ct. at 1984. Not only that, the 

Supreme Court observed that “many” of the district court’s factual findings on which the Fifth Circuit 

relied—and which underlie Plaintiffs’ allegations of an “unprecedented government-censorship 

complex” here—“unfortunately appear[ed] to be clearly erroneous.” Id. at 1988 n.4; see Compl. ¶¶ 45–

47 & nn.18–19 (citing the Missouri district court’s opinion for its factual findings). 

Ultimately, this Court previously held that Media Plaintiffs’ alleged injuries are traceable to 

Defendants and redressable by the requested relief for substantially the same reasons that it previously 

held that Texas’s alleged injuries are traceable to Defendants, citing the Fifth Circuit’s opinion in 

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Missouri. Op. at 26–27 (citing Missouri in “again reject[ing] [Defendants’ traceability] argument[]” for 

the reasons “explained above”). Given the subsequent clarification from the Supreme Court regarding 

the correct standard for traceability in this setting and the Supreme Court’s reversal of the Fifth 

Circuit’s judgment, Media Plaintiffs have not shown traceability for essentially the same reasons that 

Texas has not done so. 

B. Under Missouri, Plaintiffs have not plausibly alleged ongoing or future injury-infact. 

To obtain forward-looking relief, the plaintiffs “must face a real and immediate threat of 

repeated injury.” Missouri, 144 S. Ct. at 1986; see also id. at 1993. The complaint’s allegations, if proven, 

would not meet that separate and distinct burden. First, the “failure to [allege] traceability for past 

harms,” as explained above, “substantially undermines [Plaintiffs’] standing theory” for purposes of 

demonstrating future injury. Id. at 1993. Second, in the context of claims alleging that the government 

is pressuring private parties to suppress protected speech, without allegations of “an ongoing pressure 

campaign” likely to cause particularized harm to Plaintiffs about particular topics, “it is entirely 

speculative that the platforms’ future moderation decisions will be attributable, even in part, to the 

defendants” in ways that injure Plaintiffs. Id. The complaint has neither plausibly alleged that there are 

past injuries traceable to Defendants sufficient to support an inference of imminent ongoing or future 

injury, nor plausibly alleged that there is any “ongoing pressure campaign” by Defendants about 

particular topics that is currently injuring or will injure Plaintiffs in the future, as required. Id.

In its initial decision, this Court determined that the “allegations of past harm” in the 

complaint were sufficient for purposes of alleging ongoing or future injury-in-fact. Op. at 24–25. In 

support, the Court cited the Fifth Circuit’s statement in Missouri that “[p]ast harm can constitute an 

injury-in-fact for purposes of pursuing injunctive relief if it causes ‘continuing, present adverse 

effects.’” Op. at 24 (quoting 83 F.4th at 367). This Court also concluded that some of those harms 

were ongoing based on “alleg[ations] that social media companies are presently using these tools” to 

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injure Media Plaintiffs. Op. at 25. Second, this Court determined that “Defendants’ past censorship 

efforts evidence a strong likelihood that their injuries will reoccur,” relying heavily again on the Fifth 

Circuit’s analysis in Missouri. Op. at 25–26 (“Missouri is again instructive.”). In particular, when this 

Court rejected Defendants’ argument that Plaintiffs have failed to plausibly alleged ongoing or future 

injury-in-fact, it cited Missouri’s statement that the “lingering effects of past censorship must be 

factored into the standing calculus,” and that there was “a substantial risk of reoccurrence because the 

government ‘continue[s] to be in regular contact with social-media platforms regarding contentmoderation issues today.’” Op. at 26 (quoting Missouri, 83 F.4th at 367–69). 

However, the Supreme Court specifically rejected the Fifth Circuit’s conclusion that the 

Missouri plaintiffs had established ongoing injury and the reasoning cited above underlying that 

holding. First, the Supreme Court explained that “the past is relevant only insofar as it is a launching 

pad for ... imminent future injury.” Missouri, 144 S. Ct. at 1987. While the Fifth Circuit accurately 

quoted Lyons’s language regarding “continuing, present adverse effects,” it erroneously applied that 

standard in too loose a manner. And second, the Supreme Court rejected the notion that simply being 

“in regular contact with social-media platforms regarding content-moderation issues today,” Missouri, 

83 F.4th 369, was sufficient for injunctive relief. That is, the Supreme Court explained that it is not 

enough to simply claim “broadly” that “the government continues to communicate with the platforms 

about content-moderation issues,” as the plaintiffs attempted to do there (and as Plaintiffs do here). 

Missouri, 144 S. Ct. at 1993 (cleaned up). Instead, Plaintiffs must allege that Defendants “continue[] to 

engage in the challenged conduct, which is ‘coercion’ and ‘significant encouragement,’ not mere 

‘communication.’” Id. Moreover, Plaintiffs must “explicitly identif[y]” specific topics about which the 

government is allegedly coercing the platforms (or advertisers) to suppress content. Id. (“Plus, the 

plaintiffs have only explicitly identified an interest in speaking about COVID–19 or elections—so the 

defendants’ discussions about content-moderation issues must focus on those topics.”). Under 

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Missouri, Plaintiffs’ theories of ongoing or future injury-in-fact fail for these very reasons. 

With respect to the GEC’s alleged past conduct, for the reasons already explained, none of 

Texas’s or Media Plaintiffs’ purported injuries are traceable to that past conduct. As Missouri stated, 

the “failure to [allege] traceability for past harms ... substantially undermines [Plaintiffs’] standing 

theory” for purposes of demonstrating future injury. Id. at 1993. 

The complaint also attempts to establish future injury for both Texas and Media Plaintiffs 

through a handful of generalized allegations about ongoing GEC activities that are purportedly 

injuring them. See Compl. ¶¶ 160–75. These allegations suffer from two structural flaws making them 

insufficient to establish particularized ongoing injury traceable to Defendants’ conduct. First, many of 

the relevant paragraphs simply allege that GEC activities “target” “Americans,” the “American press,” 

or “Americans’ speech” generally. E.g., Compl. ¶¶ 161, 165, 170, 172–75. As explained supra, at 20 n.7, 

that kind of overly broad, generalized harm is plainly insufficient to meet the basic Article III 

requirement that a plaintiff’s injury be “concrete and particularized,” and therefore cannot establish 

standing. Lujan, 504 U.S. at 560; see Missouri, 144 S. Ct. at 1988 (a plaintiff must show that its “particular 

... speech” was suppressed). Indeed, accepting such allegations as sufficient to show ongoing injury 

to Media Plaintiffs or to Texas would repeat the same mistake that the Fifth Circuit made in 

“approach[ing] standing at a high level of generality.” Missouri, 144 S. Ct. at 1987. 

Second, even if the complaint alleges some ongoing injury to Texas or Media Plaintiffs, it 

suffers from the same traceability problem identified above—nowhere do Plaintiffs allege that 

Defendants are currently “pressur[ing]” particular platforms or advertisers to “censor” particular 

topics in violation of HB 20 or to target Media Plaintiffs specifically. Nor does the complaint allege 

that Defendants engage in ongoing “‘coercion’ or ‘significant encouragement,’” distinct from “mere 

‘communication.’” Id. at 1993. At most, the complaint alleges that Defendants are communicating 

with unnamed third parties about various technologies or topics, or engaging in broad initiatives such 

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27 

as the tech challenges, but that does not show ongoing injury traceable to Defendants. Missouri, 144 

S. Ct. at 1993. Representative allegations are that the two aforementioned Twitter posts from 2021 

discussing GDI and NewsGuard remain accessible, Compl. ¶ 161, that Defendants “use ... research 

and reports ... that target Media Plaintiffs” in unspecified ways, id. ¶ 162, that Defendants “promote,” 

“market,” or “recommend[]” technology to the private sector generally, id. ¶¶ 163–64, 167, 175, that 

Defendants “award grants to fund the development” of unspecified technologies through the tech 

challenges, id. ¶ 170, that Defendants “maintain[] a platform” of “tools and technologies,” id. ¶ 173, 

and that Defendants “highlight[]” disinformation resources on the GEC website, id. ¶ 174. Simply put, 

none of these allegations are that Defendants are “pressuring” any particular companies to suppress 

Media Plaintiffs’ speech or interfere with HB 20, let alone that any company is doing so “at the behest 

of the [D]efendants.” See Missouri, 144 S. Ct. at 1987. 

C. Under Missouri, Plaintiffs’ injuries are not redressable by their requested relief. 

For many of the same reasons that Plaintiffs have not alleged traceability or future injury, this 

Court “cannot redress” their alleged injuries, because they derive from the “independent action” of 

third-party social media platforms and other third-party companies. Missouri, 144 S. Ct. at 1986. That 

is, Plaintiffs “do not seek to enjoin the platforms” (or advertisers) but instead “seek to enjoin 

Government agencies and officials” from taking certain actions with respect to “the platforms ... in the 

future.” Missouri, 144 S. Ct. at 1986; see Compl. at 65–66 (Prayer for Relief). Similarly, Plaintiffs have 

not shown “continued pressure from [D]efendants” that could be stopped by any such injunction. See 

Missouri, 144 S. Ct. at 1995. Thus, there is no ongoing conduct on the part of the GEC causing harm 

to Plaintiffs that an injunction could redress. 

Moreover, even if Plaintiffs have plausibly alleged ongoing injury from so-called “censorship” 

technologies that are now being used by independent third parties, an injunction targeted at 

Defendants would have no effect on the use of those technologies by those third parties. That is, “the 

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28 

platforms remain free to enforce, or not to enforce, [their content moderation] policies—even those 

tainted by initial governmental coercion,” and analogously, any advertiser remains free to use, or not 

use, “tools” or “technologies” that were allegedly promoted by Defendants, for any purpose they 

deem fit. Id. at 1995. Because none of the parties that are allegedly causing Plaintiffs’ injuries are 

“parties to the suit, ... there is no reason they should be obliged to honor an incidental legal 

determination the suit produced.” Id. 

CONCLUSION 

 The Court should dismiss the complaint for lack of subject-matter jurisdiction.8

Dated: August 28, 2024 Respectfully submitted, 

BRIAN M. BOYNTON 

Principal Deputy Assistant Attorney General 

JOSHUA E. GARDNER

Special Counsel 

Federal Programs Branch 

JOSEPH E. BORSON 

Assistant Director 

Federal Programs Branch 

/s/ Arjun Mody_____________________ 

JOSHUA M. KOLSKY (DC #993430) 

Senior Trial Counsel 

DOROTHY M. CANEVARI (NY #5989694) 

CRISTEN C. HANDLEY (MO #69114) 

ARJUN MODY (DC #90013383) 

Trial Attorneys 

United States Department of Justice 

Civil Division, Federal Programs Branch 

1100 L Street, N.W. 

8

 This Court previously ordered expedited discovery in connection with Plaintiffs’ forthcoming motion 

for preliminary injunction. That discovery is ongoing, and Defendants will continue to act in 

compliance with their discovery obligations unless and until this Court orders otherwise. 

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Washington, D.C. 20005 

Tel: (202) 451-7723 

Email: arjun.a.mody@usdoj.gov 

Counsel for Defendants 

 

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CERTIFICATE OF SERVICE 

 On August 28, 2024, I electronically submitted this document to the clerk of the court of the 

U.S. District Court for the Eastern District of Texas using the court’s electronic case filing system. I 

certify that I have served all parties electronically or by another manner authorized by Federal Rule 

of Civil Procedure 5(b)(2). 

 /s/ Arjun Mody __

 Arjun Mody 

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