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’ COMBINED OPPOSITION TO PLAINTIFFS’ MOTION FOR 

PRELIMINARY INJUNCTION AND MOTION TO DISMISS FOR LACK OF 

JURISDICTION 

BRIAN M. BOYNTON 

 Principal Deputy Assistant Attorney General 

 JAMES J. GILLIGAN 

Special Litigation Counsel 

Federal Programs Branch 

JOSHUA E. GARDNER 

Special Counsel 

Federal Programs Branch 

DOROTHY M. CANEVARI 

CRISTEN C. HANDLEY 

 CODY T. KNAPP 

ARJUN MODY 

 Trial Attorneys 

 U.S. Department of Justice 

 Civil Division, Federal Programs Branch 

 1100 L Street NW 

 Washington, D.C. 20005 

 Tel: (202) 451-7723 

 Email: arjun.a.mody@usdoj.gov 

 Counsel for Defendants 

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TABLE OF CONTENTS 

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

STATEMENT OF ISSUES ............................................................................................................................. 3

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

I. Legal and Factual Background .................................................................................................................. 3

A. Congress tasked the State Department’s “Global Engagement Center” with exposing and 

countering foreign state and non-state propaganda and disinformation aimed at undermining 

or influencing the policies, security, or stability of the United States and its allies. ................... 3

B. GEC carried out various initiatives through a grant to Park Advisors. ....................................... 7

1. 2020 subgrant to NewsGuard to understand the origins, content and spread of 

Russian and Chinese disinformation campaigns. ................................................................. 8

2. 2021 subgrant to Global Disinformation Index, Ltd. to add foreign language 

capabilities to its existing technology. .................................................................................. 10

C. NewsGuard’s and GDI’s other business. ....................................................................................... 12

1. NewsGuard’s “Nutrition Labels” and “Misinformation Fingerprints” Products ......... 12

2. GDI’s Dynamic Exclusion List ............................................................................................ 13

II. This Litigation ............................................................................................................................................ 14

LEGAL STANDARDS .................................................................................................................................. 15

ARGUMENT ................................................................................................................................................... 16

I. The Court should dismiss this case for lack of jurisdiction. ............................................................... 16

A. Texas lacks standing. .......................................................................................................................... 17

B. Media Plaintiffs lack standing. .......................................................................................................... 20

II. Plaintiffs’ Motion for Preliminary Injunction should be denied. ....................................................... 28

A. Plaintiffs fail to demonstrate irreparable harm. ............................................................................. 28

B. Plaintiffs fail to demonstrate a likelihood of success on the merits of their claims. ................ 30

1. Plaintiffs have not made a “clear showing” that they have standing. ............................. 30

2. Media Plaintiffs are unlikely to succeed on their First Amendment claims. .................. 31

3. Plaintiffs are unlikely to succeed on their APA and Ultra Vires claims. .......................... 41

C. The balance of equities and the public interest disfavor a preliminary injunction. .................. 44

D. Plaintiffs’ proposed injunction is improper. ................................................................................... 46

1. The proposed injunction is imprecise. ................................................................................. 46

2. The proposed injunction is overbroad. ............................................................................... 48

III. Claims against the official capacity Defendants should be dismissed. .............................................. 49

CONCLUSION ............................................................................................................................................... 50

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TABLE OF AUTHORITIES 

Cases

Ala. Rural Fire Ins. Co. v. Naylor, 

530 F.2d 1221 (5th Cir. 1976) .................................................................................................................... 44 

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 

526 U.S. 40 (1999) ....................................................................................................................................... 33 

Anyadike v. Vernon Coll., 

2015 WL 12964684 (N.D. Tex. Nov. 20, 2015) ..................................................................................... 29 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) .............................................................................................................................. 20, 21 

Ass’n of Am. Physicians & Surgeons v. Schiff, 

 518 F. Supp. 3d 505 (D.D.C. 2021) ......................................................................................................... 27 

Bailey v. Mansfield Indep. Sch. Dist., 

425 F. Supp. 3d 696 (N.D. Tex. 2019), 

appeal dismissed sub nom. Bailey v. Vaszauskas, 2020 WL 3053942 (5th Cir. Feb. 28, 2020) ................. 38 

Barber v. Bryant, 

860 F.3d 345 (5th Cir. 2017) ...................................................................................................................... 30 

Bd. of Regents of Univ. of Wis. Sys. v. Southworth, 

529 U.S. 217, (2000) .................................................................................................................................... 39 

Benisek v. Lamone, 

585 U.S. 155 (2018) ..................................................................................................................................... 29 

Bennett v. Spear, 

520 U.S. 154 (1997) .............................................................................................................................. 41, 42 

Blum v. Yaretsky, 

457 U.S. 991 (1982) ............................................................................................................................. passim 

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 

531 U.S. 288 (2001) ........................................................................................................................ 31, 35, 36 

Burton v. Wilmington Parking Auth., 

365 U.S. 715 (1961) ..................................................................................................................................... 36 

Califano v. Yamasaki, 

442 U.S. 682 (1979) ..................................................................................................................................... 48 

City of L.A. v. Lyons, 

461 U.S. 95 (1983) ................................................................................................................................ 17, 20 

Case 6:23-cv-00609-JDK Document 28 Filed 03/15/24 Page 3 of 59 PageID #: 790
iii 

Clapper v. Amnesty Int’l USA, 

568 U.S. 398 (2013) ........................................................................................................................ 18, 22, 31 

Ctr. for Biological Diversity v. U.S. EPA, 

937 F.3d 533 (5th Cir. 2019) ...................................................................................................................... 18 

DaimlerChrysler Corp. v. Cuno, 

547 U.S. 332 (2006) ..................................................................................................................................... 15 

Danos v. Jones, 

652 F.3d 577 (5th Cir. 2011) ...................................................................................................................... 44 

Davis v. Pension Benefit Guar. Corp., 

571 F.3d 1288 (D.C. Cir. 2009) ................................................................................................................. 45 

Def. Distributed v. U.S. Dep’t of State, 

838 F.3d 451 (5th Cir. 2016) ...................................................................................................................... 46 

El Paso Cnty. v. Trump, 

982 F.3d 332 (5th Cir. 2020) ...................................................................................................................... 30 

Frazier v. Bd. of Trs. of N.W. Miss. Reg. Med. Ctr., 

765 F.2d 1278 (5th Cir. 1985) .................................................................................................................... 36 

Geyen v. Marsh, 

775 F.2d 1303 (5th Cir. 1985) .................................................................................................................... 44 

Google, Inc. v. Hood, 

822 F.3d 212 (5th Cir. 2016) ...................................................................................................................... 28 

H.D. Vest, Inc. v. H.D. Vest Mgmt. & Servs., LLC, 

2009 WL 1766095 (N.D. Tex. June 23, 2009) ......................................................................................... 29 

Harmon v. Dall. Cnty., 

927 F.3d 884 (5th Cir. 2019) ...................................................................................................................... 49 

Holland Am. Ins. Co. v. Succession of Roy, 

777 F.2d 992 (5th Cir. 1985) ...................................................................................................................... 37 

Hotze v. Burwell, 

784 F.3d 984 (5th Cir. 2015) ...................................................................................................................... 16 

Humana, Inc. v. Jacobson, 

804 F.2d 1390 (5th Cir. 1987) .................................................................................................................... 28 

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

946 F.3d 649 (5th Cir. 2019) ............................................................................................................... 22, 27 

Case 6:23-cv-00609-JDK Document 28 Filed 03/15/24 Page 4 of 59 PageID #: 791
iv 

Janvey v. Alguire, 

647 F.3d 585 (5th Cir. 2011) ...................................................................................................................... 28 

Jordan v. Fisher, 

823 F.3d 805 (5th Cir. 2016) ...................................................................................................................... 16 

Kennedy v. Warren, 

66 F.4th 1199 (9th Cir. 2023)..................................................................................................................... 38 

La. Div. Sons of Confederate Veterans v. City of Natchitoches, 

821 F. App’x 317 (5th Cir. 2020) ....................................................................................................... 34, 35 

Leaf Trading Cards, LLC v. Upper Deck Co., 

2019 WL 7882552 (N.D. Tex. Sept. 18, 2019) ........................................................................................ 29 

Leedom v. Kyne, 

358 U.S. 184 (1958) ..................................................................................................................................... 44 

Lugar v. Edmondson Oil Co., 

457 U.S. 922 (1982) ..................................................................................................................................... 35 

Lujan v. Defs. of Wildlife, 

504 U.S. 555 (1992) ................................................................................................................. 15, 16, 22, 42 

Lujan v. Nat’l Wildlife Found., 

497 U.S. 871 (1990) ..................................................................................................................................... 42 

Manhattan Cmty. Access Corp. v. Halleck, 

587 U.S. 808 (2019) .............................................................................................................................. 31, 37 

Martinez v. Mathews, 

544 F.2d 1233 (5th Cir. 1976) .................................................................................................................... 16 

Mayo Found. for Med. Educ. & Rsch. v. BP Am. Prod. Co., 

447 F. Supp. 3d 522 (N.D. Tex. 2020) ..................................................................................................... 45 

Millennium Funding, Inc. v. 1701 Mgmt. LLC, 

2021 WL 3618227 (S.D. Fla. Aug. 16, 2021) ........................................................................................... 29 

Missouri v. Biden, 83 F.4th 350 (5th Cir. 2023), 

cert. granted sub nom., Murthy v. Missouri, 144 S. Ct. 7 (2023) ............................................................ passim 

Mood v. Cnty. of Orange, 

2019 WL 13036027 (C.D. Cal. July 25, 2019) ......................................................................................... 21 

Munaf v. Geren, 

553 U.S. 674 (2008) ..................................................................................................................................... 15 

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v 

Nat’l Endowment for the Arts v. Finley, 

524 U.S. 569 (1998) ..................................................................................................................................... 38 

NCAA v. Tarkanian, 

488 U.S. 179 (1988) .............................................................................................................................. 35, 36 

NetChoice, LLC v. Paxton, 

142 S. Ct. 1715 (2022) ................................................................................................................................. 18 

NetChoice, LLC v. Paxton, 

144 S. Ct. 477 (2023) ................................................................................................................................... 18 

NetChoice, LLC v. Paxton, 

2022 WL 1537249 (5th Cir. May 11, 2022).............................................................................................. 18 

NetChoice, LLC v. Paxton, 

49 F.4th 439 (5th Cir. 2022) ....................................................................................................................... 18 

NetChoice, LLC v. Paxton, 

573 F. Supp. 3d 1092 (W.D. Tex. 2021) .................................................................................................. 18 

Nken v. Holder, 

556 U.S. 418 (2009) ..................................................................................................................................... 44 

Norton v. S. Utah Wilderness All., 

542 U.S. 55 (2004) ....................................................................................................................................... 42 

Nyunt v. Chairman, Broad. Bd. of Governors, 

589 F.3d 445 (D.C. Cir. 2009) ................................................................................................................... 44 

O’Shea v. Littleton, 

414 U.S. 488 (1973) .............................................................................................................................. 17, 20 

Oestereich v. Selective Serv. Sys. Loc. Bd. No. 11, 

393 U.S. 233 (1968) ..................................................................................................................................... 44 

Pals Grp., Inc. v. Quiskeya Trading Corp., 

2017 WL 532299 (S.D. Fla. Feb. 9, 2017) ................................................................................................ 29 

Paterson v. Weinberger, 

644 F.2d 521 (5th Cir. 1981) ...................................................................................................................... 15 

Pennhurst State Sch. & Hosp. v. Halderman, 

465 U.S. 89 (1984) ....................................................................................................................................... 44 

Penthouse Int’l, Ltd. v. Meese, 

939 F.2d 1011 (D.C. Cir. 1991) .......................................................................................................... 38, 39 

Case 6:23-cv-00609-JDK Document 28 Filed 03/15/24 Page 6 of 59 PageID #: 793
vi 

Polar Tankers, Inc. v. City of Valdez, 

557 U.S. 1 (2009) ......................................................................................................................................... 40 

Qureshi v. Holder, 

663 F.3d 778 (5th Cir. 2011) ...................................................................................................................... 41 

Rendell-Baker v. Kohn, 

457 U.S. 830 (1982) ..................................................................................................................................... 33 

Schmidt v. Lessard, 

414 U.S. 473 (1974) ..................................................................................................................................... 46 

Scott v. Schedler, 

826 F.3d 207 (5th Cir. 2016) ............................................................................................................... 46, 49 

Seiko Kabushiki Kaisha v. Swiss Watch Int’l, Inc., 

188 F. Supp. 2d 1350 (S.D. Fla. 2002) ...................................................................................................... 29 

Shurtleff v. City of Bost., 

596 U.S. 243 (2022) ..................................................................................................................................... 39 

Sierra Club v. Peterson, 

228 F.3d 559 (5th Cir. 2000) ............................................................................................................... 41, 42 

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

426 U.S. 26 (1976) ....................................................................................................................................... 22 

Soc’y of Separationists, Inc. v. Herman, 

959 F.2d 1283 (5th Cir. 1992) .................................................................................................................... 30 

Spokeo, Inc. v. Robins, 

578 U.S. 330 (2016) ..................................................................................................................................... 16 

Superior MRI Servs., Inc. v. All. Healthcare Servs., Inc., 

 778 F.3d 502 (5th Cir. 2015) ..................................................................................................................... 15 

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

 19 F.3d 42 (D.C. Cir. 1994) ...................................................................................................................... 17 

Texas v. EEOC, 

 933 F.3d 433 (5th Cir. 2019) ..................................................................................................................... 19 

TransUnion LLC v. Ramirez, 

 594 U.S. 413 (2021) .................................................................................................................................... 16 

Utah v. Evans, 

 536 U.S. 452 (2002) .................................................................................................................................... 27 

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Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 

 454 U.S. 464 (1982) .................................................................................................................................... 16 

Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 

 576 U.S. 200 (2015) ............................................................................................................................. 38, 40 

Winter v. Nat. Res. Def. Council, Inc., 

 555 U.S. 7 (2008) ........................................................................................................................... 16, 30, 45 

ZeptoLab UK Ltd. v. Commonwealth Toy & Novelty Co., 

 2012 WL 4761501 (S.D.N.Y. Aug. 23, 2012) ......................................................................................... 27 

Statutes

22 U.S.C. § 2651 .......................................................................................................................................... 4, 42 

22 U.S.C. § 2656 .......................................................................................................................................... 4, 42 

22 U.S.C. § 2656 note (Global Engagement Center) ................................................................... 4, 5, 42, 48 

5 U.S.C. § 704 ................................................................................................................................................... 41 

5 U.S.C. § 706 ............................................................................................................................................ 41, 43 

Act of Oct. 21, 1976, Pub. L. No. 94-574, § 1, 90 Stat. 2721 (codified at 5 U.S.C. § 702 (1982)) ....... 44 

Tex. Civ. Prac. & Rem. Code Ann. § 143A ................................................................................................. 17 

Other Authorities

Becera, https://perma.cc/5V8K-MKVJ ........................................................................................................ 8 

Br. for the Petitioners, Murthy v. Missouri, No. 23-411 (2023) ................................................................... 33 

Rules

Fed R. Civ. P. 12(b)(1)..................................................................................................................................... 15 

Fed. R. Civ. P. 65(d)(1) ............................................................................................................................. 46, 47 

Constitutional Provisions

U.S. Const. art. III, § 2 .................................................................................................................................... 16 

Executive Materials

Exec. Order 13721 (Mar. 14, 2016) ................................................................................................................. 4 

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INTRODUCTION 

 In this case, two press outlets, the Daily Wire and Federalist Media (Media Plaintiffs), as well 

as the state of Texas, allege that the State Department and one of its offices, the Global Engagement 

Center (GEC), have engaged in “one of the most egregious government operations to censor the 

American press in the history of the nation.” Complaint at 1, ECF No 1. Plaintiffs’ allegations of a 

widespread government censorship regime are laden with hyperbole and lack any factual support or 

basis in the law. 

GEC is an office tasked by Congress with an essential foreign policy mission to respond to 

urgent, novel, and rapidly evolving threats from disinformation campaigns waged by America’s foreign 

adversaries. As used here, “disinformation” is false or misleading information that is created and 

spread with the intent to deceive. Foreign state actors such as Russia, China, and their respective state 

media entities, and foreign non-state actors such as foreign terrorist organizations, utilize 

disinformation to destabilize societies and to strategically advance their policy goals, including, in some 

cases, military action. GEC carries out its mandate to combat such foreign state and non-state 

disinformation through a number of statutorily-defined activities, including by facilitating the federal 

government’s use of technology. In short, Congress recognized that technology is critical to GEC’s 

mission because the overwhelming majority of disinformation from foreign state and non-state actors 

is spread online. Countering such disinformation therefore requires understanding how technology 

can be harnessed to address the threat.

Plaintiffs allege that GEC and other entities on its behalf have, in the past, issued grants to 

and otherwise “promoted” two private companies. Those companies have created products that 

evaluated the veracity and reliability of information reported by Media Plaintiffs (among many other 

news organizations). Plaintiffs further allege that other unidentified third parties—businesses and social 

media companies—license those products and use them to make decisions about where to spend 

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advertising dollars or how to prioritize content on their websites in a way that harms Media Plaintiffs’ 

businesses, causes them to self-censor, and interferes with Texas’s ability to enforce a currently 

enjoined state law that regulates content-moderation decisions by social media companies. 

Plaintiffs’ claims suffer from a central Article III problem—they depend entirely on a sequence 

of independent actions by private third parties who are not before the Court. As a threshold matter, 

the complaint should be dismissed for lack of jurisdiction. Even accepting the complaint’s allegations 

as true, the “speculative chain of possibilities” that they describe cannot establish any injury-in-fact 

that is “certainly impending” and traceable to Defendants’ conduct or redressable by this Court. 

Plaintiffs’ theory of standing also cannot survive a factual attack under Rule 12(b)(1), because multiple 

links in their alleged causal chain are conclusively contradicted by the record. Foremost, GEC’s 

funding and support to the only two private entities that Plaintiffs identify—the Global 

Disinformation Index and NewsGuard—focused exclusively on developing technologies to combat 

foreign malign disinformation aimed at undermining the policies, security, or stability of the United 

States and its foreign allies and partners overseas. That funding did not support those entities’ separate 

products that purportedly caused Plaintiffs’ injuries. Texas independently lacks standing for multiple 

reasons. Plaintiffs fail to explain how Defendants’ funding of technology aimed at countering foreign 

disinformation has interfered with Texas’s ability to enforce a law that regulates the content on social 

media platforms. Nor have Defendants interfered with Texas’s ability to enforce a statute that has 

never been in effect, because it has been enjoined. 

Even if Plaintiffs could survive dismissal under Rule 12(b)(1), they cannot prevail on any of 

the preliminary injunction factors. First, Plaintiffs are not suffering any current or impending 

irreparable harm. Even if they were injured by any past actions by GEC (they were not), past injuries 

alone are not a basis for injunctive relief. Moreover, their significant delay in seeking this emergency 

relief weighs against a finding of imminent, irreparable harm. Second, Media Plaintiffs are unlikely to 

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succeed on their claims. Plaintiffs have not come close to the “clear showing” of Article III standing 

required for a preliminary injunction. They are unlikely to succeed on the merits of their First 

Amendment claims because they have failed to demonstrate that Defendants violated or imminently 

will violate Media Plaintiffs’ First Amendment rights. GEC funded projects solely addressing foreign 

malign disinformation—projects that did not implicate either the First Amendment or any speech by 

Media Plaintiffs. Indeed, the evidence shows that Plaintiffs’ challenges center on the actions of private 

actors and have nothing to do with the identified projects funded by GEC. Nor have they 

demonstrated the requisite connection between the government’s conduct and the conduct of private 

parties sufficient to convert any private conduct into government action. Plaintiffs are also unlikely to 

succeed on their Administrative Procedure Act (APA) or ultra vires claims, because they have not 

challenged an identifiable final agency action or demonstrated that GEC has taken any action outside 

its statutory mandate. Finally, the balance of equities and public interest weigh heavily against 

emergency relief, as Plaintiffs’ proposed injunction would chill a wide range of legitimate and essential 

government activity in the foreign affairs and national security arena. 

STATEMENT OF ISSUES 

1. Should Plaintiffs’ complaint be dismissed for lack of subject-matter jurisdiction? 

2. Are Plaintiffs entitled to the extraordinary remedy of a preliminary injunction? 

BACKGROUND 

I. Legal and Factual Background 

A. Congress tasked the State Department’s “Global Engagement Center” with 

exposing and countering foreign state and non-state propaganda and 

disinformation aimed at undermining or influencing the policies, security, or 

stability of the United States and its allies. 

Disinformation is false or misleading information that is deliberately created or spread with 

the intent to deceive or mislead. Decl. of Daniel Kimmage, Principal Deputy Coordinator, Glob. 

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Engagement Ctr., U.S. Dep’t of State ¶ 5 (“Kimmage Decl.”) (Ex. 1). Disinformation and propaganda 

from foreign state and non-state actors—or “[f]oreign information manipulation”—is a quick and 

relatively cheap way for countries such as Russia and China to destabilize societies, including the 

United States and its allies. Id. ¶¶ 5-6; 22 U.S.C. § 2656 note (Global Engagement Center). It is thus a 

major national security concern to the United States. See Kimmage Decl. ¶ 5; 22 U.S.C. § 2656 note 

(Global Engagement Center). For example, disinformation is one of Russia’s most important and farreaching tools in support of its full-scale invasion of Ukraine. Kimmage Decl. ¶ 5. Russia’s intelligence 

services are able to operate and influence websites that present themselves as news outlets to spread 

lies and sow discord. Id. ¶ 6. Similarly, China invests billions of dollars annually on its foreign 

information manipulation efforts. Id. ¶ 7. 

 Congress entrusted the State Department, led by the Secretary of State, with the management 

of foreign affairs. See 22 U.S.C. § 2651 (codifying the establishment of the State Department); id. § 

2656. Recognizing the need for government action to counter disinformation from foreign state and 

non-state actors, Congress directed the Secretary of State to establish the “Global Engagement 

Center” within the Department.1 See 22 U.S.C. § 2656 note (Global Engagement Center). GEC’s 

mission is to “direct, lead, synchronize, integrate, and coordinate efforts of the Federal Government 

to recognize, understand, expose, and counter foreign state and non-state propaganda and 

disinformation efforts aimed at undermining or influencing the policies, security, or stability of the 

United States[, its] allies[,] and partner nations.” Id.

 GEC plays an essential role in coordinating U.S. government efforts and leading the global 

response to such foreign information manipulation. Kimmage Decl. ¶ 8. A central part of this effort 

1

Beforehand, in 2016, the President signed an executive order which developed the Global 

Engagement Center for a more limited focus. See Exec. Order 13721 (Mar. 14, 2016). Under that 

executive order, GEC supported government-wide counterterrorism communications activities 

directed abroad. See id. 

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is understanding the technologies that support the spread of foreign disinformation and propaganda 

and how technology can be harnessed to counter such spread. Id. GEC carries out its statutory mission 

to counter propaganda and disinformation from foreign state and non-state actors along five lines of 

effort: (1) analytics and research, (2) international partnerships, (3) programs and campaigns, (4) 

exposure, and (5) technology assessment and engagement. Id. ¶ 4. Through these means, GEC’s 

Russia, China, Iran, and Counterterrorism teams seek to build societal and institutional resilience 

against foreign propaganda and disinformation abroad. See id. 

 One of the statutorily-defined functions of GEC is to “[f]acilitate the use of a wide range of 

technologies and techniques by sharing expertise among Federal departments and agencies, seeking 

expertise from external sources, and implementing best practices.” See 22 U.S.C. § 2656 note (Global 

Engagement Center). In furtherance of this function, GEC’s Technology Engagement Team (TET) 

identifies, assesses, tests, and implements technology to address the problem of foreign propaganda 

and disinformation. Kimmage Decl. ¶ 10. TET has historically carried out this mission through several 

initiatives. Id. ¶ 11. Its Tech Demo Series, for example, was a forum for private sector companies to 

present their technologies to an audience of U.S. government and foreign government officials, and 

explain how these technological tools could be used to counter foreign state and non-state information 

manipulation. Id. Invitations to present at a Demo were not endorsements of the company’s 

technological tools, but rather an opportunity for government officials to discuss how the tools could 

be used to advance their missions. Id. For example, during one Demo, an academic institution 

presented an experimental artificial intelligence algorithm to analyze country-level censorship 

technology in places like China and Iran. Id. The Tech Demo Series ended in summer 2023 when 

GEC determined that it was no longer a critical effort, as it balanced limited resources and competing 

priorities. Id. ¶ 21. 

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Relatedly, GEC engages in short-term collaborations with other federal agencies through 

TET’s “testbeds.” Id. ¶ 11. In a testbed, GEC and another U.S. government entity work to identify a 

technological gap that exists for that entity in countering foreign information manipulation, and a 

potential technological solution to fill that gap. Id. Thereafter, those participants execute a statement 

of work outlining the objective of the testbed, the expectations of the participants, and stated 

deliverables for that test; and jointly evaluate the work performed. Id. 

Similarly, TET hosts international tech challenges, which are typically one-or-two-day public 

events held abroad to develop partnerships with technology entities based outside the United States. 

Id. GEC, either directly or through a third-party implementer (such as a grantee or contractor), invites 

technologists from a specific country or region to submit applications to present innovative solutions 

to counter foreign information manipulation overseas to a panel of judges and an audience of 

government, civil society, private sector, and academic stakeholders. Id. Up to three awardees are 

selected to receive an award from GEC—such as a grant, contract, subgrant, or subcontract—to 

perform a short-term project in accordance with conditions outlined in a statement of work. Id.

GEC catalogued and compiled its assessments of these technologies in a grantee-maintained 

open-source, unclassified platform called Disinfo Cloud, a repository to catalog technologies to 

counter foreign propaganda and disinformation. Id. Specifically, testbed results were posted on the 

Disinfo Cloud platform primarily for use by U.S. government agencies and foreign partners. Id. ¶ 14. 

Finally, GEC has a private sector engagement portfolio to facilitate collaboration between U.S. 

government and the tech sector, academia, and the research community, on the topic of foreign 

information manipulation overseas. Id. ¶ 11. Generally, the engagement focuses on trends, tactics, and 

techniques in foreign information manipulation. GEC’s practice when sharing information with social 

media companies is not to request that the companies take any specific actions on the information. Id.

The individual who led this effort from 2019 to 2022 worked from Silicon Valley. Id. 

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B. GEC carried out various initiatives through a grant to Park Advisors. 

 Congress specifically vested GEC with the authority to provide grants or contracts of financial 

support to “civil society groups, media content providers, nongovernmental organizations, federally 

funded research and development centers, private companies, or academic institutions.” 22 U.S.C. 

§ 2656 note (Global Engagement Center). Such grants can be made, inter alia, “to support efforts by 

[GEC] to counter efforts by foreign entities to use disinformation and propaganda to undermine or 

influence the policies, security, and social and political stability of the United States and United States 

allies and partner nations.” Id. § f(1)(D). 

 Thus, to further its mandate of recognizing and countering foreign state and non-state 

propaganda and disinformation, GEC awarded an approximately three million dollar grant to Park 

Capital Investment Group LLC (Park Advisors) in September 2018 “to test and engineer novel 

technological solutions—through combination, hybridization, or other applications of existing 

technologies—to the problems of foreign propaganda and disinformation, and rapidly make those 

technologies available for use by partners.”2

 Kimmage Decl. ¶ 13. Park Advisors was a firm that 

managed public-private projects with a particular emphasis on combating violent extremism and 

disinformation. Decl. of Matthew Skibinski, General Manager, NewsGuard Technologies, Inc. ¶ 22 

(Skibinski Decl.) (Ex. 2). GEC awarded additional funding to Park Advisors through various costs 

amendments. Kimmage Decl. ¶ 13. At the conclusion of the award’s performance period, the award 

totaled approximately $6.5 million. Id.

2

 Contracts and grants are managed and monitored by GEC in accordance with applicable law, 

including applicable federal regulations, and Department policy. Kimmage Decl. ¶ 12. In 

implementing a GEC grant or contract, the recipient entity (prime recipient) may make subawards, by 

grant or contract as appropriate to other entities (subrecipients). Id. The prime recipient is responsible 

for monitoring the activities of the subrecipient, ensuring that such activities are carried out in a 

manner consistent with the relevant prime award, and providing relevant information concerning 

subrecipient compliance to GEC. Id.

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 Pursuant to its grant, Park Advisors administered the Testbed initiative and International Tech 

Challenges described above. Id. ¶¶ 14, 17. It also launched the now-retired Disinfo Cloud in August 

2019. Id. By the end of 2021, Disinfo Cloud listed 366 tools and technologies relevant to countering 

foreign information manipulation. Id. ¶ 20. Additionally, in December 2020, Park Advisors established 

a weekly newsletter, Disinfo Cloud Digest, to provide the user community with updates related to 

Disinfo Cloud. Id. Park Advisors also created a Twitter account for Disinfo Cloud. Id. GEC’s use of 

Disinfo Cloud ended in December 2021, and GEC no longer has access to it.3 Id. ¶¶ 11, 14. 

Park Advisors, in execution of the GEC grant, made subawards to two subrecipients. 

1. 2020 subgrant to NewsGuard to understand the origins, content and spread of 

Russian and Chinese disinformation campaigns. 

 In 2020, the Department of Defense’s National Security Innovation Network (NSIN) hosted 

the Countering Disinformation Challenge. See Skibinski Decl. ¶ 21. The challenge sought innovative 

tools to identify misinformation and disinformation online in near real time, in response to Russia’s 

and China’s efforts to promote COVID-19 disinformation. Id. 

One of the participants in that challenge was NewsGuard Technologies, Inc. (NewsGuard). 

Id. NewsGuard is a for-profit organization that sells a browser extension that provides ratings and 

reviews of the reliability of different news sources next to links users encounter on social media sites 

or search engines. Id. ¶ 4. It was launched in 2018 with the aim of providing news consumers with 

detailed assessments of the reliability of news sources they might encounter on the Internet. Id. ¶ 3. 

As one of the winners of the Countering Disinformation Challenge, NewsGuard received a 

$25,000 subaward from Park Advisors to conduct a pilot in collaboration with GEC and in support 

3

 After GEC’s contract with Park Advisors ended, the Testbeds and International Tech Challenges 

initiatives continued, first through a subcontract with the consultancy company Becera, and now 

directly under GEC. Kimmage Decl. ¶ 21. According to its website, Becera is a consultancy that 

“bridges the public and private sectors to create innovative approaches that solve operational, 

governance, and administrative challenges through technology discovery and application.” See Becera, 

https://perma.cc/5V8K-MKVJ. 

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of the Department of Defense’s Cyber National Mission Force (CNMF) as part of the Testbed 

initiative. See id. ¶ 21; Kimmage Decl. ¶ 15. NewsGuard’s work with GEC and CNMF was coordinated 

by Park Advisors, see Skibinski Decl. ¶ 22, and the funding allowed NewsGuard to help GEC and 

United States Cyber Command (USCYBERCOM), the unified combatant command for the 

cyberspace domain, to better understand the origins, content, and spread of Russian and Chinese 

disinformation campaigns, Kimmage Decl. ¶ 15. This project lasted four months and concluded in 

early 2021. Id. 

Throughout the project, Park Advisors made clear that its focus was limited to monitoring 

foreign state-sponsored sources of disinformation—with no focus on domestic news sources. 

Skibinski Decl. ¶ 25. On October 6, 2020, NewsGuard received an initial draft scope document for 

the pilot that stated, “These tests will provide evaluation and visualization of trends in state sponsored 

information and will be a collaboration between three companies: PeakMetrics, Omelas, and 

NewsGuard. During the course of the tests, all three companies will take care to minimize data 

collection on U.S. Persons, focusing primarily on tracking foreign adversarial actors and narratives.”

Id. ¶ 26. Then, on October 30, 2020, after discussions with Park Advisors, NewsGuard agreed to a 

Statement of Work explaining the scope of the project: 

A series of reports that will help the GEC, USCYBERCOMMAND, and relevant 

partners better understand the origins, content, and spread of state-sponsored 

disinformation campaigns. . . . The focus of the reports will vary based on emerging 

events but will include insights on the following to the extent possible, tracking over 

time: 1) Which states are actively pushing certain narratives ahead of and after the 2020 

U.S. elections with an aim to undermine the U.S.? (with an initial focus on examining 

Chinese and Russian state media) 2) What are these key narratives being amplified? 3) 

What broader disinformation themes and content are being pushed by China and 

Russia? 

Id. ¶ 27. Even after the Statement of Work was signed, Park Advisors clarified that NewsGuard would 

be focused on monitoring Chinese state-sponsored media outlets and Russian outlets. See id. ¶¶ 28–

30. 

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 During the project, NewsGuard had approximately weekly calls with GEC, CNMF, and the 

other companies. Id. ¶ 31. The companies would send reports on their findings from monitoring 

Russian and Chinese state media ahead of the call. Id. The participants on these calls did not discuss 

domestic media sources in the context of mis- or disinformation, nor did any of NewsGuard’s reports 

mention anything about the credibility or possible publication of misinformation by domestic media 

sources. Id. ¶ 32. 

 GEC does not have any ongoing grants, contracts, or subawards with NewsGuard and is not 

otherwise doing any work with it. Kimmage Decl. ¶ 19. 4

2. 2021 subgrant to Global Disinformation Index, Ltd. to add foreign language 

capabilities to its existing technology. 

 In 2021, Park Advisors, through its grant from GEC, hosted the “U.S.-Paris Tech Challenge.” 

Kimmage Decl. ¶ 17. This event, which took place in Paris, aimed to advance the development of 

promising and innovative technologies against foreign information manipulation. Id. To that end, Park 

4

 Although not mentioned by Plaintiffs, NewsGuard received a second subaward after applying for a 

“call for submissions” from GEC’s TET in December 2021 for projects focused exclusively on 

applying technology to countering foreign disinformation. Skibinski Decl. ¶ 33. NewsGuard’s initial 

proposal was determined unlikely to yield results, and it did not complete the work to which it initially 

agreed. Id. But through that process, NewsGuard was connected to the State Department’s Venezuela 

Affairs Unit, which was interested in whether NewsGuard’s data could help trace Russian statesponsored false narratives spreading in Latin America through Venezuelan media outlets. Id. 

Ultimately, NewsGuard monitored Venezuelan domains that regularly spread Kremlin-sponsored 

disinformation and 25 additional news and information websites with high readership throughout 

Latin America—including Spanish publications owned and operated by authoritarian governments 

such as Russia and Iran and websites operating from other Latin American countries. Id. The project 

did not involve any rating or monitoring of U.S.-based news outlets and was used for countering 

disinformation and propaganda overseas. Id. This work, and the $25,000 subaward in 2020 described 

above, represent the only work done by NewsGuard in connection with the Park Advisors 

grant. Kimmage Decl. ¶ 16. 

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Advisors awarded subgrants to companies addressing foreign-sourced disinformation circulating 

overseas; no subgrant was given to address disinformation in the United States. Id. 

 Park Advisors awarded one subgrant to the Disinformation Index, Ltd. (GDI). GDI is a 

United Kingdom-based non-profit company that provides independent, neutral disinformation risk 

data to digital advertisers around the world, enabling them to make more informed brand safety 

decisions regarding their open-web programmatic advertising purchases. Decl. of Dr. Daniel Rogers, 

Co-founder and Director, Disinformation Index, Ltd. ¶ 2 (“Rogers Decl.”) (Ex. 3). GDI Ltd. is based 

in the United Kingdom. Its affiliate, Disinformation Index, Inc., (GDI Inc.) is based in the United 

States. Id. ¶ 6. 

Park Advisors granted the London-based GDI Ltd. $100,000 to expand its disinformation risk 

measurement to a broader set of countries in East Asia and Europe—i.e., countries within China’s and 

Russia’s spheres of influence—to enable advertisers in those markets to make informed brand safety 

decisions about where they were buying advertisements. Id. ¶ 4; Kimmage Decl. ¶ 18. GDI used the 

$100,000 subgrant to add language capabilities (Chinese, Japanese, Korean, Vietnamese, Russian, and 

Ukrainian) to its existing technology and to train GDI’s artificial intelligence technology on culturally 

relevant adversarial narratives for use in risk measurement for locations outside of the United States. 

Rogers Decl. ¶ 5. GDI also used its subaward to train its program with specific disinformation content 

identified in those languages to help improve the model’s performance in translating that type of 

content at scale. Id. GDI did not use any part of its funding to evaluate media entities in the United 

States. Id. ¶¶ 6–7. 

This subgrant funded GDI’s activities for just three months, and its activities concluded on 

December 31, 2021. Kimmage Decl. ¶ 18. It was the only grant that Park Advisors gave GDI under 

the GEC grant. Id.. GDI was never a part of the engagement initiative in Silicon Valley as part of this 

subgrant. Rogers Decl. ¶ 11. And beyond this subgrant, a single mention in the Disinfo Cloud Digest, 

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and a single retweet on the Disinfo Cloud Twitter account, GDI had no further connection to Disinfo 

Cloud. Id. ¶ 10. GEC does not have any ongoing grants, contracts, or subawards with GDI and is not 

otherwise doing any work with it. Kimmage Decl. ¶ 19. 

C. NewsGuard’s and GDI’s other business. 

Outside their work with GEC, NewsGuard and GDI each conduct other business. 

1. NewsGuard’s “Nutrition Labels” and “Misinformation Fingerprints” Products 

 NewsGuard has developed several products to provide news consumers with detailed 

assessments of the reliability of news sources and to alert consumers to misinformation. Skibinski 

Decl. ¶¶ 5–20. These products act as alternatives to blocking or censoring content that may contain 

misinformation. Id. ¶ 41.

 First, NewsGuard created “Nutrition Labels” which was first published in August 2018. Id. 

¶ 14. Nutrition Labels use nine apolitical criteria to rate the reliability of news sources, giving sites a 

ranking on a scale of 0-100. Id. ¶¶ 5–6. Sites with scores over 60 are viewed as credible. Id. ¶ 10. These 

results are then shared with the publisher and made available to NewsGuard clients and through 

NewsGuard’s browser extension to NewsGuard users. Id. ¶ 9. Some companies license this product 

to decide where to buy advertisement space. Id. ¶ 12. Different brands and advertisers have different 

brand-safety standards and have therefore reported using NewsGuard’s ratings data in different ways, 

though many advertisers use a score of 60 as a threshold of when to advertise with a news site. Id.

The Daily Wire and The Federalist both have Nutrition Labels. Id. ¶ 14. Since 2021, the Daily 

Wire’s score has been increasing. Id. ¶ 38. In 2023, the site achieved a score of 69.5. Id. This means 

NewsGuard rates the Daily Wire as a “credible” news source. Id. The Federalist’s NewsGuard rating 

has stood at 12.5 points since 2018. Id. ¶ 39. Nobody from GEC, CNMF, or any other government 

agency was in any way involved in or funded these determinations. Id.

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 NewsGuard also launched a product called “Misinformation Fingerprints” in 2020. Id. ¶ 16. 

Misinformation Fingerprints is a catalog of significant false claims circulating online, with a focus on 

state-sponsored false narratives from Russia, China, and Iran. Id. NewsGuard provides a report of 

how it finds claims to be false and the evidence it considered, enabling users to make their own 

determinations as to the claim’s veracity. Id. The Misinformation Fingerprints product does not rate 

the credibility of news publishers, nor does it direct the placement of advertisements. Id. Instead, 

NewsGuard licenses Misinformation Fingerprints to industries such as cyberdefense firms, reputation 

management firms, the defense and intelligence communities, and some social media platforms (to 

allow users to verify the veracity of content before publishing their own posts). Id. ¶ 18. Like Nutrition 

Labels, the Misinformation Fingerprints product was created independently by NewsGuard; neither 

GEC nor the CNMF nor any other government agency was involved in its development. Id. ¶ 17. 

NewsGuard’s revenue comes from Internet Service Providers, browsers, search engines, social 

platforms, education providers, advertising agencies, brand safety providers, researchers, and others 

paying to use NewsGuard’s products. Id. ¶ 4. NewsGuard did not use its grant funding from GEC, or 

any other government funding, to rate news sources or debunk any specific narratives. Id. ¶ 37.

2. GDI’s Dynamic Exclusion List 

GDI provided disinformation risk data to digital advertisers around the world through several 

projects. See Rogers Decl. ¶ 2. For example, GDI’s United States affiliate, Disinformation Index, Inc., 

runs a “Dynamic Exclusion List.” Id. ¶ 7. The Dynamic Exclusion List is a non-public source that 

identifies publications with a risk of spreading disinformation. Id. ¶ 8. It is updated monthly. Id. GDI 

Inc. does not have the ability to “blacklist” organizations through the list. Id. ¶ 6. Rather, it provides 

data to advertising buyers, who make their purchasing decisions. Id. The Dynamic Exclusion List is 

not funded by the State Department or GEC, nor were any of the funds from the U.S.-Paris Tech 

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Challenge (which were awarded to the London-based GDI Ltd.) put towards the Dynamic Exclusion 

List. Id. ¶ 7.

In November 2022, GDI also published a Disinformation Risk Assessment Report for the 

United States. Id. ¶ 8. In that report, GDI included a list of the ten least risky and the ten most risky 

of sixty-nine news sites manually reviewed for the purposes of that report. Id. Plaintiffs were identified 

among the ten most risky. Id. The report is completely independent of the Dynamic Exclusion List. 

Id. There is no correlation between risk as identified in the report and any site’s inclusion in or 

exclusion from the Dynamic Exclusion List. Id. GDI funded its 2022 Assessment Report with private 

funds. Id. ¶. And GDI covers all of its infrastructure costs through private sources of funding. Id. ¶ 7. 

II. This Litigation 

 Plaintiffs are two media organizations, The Daily Wire and The Federalist, and the State of 

Texas. Compl. ¶¶ 13, 39, 41. They filed their complaint on December 6, 2023 against the State 

Department; GEC; and a number of State Department officials in their official capacities (collectively, 

“Defendants”). Id. ¶¶ 15–22. Plaintiffs allege that Defendants encouraged the development of 

“Countering Propaganda and Disinformation” (CPD) technologies by private third parties, which 

advertisers and social media companies in turn purportedly used to restrict the Media Plaintiffs’ 

speech. See id. ¶¶ 3, 65. Texas argues separately that Defendants’ alleged actions interfere with its 

enforcement of a (presently enjoined) state law that regulates social media companies’ contentmoderation decisions. See id. ¶¶ 234–35. 

 Two months after filing their complaint, and upon receiving notice of Defendants’ intent to 

file a motion to transfer venue, see Defs.’ Mot. to Stay Deadlines to Respond to the Compl. & Pls.’ 

Forthcoming Mots. for Prelim. Inj. & Expedited Disc., ECF No. 8,5 Plaintiffs filed a Motion for 

5

 The Court granted in part and denied in part Defendants’ motion to stay their deadlines. See Order 

Granting-in-Part & Denying-in-Part Mot. to Stay at 1, ECF No. 15. It denied the motion with respect 

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Preliminary Injunction (Plaintiffs’ Motion) on February 6, 2024. See Mot. for Prelim. Inj., ECF No. 11 

(PI Mot.). The next day, Plaintiffs filed their Motion to Expedite Discovery. See Mot. for Expedited 

Prelim.-Inj.-Related Disc., ECF No. 13. That motion is now fully briefed. See Defs.’ Opp’n to Mot. 

for Expedited Prelim.-Inj.-Related Disc., ECF No. 20; Pls.’ Reply in Supp. of Mot. for Expedited 

Prelim.-Inj.-Related Disc., ECF No. 23. On February 9, 2024, Defendants filed a motion to transfer 

venue. See Defs.’ Mot. to Transfer Venue, ECF No. 14. Plaintiffs filed their response on March 14, 

2024. See Pls.’ Resp. to Defs’ Mot. to Transfer Venue, ECF No. 25. 

LEGAL STANDARDS 

A plaintiff’s failure to establish jurisdiction, including its standing, warrants dismissal under 

Rule 12(b)(1). Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). 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 motion to dismiss for lack of standing may be either ‘facial’ or 

‘factual.’” Superior MRI Servs., Inc. v. All. Healthcare Servs., Inc., 778 F.3d 502, 504 (5th Cir. 2015).6 Under 

a facial attack, the court assesses whether the plaintiff has sufficiently alleged standing, accepting the 

complaint’s allegations as true. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). On the other 

hand, an attack is “factual . . . if the defendant submits affidavits, testimony, or other evidentiary 

materials” to challenge the truth of those allegations. Superior MRI Servs., 778 F.3d at 504. “To defeat 

a factual attack, a plaintiff must prove the existence of subject-matter jurisdiction by a preponderance 

of the evidence” through evidence of its own. Id.

“A preliminary injunction is an extraordinary and drastic remedy” that is “never awarded as of 

right.” Munaf v. Geren, 553 U.S. 674, 689–90 (2008). A plaintiff may obtain this “extraordinary remedy” 

to staying Defendants’ deadlines in response to Plaintiffs’ motion for a preliminary injunction and 

motion for expedited preliminary-injunction discovery. Id. But it granted a forty-five-day extension of 

Defendants’ deadline to respond to Plaintiffs’ complaint. Id. 

6

 Internal quotation marks and citations are omitted throughout this brief, unless noted. 

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only “upon a clear showing” that it is “entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 

U.S. 7, 22 (2008). The plaintiff must show (1) “a substantial threat of irreparable injury,” (2) “a 

substantial likelihood of success on the merits,” (3) “that the threatened injury if the injunction is 

denied outweighs any harm that will result if the injunction is granted,” and (4) “that the grant of an 

injunction will not disserve the public interest.” Jordan v. Fisher, 823 F.3d 805, 809 (5th Cir. 2016). The 

plaintiff must “clearly carr[y] the burden of persuasion on all four requirements.” Id. A plaintiff’s 

burden is even higher where, as here, it seeks a preliminary injunction that would alter the status quo. 

See, e.g., Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976) (such injunctions are “particularly 

disfavored”). 

ARGUMENT 

I. The Court should dismiss this case for lack of jurisdiction. 

Article III limits the judicial power to deciding “Cases” and “Controversies,” U.S. Const. art. 

III, § 2, which ensures that federal courts do not become “forums for the ventilation of public 

grievances,” Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 

473 (1982). As part of that limitation, a plaintiff must demonstrate three elements to meet the 

“irreducible constitutional minimum of standing,” Lujan, 504 U.S. at 560–61: (1) “injury in fact,” (2) 

“that is fairly traceable to the challenged conduct of the defendant,” and (3) “likely to be redressed by 

a favorable judicial decision,” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). 

“[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, 432 (2021). And 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; accord Hotze v. Burwell, 784 F.3d 984, 995 (5th Cir. 

2015). Finally, to obtain prospective relief, it is not enough to allege past injury. City of L.A. v. Lyons, 

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461 U.S. 95, 102 (1983); O’Shea v. Littleton, 414 U.S. 488, 495–96 (1973). Rather, a plaintiff must face 

a “real and immediate threat” of ongoing or future harm. Lyons, 461 U.S. at 102. 

Plaintiffs’ complaint cannot survive either a facial or factual motion to dismiss for lack of 

jurisdiction. They have not alleged facts that, even if true, would support Article III standing as 

required for injunctive relief. Moreover, those allegations are contradicted by the evidence Defendants 

have submitted with this motion. 

A. Texas lacks standing. 

Texas’s sole basis for standing is its theory that Defendants are “interfering with Texas’s 

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

regulates social media companies’ content-moderation decisions. See PI Mot. at 20; Compl. ¶¶ 234–

239. Relevant here, HB 20’s content-moderation provisions restrict social media companies’ choices 

about whether and how to present content to the public. See Tex. Civ. Prac. & Rem. Code Ann. 

§ 143A. Texas alleges that, by working with GDI and NewsGuard, which market technology to social 

media companies, which in turn decide whether to use that so-called “censorship” technology, 

Defendants “induce social media companies to violate HB 20.” Compl. ¶ 237. This “inducement” 

theory is incomplete, because it does not explain why any of the alleged conduct here would prevent 

a social media company from complying with HB 20’s content-moderation restrictions. That is, if HB 

20 prohibits a social media company from using a particular technology in a particular way, then the 

company can simply choose not to use that technology as such. Texas’s theory of standing fails for 

that simple reason. Moreover, if the theory depends on the premise that third-party social media 

companies will use technology created by other third parties to violate state law, that “unadorned 

speculation” plainly does not satisfy Article III traceability. 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”); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 

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n.5 (2013) (“Plaintiffs cannot rely on speculation about the unfettered choices made by independent 

actors not before the court” to establish causation). 

This circuitous theory also lacks merit for the numerous reasons explained in the government’s 

Motion to Transfer Venue (ECF No. 14) at 5–9. Texas has not suffered any injury-in-fact because HB 

20 has never gone into effect, and Texas has therefore never been able to enforce it, nor does Texas 

allege that enforcement is imminent. The law was scheduled to take effect on December 2, 2021, but 

on December 1, 2021, its enforcement was preliminary enjoined. NetChoice, LLC v. Paxton, 573 F. 

Supp. 3d 1092 (W.D. Tex. 2021).7 Texas’s conclusory allegation that the “injury to [its] sovereign 

interest is continuing and ongoing,” Compl. ¶ 238, without more cannot support injury-in-fact. Ctr. 

for Biological Diversity v. U.S. EPA, 937 F.3d 533, 545 (5th Cir. 2019) (“Article III demands more than . 

. . conclusory assertions.”). Nor are Texas’s injuries redressable, because no order from this Court 

could overturn the Western District of Texas’s current injunction preventing HB 20 from going into 

effect. Finally, even if Plaintiffs had plausibly alleged standing, the record demonstrates that GEC has 

made no efforts to block either public or private enforcement of HB 20, or otherwise interfere with 

compliance with the law, defeating Plaintiffs’ assertions otherwise. Kimmage Decl. ¶ 22. 

Plaintiffs offer several responses in their Reply in Support of Motion for Expedited Discovery 

at 2–3, ECF No. 23, but none is persuasive. First, Plaintiffs note that the Fifth Circuit upheld HB 20’s 

constitutionality and complain that it is Defendants that ask this Court to “inappropriately speculate” 

as to whether the Supreme Court will reverse that decision. But the Fifth Circuit stayed the mandate 

in that case; its judgment has no current legal effect and is therefore immaterial as to whether Plaintiffs 

are injured, whether that injury is traceable to Defendants, or whether that injury is redressable by this 

7

 The Fifth Circuit stayed the injunction, NetChoice, LLC v. Paxton, 2022 WL 1537249 (5th Cir. May 

11, 2022), but the Supreme Court vacated that stay, 142 S. Ct. 1715 (2022), leaving the district court’s 

injunction in place. The Fifth Circuit subsequently decided to vacate the injunction, NetChoice, LLC v. 

Paxton, 49 F.4th 439 (5th Cir. 2022), but stayed its mandate (thus again leaving the injunction in place), 

and the Supreme Court granted certiorari, 144 S. Ct. 477 (2023). 

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Court. It is beyond dispute that Texas has never enforced and cannot currently enforce HB 20. And 

it is Plaintiffs, not Defendants, who ask this Court to speculate because Plaintiffs’ argument rests on 

the assumption that it could be injured in the future if the Supreme Court ultimately permits HB 20 

to go into effect (or that social media companies would choose to violate state law). In any event, 

Plaintiffs’ accusation is a non sequitur that ignores the basic principle that Plaintiffs must clearly 

establish standing; it is not Defendants’ burden to disprove the opposite. 

Second, Plaintiffs make the unadorned assertion that HB 20’s private enforcement provisions 

have never been enjoined. Id. Assuming this is true, Plaintiffs do not explain how Defendants are 

interfering with private parties’ ability to sue social media companies for violations of HB 20 (or have 

ever done so in the past). In any event, Plaintiffs also do not allege that any private parties have ever 

attempted to enforce HB 20 or been dissuaded as a result of Defendants’ actions from doing so. If 

this argument depends on the same assumptions that underlie the “inducement” theory described 

above, this Court should summarily reject it for the reasons already explained. Finally, Plaintiffs 

contend that Texas’s sovereign interests encompass “compliance with its laws,” not merely 

enforcement. But the caselaw that Texas cites does not support such a compliance-enforcement 

distinction.8 Even if it did, Texas has neither alleged nor demonstrated, other than through the 

complaint’s flawed and incomplete inducement theory, that Defendants are interfering with private 

parties’ “compliance” with HB 20.9 

8

 Texas’s citation to Texas v. EEOC, 933 F.3d 433 (5th Cir. 2019), see ECF No. 23 at 3, does not 

support any such distinction because the state law at issue there was plainly in effect and not enjoined. 

Moreover, the federal guidance challenged there threatened civil liability for private parties if they did 

not take action in direct violation of state law—a far cry from the speculative causal chain underlying 

Texas’s inducement theory in this case. 

9

 In their most recent filing, Plaintiffs offer a third theory. They assert, without any explanation, that 

the State Department “interferes” with HB 20’s “transparency” provisions, which require social media 

companies to publicly report instances in which they remove or deprioritize content. Pls.’ Resp. to 

Defs.’ Mot. to Transfer Venue at 5, ECF No. 25. It is entirely unclear how any of the alleged conduct 

in this case would prevent any social media company from complying with that provision of HB 20. 

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B. Media Plaintiffs lack standing. 

Likewise, Media Plaintiffs fall far short of alleging facts that would support Article III standing, 

and in any event, the record firmly contradicts those allegations. Media Plaintiffs assert two purported 

injuries allegedly attributable to Defendants: (i) the loss of advertiser and subscriber revenue and 

readership, and (ii) a First Amendment harm from self-censorship. PI Mot. at 19–20; Compl. ¶¶ 4–5. 

Neither injury is ongoing so as to support prospective injunctive relief, traceable to Defendants’ 

conduct, or redressable by the proposed preliminary injunction. 

Injury-in-fact. As an initial matter, Media Plaintiffs’ claimed injuries occurred in the past, and 

“[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding 

injunctive relief.” O’Shea, 414 U.S. at 495–96; see Lyons, 461 U.S. at 102. Rather, a plaintiff must 

establish a “real and immediate threat of repeated injury.” O’Shea, 414 U.S. at 496. The key activities 

alleged in the Complaint ended years ago, and Plaintiffs do not plausibly allege any current activity 

that causes them ongoing or imminent harm. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In fact, 

many of the complaint’s allegations indicate that any harm was exclusively in the past. See Compl. ¶¶ 

142–44 (one-time grants to GDI and NewsGuard from several years ago); id. ¶¶ 160–61, 167 (alleging 

Disinfo Cloud’s website is no longer publicly accessible); id. ¶ 165 (Park Advisors, which operated 

Disinfo Cloud, has closed). To be sure, they offer a laundry list of vague and generalized grievances 

to support assertions of ongoing harm. For example, they allege that two years-old Twitter posts from 

the Disinfo Cloud account remain online, id. ¶ 161; that Defendants “continue to use” the “research 

and reports” on Disinfo Cloud, id. ¶ 162, without further explanation of how that “research” injures 

them; that Defendants moved “information” from Disinfo Cloud’s website to an unnamed new 

“platform,” id. ¶ 165; that Defendants “continue” to fund “censorship enterprises” (a legal 

conclusion), id. ¶ 170; and that Defendants are performing unspecified work with a new consulting 

company, Becera, again without explaining what that work is or how it harms them, id. ¶¶ 176–78. 

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These allegations, many of which are mere “labels and conclusions,” Iqbal, 556 U.S. at 678, fail to 

coherently articulate any theory of concrete, actual, and ongoing or imminent harm as Article III 

requires for prospective relief. 

Indeed, the record confirms that Plaintiffs suffer no ongoing injury from Defendants’ 

conduct.10 GEC does not have any ongoing grants, contracts, or subawards with GDI or NewsGuard 

and is not otherwise doing any work with those entities. Kimmage Decl. ¶ 19. GEC’s use of Disinfo 

Cloud ended in December 2021, the related Digest was retired at the same time, and the Twitter 

account has remained inactive since then. Id. ¶¶ 11, 20.11 As a result of shifting priorities and evolving 

disinformation threats, GEC has ended many of the initiatives that Plaintiffs speculate are harming 

them here, such as the Tech Demo Series or the presence of a GEC employee in Silicon Valley. Id.

¶ 21. 

Undeterred, Plaintiffs have in recent submissions continued to press their conclusory and 

unsupported claims that “Defendants’ still-ongoing censorship scheme . . . suppresses disfavored 

domestic speech” by funding the development of unspecified “censorship technology and private 

censorship enterprises.” ECF No. 23 at 1. Plaintiffs further speculate, without citation or evidence, 

that the “Silicon Valley office remains in operation” (without explaining why that injures them) and 

that Defendants “use a different platform and contractors” to carry out so-called “blacklisting.” Id. at 

2. These unsupported assertions are contradicted by the evidence cited above. 

Finally, Plaintiffs’ assertions of self-censorship do not support a finding of injury-in-fact. If 

they have not otherwise clearly shown an ongoing or imminently threatened injury, Plaintiffs “cannot 

10 Plaintiffs heavily rely on hearsay within news articles as evidence for their allegations. E.g., PI Mot. 

Exs. F, H–J, U, HH. The Court should give those articles minimal weight in light of Defendants’ 

sworn declarations that contradict the unsupported assertions in those articles. Cf. Mood v. Cnty. of 

Orange, 2019 WL 13036027, at *2–5, 7–8 (C.D. Cal. July 25, 2019) (news article containing hearsay less 

reliable than sworn testimony). 

11 The Tweets that Plaintiffs reference are years old and do not even mention Media Plaintiffs; they 

are patently insufficient to provide the basis for any ongoing injury to them. 

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manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical 

future harm that is not certainly impending.” Clapper, 568 U.S. at 416. “[A]llegations of a subjective 

‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific 

future harm.” Id. at 418.12 That principle squarely forecloses Plaintiffs’ self-censorship theory of harm, 

which depends on speculation about future actions by Defendants, future unnamed grantees, 

advertisers, and social media companies. 

Traceability. Article III also requires “a causal connection between the injury and the conduct 

complained of.” Lujan, 504 U.S. at 560. “Causation” is not established if Plaintiffs’ alleged “injuries” 

are “the result of the independent action[s] of . . . third party” companies that are “not before the 

court.” Inclusive Cmtys. Project, Inc. v. Dep’t of Treasury, 946 F.3d 649, 655 (5th Cir. 2019). Plaintiffs’ various 

theories of traceability ignore this fundamental principle several times over. 

(1) Consider the grant to GDI. Plaintiffs maintain: (a) GEC, through its grantee Park Advisors, 

gave a one-time $100,000 grant to GDI in a 2021 international technology challenge; (b) GDI used 

that money to develop the Dynamic Exclusion List; (c) Media Plaintiffs are on that List; and 

(d) corporations who subscribe to that List may choose not to advertise based on Media Plaintiffs’ 

(unconfirmed) presence on that List as a result. PI Mot. at 7–9, 13. Even if all these allegations were 

true, this theory of standing fails as a matter of law because it depends on exactly the kind of 

“speculation about the decisions of independent actors” that the Supreme Court has repeatedly 

rejected. Clapper, 568 U.S. at 413–14; Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976) 

(standing cannot be premised upon “injury that results from the independent action of some third 

party not before the court”). 

12 Plaintiffs’ declarations assert, with no explanation, that “[t]he State Department’s promotion of 

technology that blacklists [The Daily Wire/The Federalist] has a chilling effect on the organization.” 

See PI Mot. Exs. MM ¶ 5, NN ¶ 5. This sort of conclusory allegation is patently insufficient to serve 

as evidence of self-censorship. 

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In any event, the record contradicts Plaintiffs’ version of events. Foremost, no part of the 

challenged 2021 grant was used in any way for activities aimed at U.S. media outlets or even in the 

United States at all. Rogers Decl. ¶¶ 4, 6–7; Kimmage Decl. ¶ 18. “GDI” is in fact two distinct legal 

entities: London-based GDI Ltd., and U.S.-based GDI Inc. Rogers Decl. ¶¶ 2, 6. As part of the U.S.-

Paris Tech Challenge, an overseas competition aimed at advancing technologies to combat foreign 

disinformation and propaganda, London-based GDI Ltd. applied for funding to expand its alreadyexisting disinformation risk measurement technology to six foreign languages—Chinese, Japanese, 

Korean, Vietnamese, Russian, and Ukrainian. Id. ¶¶ 4–5. Based on that pitch, GDI Ltd. won the 

$100,000 award and used the money accordingly, that is, to advance its technology to recognize those 

languages and in turn train its artificial intelligence technology on local and culturally relevant 

adversarial narratives in East Asia and Europe. Id. ¶ 5. The project was successful and, as a result, GDI 

Ltd.’s technology is now more effective at identifying dangerous disinformation narratives originating 

in those foreign languages, for the benefit of U.S. interests and public and private entities based 

overseas. Id. Again, that grant was simply not used in any way for the purpose of expanding 

disinformation risk measurement in the United States. Id. The Dynamic Exclusion List—the 

purported source of Media Plaintiffs’ injuries—was created by and is wholly maintained by the U.S.-

based entity, which was not the recipient of the Paris Tech Challenge funds. Id. ¶ 7. The List was not 

funded by the State Department or any State-Department affiliated entity, and GDI’s infrastructure 

costs are borne out of private sources of funding. Id. 

The rest of Media Plaintiffs’ purported causal chain similarly either depends primarily on the 

unrelated actions of third parties (and therefore the allegations fail as a matter of law) or is contradicted 

by the record. Plaintiffs heavily emphasize their inclusion in a one-time report that U.S.-based GDI 

Inc. published in 2022, titled “Disinformation Risk Assessment,” about the domestic online news 

market. Based on their inclusion in that report, they speculate that GDI Inc. included them on the 

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non-public Dynamic Exclusion List, PI Mot. at 8, Compl. ¶¶ 115–16, but Article III demands more 

than guesswork. Indeed, Plaintiffs have failed to allege that a single advertiser or social media company 

has ever made a single decision that harmed them on the basis of this report. For this reason alone, 

Plaintiffs have failed to allege any cognizable injury traceable to Defendants, much less an imminent 

one. 

The record also shows that there is no relationship between the report and the Dynamic 

Exclusion List. Rogers Decl. ¶ 8. Even if the report from U.S.-based GDI Inc. were relevant, 

Defendants had nothing to do with that report, which was supported entirely by private funding. Id. 

And on top of that, Plaintiffs’ theory of resulting economic harm and self-censorship depends on the 

further actions of advertisers and social media companies, some of world’s largest corporations whose 

decisions are governed by market forces and economic incentives wholly unrelated to a grant that 

GEC made to a UK-based company in 2021, which was in turn unrelated in any way to the 2022 GDI 

Inc. report. 

(2) Media Plaintiffs’ theory regarding NewsGuard suffers from the same defects. They 

maintain that: (a) NewsGuard won a $25,000 award during a technology challenge organized by the 

NSIN and GEC; (b) as part of that award, NewsGuard piloted one of its technologies on a GEC 

testbed; (c) NewsGuard maintains a database of ratings of domestic news outlets, in which Media 

Plaintiffs score poorly; and (d) advertisers withhold revenue from them and social media companies 

deprioritize them as a result. Even accepting this narrative on its own terms, Plaintiffs’ fail to explain 

how, in their view, the 2020 NSIN award for a challenge focused on foreign disinformation narratives 

relates to NewsGuard’s domestic news ratings database. And even if that connection were clearly 

explained, this overall theory once again depends entirely on the actions of third parties—advertisers 

and social media companies—that make independent decisions, not at the behest of NewsGuard and 

certainly not as a direct result of anything Defendants have done. 

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At any rate, the record again contradicts Media Plaintiffs’ narrative, primarily because there is 

no connection between NewsGuard’s Nutrition Labels media-rating product and any funding that 

NewsGuard has ever received from Defendants (or any other federal agency). Skibinski Decl. ¶ 22–

24. The facts are this: NewsGuard received a $25,000 subaward from Park Advisors under its GEC 

grant in 2020 in connection with the NSIN-organized foreign disinformation challenge. Id. ¶ 21.13

NewsGuard’s project pursuant to the NSIN challenge focused exclusively on identifying rapidlyevolving, false narratives being spread by foreign state and state-sponsored actors, with a particular 

emphasis on China and Russia, and did not involve monitoring of domestic news sources. Id. ¶¶ 21–

32; Kimmage Decl. ¶ 15. And the testing of NewsGuard technology as part of that award was 

exclusively designed for those national security and foreign affairs purposes. Skibinski Decl. ¶ 25. Put 

simply, NewsGuard did not use any resources from Defendants to create, improve, or implement 

NewsGuard’s Nutrition Labels ratings database. Id. ¶ 24. Finally, NewsGuard first published its ratings 

database in August 2018, years before any of the events alleged in this lawsuit. Id. ¶ 14.14 These facts 

highlight that Plaintiffs’ theory of harm attributable to Defendants’ interactions with NewsGuard lacks 

any evidentiary support. 

(3) Plaintiffs’ remaining attempts to establish some connection between Defendants and their 

purported injuries are even more attenuated, vague, and speculative than those described above. 

13 NewsGuard also worked on a project with the State Department’s Venezuela Affairs Unit to trace 

Russian state-sponsored false narratives spreading in Latin America through Venezuelan media 

outlets. Skibinski Decl. ¶ 33. The project did not involve any rating or monitoring of U.S.-based news 

outlets and was used for countering disinformation and propaganda overseas. Id. This work, and the 

$25,000 subaward in 2020 described above, represent the only work done by NewsGuard in 

connection with the Park Advisors grant. Kimmage Decl. ¶ 16. Plaintiffs do not make any allegations 

regarding this project. 

14 During the period of the grant projects, Daily Wire’s NewsGuard score actually increased by 7.5 

rating points, and from August 2021 to November 2023, the site achieved a score of 69.5. NewsGuard 

describes outlets achieving a score above 60 as “credible,” and 60 is the threshold that many advertisers 

use in deciding whether to advertise on a given news site, although, again, those decisions are made 

entirely by advertisers and not by NewsGuard. Skibinski Decl. ¶ 38. These facts further undermine 

any claimed injury to the Daily Wire traceable to Defendants’ conduct. 

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Plaintiffs allege that Defendants “promoted” GDI, NewsGuard, and other unspecified technologies 

through other means such as the Disinfo Cloud platform and its related Twitter account and News 

Digest, PI Mot. at 6–7, 12; GEC’s engagement with companies based in Silicon Valley, id. at 15; and 

State Department website links to various third-party resources and webpages, some of which in turn 

include GDI and NewsGuard among long lists of other resources, id. at 15–16. 

These allegations are facially inadequate to support Article III traceability, and moreover, the 

evidence contradicts them. As for Disinfo Cloud, GDI’s technology was never included on that 

platform. Rogers Decl. ¶ 9. The fact that the Disinfo Cloud Twitter account and Digest each on one 

occasion referenced GDI’s work in the foreign disinformation space does not remotely connect 

Defendants to Plaintiffs’ purported injuries from domestic advertisers or social media companies. The 

theory that Defendants “promoted” NewsGuard’s domestic news ratings database through either the 

Disinfo Cloud platform, Twitter account, or Digest lacks merit for all the same reasons. As for GEC’s 

interactions with domestic technology companies, Plaintiffs utterly fail to explain how Defendants 

“targeted” American speech by engaging in dialogue with some of the world’s most significant internet 

companies to share information on combating foreign disinformation and propaganda overseas.15

Finally, the notion that Defendants have caused Plaintiffs injury by posting links on a State 

Department website to compilations of disinformation technologies created by private entities, some 

of which include links to GDI’s and NewsGuard’s website, is based on an attenuated causal chain that 

15 Plaintiffs’ allegations are laden with insinuation and conclusory statements that simply do not 

support a plausible claim. For example, the Complaint alleges that American companies were 

“encouraged to join Disinfo Cloud” to identify technological solutions to “counter propaganda and 

disinformation” but does not allege that the companies sought to use, or used, those technologies to 

target U.S. media outlets (let alone Media Plaintiffs). Compl. ¶ 76. Similarly, Plaintiffs allege that GEC 

maintained a Senior Advisor, Samaruddin Stewart, as a Silicon Valley liaison, but, again, do not claim 

that Mr. Stewart ever spoke to American companies about domestic news sources rather than foreign 

malign influence operations. Id. ¶ 78; see also id. ¶¶ 80–82, 85 (no reference to American media). 

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cannot support causation.16

Redressability. For similar reasons, Plaintiffs’ purported injuries are not redressable by the 

injunction they seek, or indeed by any equitable relief directed at Defendants. Plaintiffs ask this Court 

to enjoin Defendants from “continuing to research, assess, fund, test, market, promote, host on its 

government platform, and/or otherwise assist with the development of, or encourage the use of, 

technology” that targets American speech. PI Mot. at 36. But even if Defendants were taking any 

action aimed at suppressing, or even affecting, American speech (they are not), granting that injunction 

would not redress the supposed source of Plaintiffs’ injuries, that is, GDI Inc.’s (purported) and 

NewsGuard’s ratings of Media Plaintiffs, and in turn the decisions of advertisers and social media 

companies that allegedly impact Plaintiffs’ audience sizes and revenues. Simply put, those are 

“unfettered choices made by independent actors not before the court[], and whose exercise of broad 

and legitimate discretion the courts cannot presume either to control or to predict.” Lujan, 504 U.S. 

at 562. It is “pure speculation that any order directed at [Defendants] would affect the behavior of the 

third-party technology companies” such as GDI Inc., NewsGuard, and social media platforms, or of 

blue-chip advertisers, and Article III demands far more.17 Ass’n of Am. Physicians & Surgeons v. Schiff, 

518 F. Supp. 3d 505, 516 (D.D.C. 2021); see Inclusive Cmtys., 946 F.3d at 655; Utah v. Evans, 536 U.S. 

452, 464 (2002). 

Thus, the Court should dismiss Plaintiffs’ complaint for lack of subject matter jurisdiction. 

16 Plaintiffs also argue that the State Department funded a seminar in Germany to train American 

teachers and “instruct[ed] teachers to install NewsGuard.” PI Mot. at 16. These allegations do not 

appear in the complaint and therefore cannot form the basis for a preliminary injunction. ZeptoLab 

UK Ltd. v. Commonwealth Toy & Novelty Co., 2012 WL 4761501, at *7 (S.D.N.Y. Aug. 23, 2012). These 

new allegations also fail to establish traceability because any resulting harm depends entirely on the 

actions of independent third parties. 

17 In Plaintiffs’ own words, “once [GDI’s and NewsGuard’s] technologies are adopted by third parties, 

. . . fashioning injunctive relief to limit the continuing harm will become increasingly challenging.” PI 

Mot. at 34. This concedes that Plaintiffs’ entire theory of harm turns on the actions of third parties 

and that relief from this Court cannot affect, let alone prohibit, those third parties’ future choices. 

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II. Plaintiffs’ Motion for Preliminary Injunction should be denied. 

A. Plaintiffs fail to demonstrate irreparable harm. 

To establish irreparable injury, a plaintiff must demonstrate “a significant threat of injury from 

the impending action, that the injury is imminent, and that money damages would not fully repair the 

harm.” Humana, Inc. v. Jacobson, 804 F.2d 1390, 1394 (5th Cir. 1987). “[A] showing of speculative injury 

is not sufficient; there must be more than an unfounded fear on the part of the applicant.” Janvey v. 

Alguire, 647 F.3d 585, 600 (5th Cir. 2011). For the same reasons that Plaintiffs have failed to establish 

an ongoing or certainly impending future injury-in-fact for purposes of Article III standing, they fail 

to establish non-speculative, imminent irreparable injury. 

Plaintiffs’ arguments otherwise lack merit. First, they contend that if they establish a likelihood 

of success on the merits of their First Amendment claim, they ipso facto satisfy the irreparable harm 

prong for emergency relief. PI Mot. at 34. That is incorrect, because irreparable injury must be 

“imminent”; a past injury, even a constitutional one, does not qualify. As the Fifth Circuit has 

explained, “invocation of the First Amendment cannot substitute for the presence of an imminent, 

non-speculative irreparable injury.” Google, Inc. v. Hood, 822 F.3d 212, 227–28 (5th Cir. 2016). Thus, 

even if Plaintiffs had established a likelihood that Defendants violated their First Amendment rights 

at some point in the past, that still would not relieve them of their burden to demonstrate that they 

either currently, or will in the immediate future, suffer some constitutional injury. 

Second, Plaintiffs claim that “if Defendants are not promptly enjoined, their unconstitutional 

conduct will continue to reduce the Media Plaintiffs’ reach, rendering it all the more difficult, if not 

impossible, to undo the harm flowing from the continued funding and promotion of censorship 

technologies which abridge their First Amendment rights.” PI Mot. at 34 (emphasis added). But 

Plaintiffs have failed to adduce any evidence that Defendants are continuing to fund or promote any 

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specific “censorship technologies,” or that such funding has resulted or is imminently likely to result 

in harm to them. 

Third, Plaintiffs rehash their arguments in a handful of sentences that Media Plaintiffs suffer 

some unspecified irreparable injury from Defendants’ so-called “censorship scheme” and that Texas 

suffers irreparable harm to its sovereign interests from its inability to enforce an already-enjoined state 

law. Id. at 35. These undeveloped arguments fail for the same reasons Plaintiffs lack standing. 

In addition, Plaintiffs’ delay in seeking preliminary relief weighs heavily against any argument 

that they might suffer imminent, irreparable injury absent emergency relief. A party seeking a 

preliminary injunction “must generally show reasonable diligence,” Benisek v. Lamone, 585 U.S. 155, 

159 (2018), and accordingly numerous courts in the Fifth Circuit have held that “[d]elay in seeking a 

remedy is an important factor bearing on the need for a preliminary injunction. Absent a good 

explanation, a substantial period of delay militates against the issuance of a preliminary injunction by 

demonstrating that there is no apparent urgency to the request for injunctive relief.” Anyadike v. Vernon 

Coll., 2015 WL 12964684, at *3 (N.D. Tex. Nov. 20, 2015). “[A]nywhere from a three-month delay to 

a six-month delay [is] enough to militate against issuing injunctive relief.” Leaf Trading Cards, LLC v. 

Upper Deck Co., 2019 WL 7882552, at *2 (N.D. Tex. Sept. 18, 2019) (collecting cases).18 Plaintiffs 

delayed twice in this case: first, in waiting years after many of the relevant events, which largely 

occurred between 2020 and 2022, to file this lawsuit; and second, in waiting two months after filing 

this lawsuit to seek a preliminary injunction. Plaintiffs’ Motion makes no attempt to justify these delays, 

18 See also, e.g., Anyadike, 2016 WL 12964684, at *3 (“several-month delay in filing . . . militates against 

a finding of irreparable harm”); H.D. Vest, Inc. v. H.D. Vest Mgmt. & Servs., LLC, , 2009 WL 1766095, 

at *4 (N.D. Tex. June 23, 2009) (delay of almost five months undercut assertion of irreparable harm); 

Pals Grp., Inc. v. Quiskeya Trading Corp., 2017 WL 532299, at *6 (S.D. Fla. Feb. 9, 2017) (three-month 

delay “is by itself sufficient grounds to deny its request for an injunction”); Seiko Kabushiki Kaisha v. 

Swiss Watch Int’l, Inc., 188 F. Supp. 2d 1350, 1356 (S.D. Fla. 2002) (finding that a “three-month delay . 

. . undercuts any sense of urgency”); Millennium Funding, Inc. v. 1701 Mgmt. LLC, 2021 WL 3618227, at 

*10 (S.D. Fla. Aug. 16, 2021) (“it is not uncommon for courts to deny a preliminary injunction in the 

face of unexplained delays of more than two months”) (collecting cases). 

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or to explain why they now require this Court’s intervention on an expedited basis, when they were in 

no particular rush in the preceding months and years. 

B. Plaintiffs fail to demonstrate a likelihood of success on the merits of their claims. 

1. Plaintiffs have not made a “clear showing” that they have standing. 

Standing is “an indispensable part of the plaintiff’s case,” and therefore “each element must 

be supported [] with the manner and degree of evidence required at the successive stages of the 

litigation.” El Paso Cnty. v. Trump, 982 F.3d 332, 338 (5th Cir. 2020). For a preliminary injunction, 

“plaintiffs must make a ‘clear showing’ that they have standing.” Barber v. Bryant, 860 F.3d 345, 352 

(5th Cir. 2017) (quoting Winter, 555 U.S. at 22). This is a higher standard than the “preponderance of 

evidence” standard that Plaintiffs must meet to survive a Rule 12(b)(1) factual attack. Plaintiffs’ 

cursory, one-page discussion of standing in their Motion does not meet the “clear showing” standard. 

See PI Mot. at 19–20. 

Plaintiffs assert in their Motion that Media Plaintiffs “face blacklisting, demonetization, 

reduced circulation of publications and subscriber and advertiser loss” caused by two “GEC 

supported” technologies, i.e., GDI Inc.’s Dynamic Exclusion List and NewsGuard’s Nutrition Labels 

product. PI Mot. at 19. These conclusory, factually unsupported statements fall short of the “clear” 

showing of concrete injury required for standing and for preliminary relief. See Soc’y of Separationists, 

Inc. v. Herman, 959 F.2d 1283, 1287 (5th Cir. 1992) (en banc) (“Especially where governmental action 

is involved, courts should not intervene unless the need for equitable relief is clear, not remote or 

speculative.”).19 For the numerous reasons already explained, supra Argument I.B, the record 

19 In support of their request for expedited discovery, which this Court should reject for independent 

reasons, Plaintiffs have also implicitly conceded that they lack any specific knowledge regarding 

current or future injury as a result of Defendants’ conduct. E.g., ECF No. 13 at 1 (discovery necessary 

“to determine the breadth of the still ongoing harm to Plaintiffs”); see also PI Mot. at 25 (“breadth of 

the restraint on Media Plaintiffs’ speech and circulation is . . . unknown”); Compl. ¶ 3 (same). The fact 

that Plaintiffs do not know how or if they are suffering or facing injury strongly supports the 

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demonstrates that these allegations are factually false and legally insufficient to establish any ongoing 

injury traceable to Defendants’ conduct. Plaintiffs also reiterate, in a sentence, their theory of injury 

to Texas based on HB 20. PI Mot. at 20. That incomplete theory fails as well, supra Argument I.A. 

The Court should therefore deny Plaintiffs’ preliminary injunction motion for the independent 

reason that they have not clearly shown standing. 

2. Media Plaintiffs are unlikely to succeed on their First Amendment claims. 

 Even if Media Plaintiffs had standing to seek injunctive relief and had shown imminent 

irreparable harm, they are unlikely to succeed on the merits of their First Amendment claims for the 

simple reason that the claimed censorship of their speech is not attributable to state action. Media 

Plaintiffs’ arguments to the contrary are both factually incorrect and unsupported by First Amendment 

caselaw. 

The Free Speech Clause of the First Amendment applies only to “governmental abridgment of 

speech”; it “does not prohibit private abridgement of speech.” Manhattan Cmty. Access Corp. v. Halleck, 

587 U.S. 802, 808 (2019). Private action is attributable to the Government, and subject to 

constitutional restraints, in only limited circumstances. See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1004 

(1982) (“Our precedents indicate that a State normally can be held responsible for a private decision 

only when it has exercised coercive power or has provided such significant encouragement, either 

overt or covert, that the choice must in law be deemed to be that of the State.”); Brentwood Acad. v. 

Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296 (2001) (holding that private party is deemed a state 

actor when it “operates as a ‘willful participant in joint activity with the State or its agents.’”). Under 

the proper legal analysis and a correct view of the facts, it is plain that Defendants have not violated 

the First Amendment. 

conclusion that they are not confronted by an actual or imminent injury at all. Cf. Clapper, 568 U.S. at 

409 (injury must be “certainly impending”). 

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a. Media Plaintiffs are unlikely to show that Defendants “exercised coercive power” 

over private parties or provided “such significant encouragement” as to convert 

private conduct into government action. 

Media Plaintiffs cannot show that Defendants are engaged in “coercion” or providing such 

“significant encouragement” to private parties as to convert private actions to ones of the government. 

Media Plaintiffs gesture to Blum v. Yaretsky, 457 U.S. 991 (1982), and baldly assert that “the evidence 

indicates GEC significantly encouraged the use of the censorship technology, which renders the thirdparty conduct state action.” PI Mot. at 32. But Media Plaintiffs fail to demonstrate that GEC had the 

type of control over GDI or NewsGuard—much less that use GDI or NewsGuard’s products—to 

meet Blum’s high bar (let alone that any GEC funding targeted domestic speech that would implicate 

Media Plaintiffs). 

At the outset, Media Plaintiffs do not expressly argue that Defendants engaged in coercion. 

See id. at 21–33. Nor could they. To amount to coercion, the government must have “compelled [a] 

decision by, through threats or otherwise, intimating that some form of punishment will follow a 

failure to comply.” Missouri v. Biden, 83 F.4th 350, 380 (5th Cir. 2023), cert. granted sub nom., Murthy v. 

Missouri, 144 S. Ct. 7 (2023); see Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 62–63 (1963) (holding that a 

state entity’s threat to refer a book distributor to the state Attorney General, among other things, if 

the distributor did not take certain books off the shelf, was coercive). Any such argument would fail 

at the jump because Media Plaintiffs allege no threat or intimidation from GEC to GDI or 

NewsGuard (or any threat or intimidation from GDI and NewsGuard to social media companies and 

advertisers) that would suggest that Defendants previously have or are now compelling such thirdparty companies to “downgrade” Media Plaintiffs’ content or stop advertising on Media Plaintiffs’ 

platforms. See supra Background I.C; Argument I.B; Skibinski Decl. ¶ 39 (“While the plaintiffs claim 

that these supposedly government-directed determinations led to them losing advertising revenue, if 

they did indeed lose such revenue, it is due not to the government’s actions but to their own 

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[choices].”). With no government request or instruction—let alone any intimation that punishment 

would follow from a failure to comply—Media Plaintiffs cannot prevail on a theory that Defendants 

are engaged in coercion. See Missouri, 83 F.4th at 377–78.

Nor can Media Plaintiffs demonstrate “significant encouragement.” The Fifth Circuit has held 

that “[t]o constitute ‘significant encouragement,’ there must be such a ‘close nexus’ between the parties 

that the government is practically ‘responsible’ for the challenged decision.” Id. at 374 (quoting Blum, 

457 U.S. at 1004). The Government does not significantly encourage a private party through “[m]ere 

approval of or acquiescence in the initiatives.” Blum, 457 U.S. at 1004–05; Rendell-Baker v. Kohn, 457 

U.S. 830, 841 (1982) (“Acts of such private contractors do not become acts of the government by 

reason of their significant or even total engagement in performing public contract.”); Am. Mfrs. Mut. 

Ins. Co. v. Sullivan, 526 U.S. 40, 54 (1999) (“[P]ermission of a private choice cannot support a finding 

of state action.”). Rather, the Fifth Circuit has held that the “the government must exercise some 

active, meaningful control over the private party’s decision” for the choice to be considered that of 

the state. Missouri, 83 F.4th at 374.20 

Media Plaintiffs cannot make such a showing because GEC does not exert any sort of 

“meaningful, active control,” see id. at 376, over the development or use of the so-called “censorship 

technologies” of which Media Plaintiffs complain, or any ensuing decisions regarding Media Plaintiffs 

made by the companies that decided to use these technologies. First take GDI. Media Plaintiffs assert 

that they were harmed by GDI’s Dynamic Exclusion List because corporations that subscribe to that 

List have chosen not to advertise with Media Plaintiffs based on their (unconfirmed) presence on it. 

But as discussed above, GEC did not then and does not now have any control over the U.S.-based 

20 The United States argued before the Supreme Court that the Fifth Circuit misinterpreted the 

“significant encouragement” standard in Missouri v. Biden. See Br. for the Petitioners, Murthy v. Missouri, 

No. 23-411 (2023). Nevertheless, Media Plaintiffs cannot meet the Fifth Circuit’s interpretation of this 

standard. 

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GDI Inc’s decision to create the Dynamic Exclusion List, nor such control over the corporations 

choosing to purchase the list, or those opting not to advertise with Media Plaintiffs—as to make these 

independent decisions ones of the federal government. See Rogers Decl. ¶ 7; La. Div. Sons of Confederate 

Veterans v. City of Natchitoches, 821 F. App’x 317, 319–20 (5th Cir. 2020) (business association’s decision 

to deny the Sons of Confederate Veterans from marching in a parade after considering a letter from 

a Mayor that asked the association to “prohibit the display of the Confederate battle flag in that year’s 

parade” did not amount to “sufficiently strong ‘encouragement’” under Blum). Thus, Media Plaintiffs 

cannot even show “[m]ere approval of or acquiescence” in these decisions—which itself is insufficient

for a showing of state action. Blum, 457 U.S. at 1004–05. With no indication that Defendants had any 

involvement (let alone active, meaningful control) over the decisions surrounding U.S.-based GDI 

Inc.’s Dynamic Exclusion List—and much less the companies that purportedly choose not to 

advertise with those on the Dynamic Exclusion List—the actions of these entities cannot be deemed 

ones of the federal government. See Missouri, 83 F.4th at 374–75. 

The same holds true for NewsGuard. Media Plaintiffs maintain they were harmed by 

NewsGuard’s Nutrition Labels database (which rates domestic news outlets), because advertisers 

withhold revenue from them, and social media companies deprioritize them, as a result of their ratings. 

But there is no connection between the GEC subgrant to NewsGuard and NewsGuard’s ratings of 

domestic media outlets. See, e.g., Skibinski Decl. ¶ 36 (“During the course of the project, however, 

nobody at Park Advisors, NSIN, GEC, the United States Cyber Command, CNMF, PeakMetrics, or 

Omelas aided, assisted, helped, or otherwise took any action to improve or develop NewsGuard’s 

website ratings.”). And with no nexus between the government and the challenged private action, 

NewsGuard’s choice, or the choice of any potential advertiser or social media company which looks 

at NewsGuard’s products, cannot be attributed to Defendants. Id. ¶ 39 (“Nobody from the GEC, 

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CNMF, or any other government agency was in any way involved in these determinations.”); City of 

Natchitoches, 821 F. App’x at 319–20. 

Without any evidence that Defendants are exercising any control over GDI, NewsGuard, or 

third-party advertising companies, Media Plaintiffs have no likelihood of succeeding on their claim 

that Defendants “coerce” or “so significant[ly] encourage” social media companies or advertisers to 

restrict, downgrade, or demonetize of any Americans’ speech or any American press, such that the 

actions taken by any third-party companies “must in law be deemed to be [those] of the 

[government].” Blum, 457 U.S. at 1004. 

b. Media Plaintiffs cannot show “joint action” between GEC, tech companies, and 

undefined “users” of tech companies’ products. 

 For similar reasons, Media Plaintiffs cannot make a showing that GEC engages in “joint 

action” with private parties. See PI Mot. at 32. Under the joint action doctrine, private parties can be 

deemed to be state actors when their conduct is vested with governmental authority or otherwise 

closely intertwined with action by government officials. See, e.g., Brentwood Acad., 531 U.S. at 296. There 

are a few types of cases in which the Supreme Court found joint action. 

In the first category, courts have held that an action by a private party that harms the plaintiff 

constitutes state action if “the State provided a mantle of authority that enhanced the power of the 

harm-causing individual actor,” NCAA v. Tarkanian, 488 U.S. 179, 192 (1988). In Lugar v. Edmondson 

Oil Co., 457 U.S. 922 (1982), for example, the Supreme Court held that a corporation was a state actor 

when, exercising authority conferred on it by state law and in conjunction with state officials, it 

obtained a prejudgment attachment of property to satisfy what it claimed was a debt. Id. at 941–42. 

Although Plaintiffs rely on Lugar, they make no effort to show that the government conferred any 

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authority onto GDI and NewsGuard, much less onto far-removed third parties such as the advertisers 

that decline to patronize Media Plaintiffs, so as to transform private conduct into state action. 

 In a handful of other cases, courts have found that private parties engaged in state actions—

even absent a governmental “enhance[ment]” of their power, Tarkanian, 488 U.S. at 192—on the 

theory that the government had “so far insinuated itself into a position of interdependence with” the 

private party “that it must be recognized as a joint participant in the challenged activity,” Burton v. 

Wilmington Parking Auth., 365 U.S. 715, 725 (1961). In Burton, the Supreme Court held that “a 

restaurant’s refusal to serve [Black customers] constituted state action since, among other things, the 

restaurant was located on the premises of a public parking garage and the garage profited from the 

discriminatory conduct of the restaurant.” Frazier v. Bd. of Trs. of N.W. Miss. Reg. Med. Ctr., 765 F.2d 

1278, 1285 (5th Cir. 1985). Plaintiffs make the broad, conclusory, and factually unsupported assertion 

that “Defendants ‘so far insinuated’ themselves into the private affairs of the tech companies—both 

the developers and the users of the CPD tools and technology—that the line between public and 

private action is blurred.” PI Mot. at 32. But there is nothing like the sort of “interdependence” that 

Burton requires to show state action—GEC has had no control over GDI and NewsGuard’s 

technologies which Media Plaintiffs allege have caused them harm, nor control over the decisions 

made by users of those technologies. See supra Background I. 

 Finally, a private entity may also be deemed a state actor when it “operates as a ‘willful 

participant in joint activity with the State or its agents.’” Brentwood Acad., 531 U.S. at 296. There must 

be such a level of intertwinement that “any act of the private entity will be fairly attributable to the 

state even if it cannot be shown that the government played a direct role in the particular action 

challenged.” Frazier, 765 F.2d at 1288 n.22. The Fifth Circuit recognized that this test is an exceedingly 

high bar. Missouri, 83 F.4th at 375 n.11 Thus, the joint action doctrine is even harder to satisfy than 

the “significant encouragement” or “coercion” tests and requires a plaintiff to plead and prove 

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“substantial integration between the two entities in toto.” Id. For the reasons discussed above, Media 

Plaintiffs cannot demonstrate significant government involvement in a particular challenged action. 

See supra Argument II.B.1.a. And they are even less likely to prevail on the argument that there is 

“pervasive entwinement” between Defendants and such far-removed third parties as the advertisers 

that decline to patronize Media Plaintiffs such that every decision of those parties becomes one of the 

federal government. Missouri, 83 F.4th at 375 n.11. To find that GEC engages in “joint action” with 

every named and unnamed company that develops or uses tools and technology for countering foreign 

disinformation and propaganda would eliminate the distinction between public and private action. 

Media Plaintiffs’ argument should be rejected. Manhattan Comm. Access Corp., 587 U.S. at 808–09. 

c. Defendants did not directly violate the First Amendment. 

In apparent acknowledgment that they cannot meet the demands of the state-action doctrine, 

Media Plaintiffs claim the only relevant inquiry is whether Defendants’ actions have the consequence 

of abridging First Amendment rights. PI Mot. at 30; Compl. ¶ 201 (“[W]hat matters . . . is whether the 

government’s actions have had the consequence of abridging Freedom of Speech or Freedom of the 

Press, not whether it has acted directly, not whether a private partner has become a government actor, 

and not whether government has acted coercively or with undue pressure.”). Thus, they assert that 

Defendants directly engage in viewpoint-based discrimination and impose a de facto prior restraint 

on speech because they have “funded GDI’s infrastructure, funded GDI and NewsGuard’s testing on 

Disinfo Cloud, and otherwise assisted, tested, promoted, and marketed GDI and NewsGuard, whose 

ranking technologies direct the public and advertisers away from Media Plaintiffs.” PI Mot. at 26–27.21

21 Media Plaintiffs also conjecture that GEC, among other activities, “may be assisting and encouraging 

web browsers and social media companies to adopt technology that hides The Daily Wire and the 

Federalist’s reporting.” PI Mot. at 25-26. Such speculation is insufficient to warrant a preliminary 

injunction or to even maintain a complaint. Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 

(5th Cir. 1985) (concluding that “there must be more than an unfounded fear on the part of the 

applicant” to issue a preliminary injunction); Bailey v. Mansfield Indep. Sch. Dist., 425 F. Supp. 3d 696, 

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But Media Plaintiffs cite no case which supports their theory that the government can violate the First 

Amendment based upon third parties’ reactions to government speech or funding. 

In fact, case law confirms just the opposite. The crux of Media Plaintiffs’ argument is that 

GEC’s speech and funding dissuaded private persons and companies from giving their business to, 

supporting, or reading the Daily Wire and the Federalist, thereby limiting Media Plaintiffs’ speech and 

circulation. Id. at 25-27. But “urging, encouraging, pressuring or even inducing action does not violate 

the Constitution unless and until such conduct crosses the line into coercion or significant 

encouragement.” Missouri, 83 F.4th at 395. Moreover, “[w]hen government speaks, it is not barred by 

the Free Speech Clause from determining the content of what it says.” Walker v. Tex. Div., Sons of 

Confederate Veterans, Inc., 576 U.S. 200, 207-08 (2015); Kennedy v. Warren, 66 F.4th 1199 (9th Cir. 2023) 

(affirming the denial of a preliminary injunction after a United States Senator sent a letter to Amazon 

requesting that it stop selling a “false or misleading” book because such a First Amendment claim was 

unlikely to succeed on the merits); Penthouse Int’l, Ltd. v. Meese, 939 F.2d 1011, 1015 (D.C. Cir. 1991) 

(concluding that statements made by the Attorney General’s Commission on Pornography, which led 

the owners of 7-Eleven to stop selling Penthouse magazine, did not abridge Penthouse’s First 

Amendment rights); Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 572, 583 (1998) (so long as the 

Government’s funding decisions do “not silence speakers by expressly threaten[ing] censorship of 

ideas,” or “introduce considerations that, in practice, would effectively preclude or punish the 

expression of particular views,” they do not compromise First Amendment principles). 

In any event, Media Plaintiffs’ argument lacks a factual basis. Media Plaintiffs claim that 

Defendants “funded GDI’s infrastructure, funded GDI and NewsGuard’s testing on Disinfo Cloud, 

and otherwise assisted, tested, promoted, and marketed GDI and NewsGuard, whose ranking 

712 (N.D. Tex. 2019) (even on a motion to dismiss, “a court is not to strain to find inferences favorable 

to the plaintiff and is not to accept conclusory allegations, unwarranted deductions, or legal 

conclusions.”), appeal dismissed sub nom. Bailey v. Vaszauskas, 2020 WL 3053942 (5th Cir. Feb. 28, 2020). 

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technologies direct the public and advertisers away from Media Plaintiffs.” PI Mot. at 26–27. But GEC 

did not fund GDI’s infrastructure, Rogers Decl. ¶ 7 (“GDI’s infrastructure costs were borne entirely 

out of other, private sources of funding”), nor did it fund any testing of GDI or NewsGuard’s 

technologies that rank American news sources or “direct the public and advertisers away from Media 

Plaintiffs,” see PI Mot. at 26; Rogers Decl. ¶ 4 (explaining that GEC’s subaward to GDI was to “expand 

GDI’s disinformation risk measurement to a broader set of countries in East Asia and Europe”); 

Skibinski Decl. ¶ 25 (attesting that its 2020 subaward under the GEC grant “was limited to monitoring 

foreign state-sponsored sources of disinformation—with no focus on domestic news sources”). 

Media Plaintiffs are thus left to argue that Defendants violated the First Amendment by 

promoting and marketing GDI and NewsGuard. PI Mot. at 26–27, 29–30. Media Plaintiffs point to a 

statement of the Director of TET about GDI, a “tweet” from NewsGuard that was “retweeted” on 

the Disinfo Cloud’s Twitter Account, and a statement in the Disinfo Cloud Digest. Id. at 29–30. But 

even assuming that these were the government’s own speech,22 government officials could not do 

their jobs without expressing views—often on controversial topics—for themselves and their 

agencies, and the First Amendment does not place a viewpoint-neutrality requirement on the 

Government’s own speech. See Missouri, 83 F.4th at 374 (noting that “‘the government can speak for 

itself,’ which includes the right to ‘advocate and defend its own policies.’” (quoting Bd. of Regents of 

Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000)); Shurtleff v. City of Bost., 596 U.S. 243, 251–52 

(2022). In fact, Government officials may go as far as to “vigorously criticize a publication” or speaker 

“for any reason they wish.” Penthouse, 939 F.2d at 1015.23 As such, these statements are nothing more 

than permissible speech. 

22 As stated above, Park Advisors ran the Disinfo Cloud Digest and Disinfo Cloud Twitter account, 

Kimmage Decl. ¶ 20, and Media Plaintiffs have not established that its actions are attributable to GEC. 

23 Although government officials may criticize publications and speakers, see id., the speech alleged 

here comes nowhere close to criticizing Media Plaintiffs or encouraging others away from their 

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To be sure, the government may not “do that indirectly which [it] is forbidden . . . to do 

directly.” Polar Tankers, Inc. v. City of Valdez, 557 U.S. 1, 8 (2009). Because the government could go so 

far as “vigorously criticizing” Media Plaintiffs themselves, however, it would not be constitutionally 

improper for Defendants to fund private entities that might do so. Penthouse, 939 F.2d at 1015. And 

regardless, this is not the story that the facts bear out. See supra Background I. Media Plaintiffs are thus 

unlikely to prevail on their claim the Defendants are directly violating the First Amendment. 

* * * 

At bottom, Media Plaintiffs ask this Court to hold that Defendants’ permissible speech and 

discrete grants of money for legitimate purposes (which are unrelated to Media Plaintiffs’ complaints) 

transformed the actions of private entities—and the actions of other private individuals reacting to 

those private entities—into ones of the government. That surprising suggestion runs counter to 

longstanding Supreme Court precedent. See, e.g., Blum, 457 U.S. at 1004. Not only that, it would 

constitutionalize a wide range of legitimate, First Amendment-protected private activity, thereby 

turning bedrock free speech principles on their head. Media Plaintiffs’ attempt at rewriting First 

Amendment precedent should be roundly rejected. 

platform. Indeed, Plaintiffs do not claim that this speech even mentioned Media Plaintiffs in any 

statement or publication. Rather, Media Plaintiffs allege that Patricia Watts, the Director of TET 

stated, “we encourage [those listening] to engage with all eight companies featured during the tech 

challenge to determine if there are opportunities to support their counter-disinformation work. Their 

work benefits us all in building a better information environment, so please do reach out to them or 

to us.” Compl. ¶ 132. NewsGuard’s tweet—which was retweeted by Disinfo Cloud’s Account—states 

that NewsGuard was releasing a paper that “independent research show[ed] that human-curated news 

reliability ratings help mitigate false news.” PI Mot. Ex. P at 107, ECF No. 11-17. And the statement 

in the Disinfo Cloud Digest merely references a NewsGuard product. See PI Mot. Ex. R at 117, ECF 

No. 11-19 (“NewsGuard launched a new tool, Responsible Advertising for News Segments (RANS), 

to help advertising companies avoid websites known to host or produce mis/disinformation.”). Such 

mundane speech, which does not even reference Media Plaintiffs, does not violate Media Plaintiffs’ 

First Amendment rights. Walker, 576 U.S. at 207–08. 

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3. Plaintiffs are unlikely to succeed on their APA and Ultra Vires claims.

Plaintiffs are also unlikely to succeed on their APA or ultra vires claims that Defendants are 

exceeding their statutory authority.24 See PI Mot. at 17 (discussing 5 U.S.C. § 706(2)(C)); Compl. ¶¶ 

283–300 (Count Three), id. ¶¶ 301–05 (Count Four). As a threshold jurisdictional matter, Plaintiffs’ 

APA claim fails because they have not identified a discrete final agency action that they challenge. On 

the merits of both claims, Plaintiffs have not demonstrated that any of Defendants’ conduct has in 

the past or is now exceeding their clear statutory authority to identify and combat foreign malign 

disinformation campaigns. 

a. Plaintiffs have not identified any final agency action. 

The APA limits judicial review to “final agency action,” 5 U.S.C. § 704, which is a jurisdictional 

requirement in the Fifth Circuit, Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011). Agency action is 

final if it is one: “(1) [that] ‘mark[s] the consummation of the agency’s decisionmaking process,’ and 

(2) ‘by which rights or obligations have been determined, or from which legal consequences will flow.’” 

Sierra Club v. Peterson, 228 F.3d 559, 565 (5th Cir. 2000) (quoting Bennett v. Spear, 520 U.S. 154, 178 

(1997)). Plaintiffs’ APA claim fails as a matter of law because they have not identified the final agency 

action or actions that they challenge. 

The relevant paragraph in the complaint alleges that the “final agency action” here is 

“Defendants’ secretive scheme to suppress, defame, defund, discredit, and reduce the circulation of a 

segment of the press” by “funding, marketing, and/or promoting censorship tools, technology and 

censorship enterprises” in the United States. Compl. ¶ 260. Even assuming that Defendants were 

doing anything of the sort (they are not), this generalized and inchoate attack on an ill-defined ongoing 

course of conduct constitutes the kind of challenge to “the continuing (and thus constantly changing) 

24 Plaintiffs’ contention that Defendants violate the APA by exceeding their constitutional authority 

(Count Five), see PI Mot. at 17, is duplicative of their standalone First Amendment claims and fails for 

the same reasons that those do. See supra Argument II.B.2. 

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operations” of a federal agency that the Supreme Court and the Fifth Circuit have rejected for failing 

to identify a specific and discrete final agency action. Sierra Club, 228 F.3d at 566; see Lujan v. Nat’l 

Wildlife Found., 497 U.S. 871, 899 (1990) (final action must be “an identifiable action or event”); Norton 

v. S. Utah Wilderness All., 542 U.S. 55, 62 (2004) (APA limits judicial review to “circumscribed, discrete 

agency actions”). In other words, Plaintiffs’ wholesale challenge to an undefined “secretive scheme,” 

Compl. ¶ 260, “is not a justiciable challenge because the program [to which Plaintiffs] object does not 

‘mark the consummation of the agency’s decisionmaking process,’ or constitute ‘an identifiable action 

or event.’” Sierra Club, 228 F.3d at 566 (quoting Bennett, 520 U.S. at 178, and Lujan, 497 U.S. at 899). 

“Instead, as in Lujan, [Plaintiffs] have impermissibly attempted to ‘demand a general judicial review of 

the [State Department’s] day-to-day operations.’” Id. (quoting Lujan, 497 at 899). The APA does not 

grant federal courts that power. Nor is Plaintiffs’ “programmatic challenge made justiciable by the fact 

that [they have] identified some specific” actions that Defendants took several years ago, such as those 

in connection with the subawards to GDI Ltd. or to NewsGuard, “that they [might] argue are final 

agency actions.” Id. at 567. This Court should reject these invitations to ignore the “institutional limits 

on courts which constrain [their] review to narrow and concrete actual controversies,” id. at 566, and 

dismiss Plaintiffs’ APA claim for lack of jurisdiction.

b. Defendants have not exceeded their statutory authority. 

On the merits, Plaintiffs have failed to demonstrate that Defendants have previously or are 

now exceeding their statutory authority. The State Department is responsible for the management of 

foreign affairs. 22 U.S.C. §§ 2651, 2656. In line with that mandate, GEC is statutorily charged with 

leading and coordinating the federal government’s efforts to recognize, expose, and counter “foreign 

state and non-state propaganda and disinformation efforts aimed at undermining or influencing the 

policies, security, or stability” of the United States and its allies, including through the use of “a wide 

range of technologies.” Id. § 2656 note (Global Engagement Center). GEC has explicit grant-making 

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authority to carry out its mission. Id. § (f). As explained at length, all of GEC’s activities at issue in this 

lawsuit—the awards to GDI Ltd. and to NewsGuard in connection with its Testbed and Tech 

Challenges initiatives; its tech demos; the Disinfo Cloud platform; and its engagement with privatesector technology companies whose websites can be potent vectors for the spread of foreign 

disinformation narratives overseas—were consistent with and furthered that critical national security 

mission. 

The same misstatements of fact that plague Plaintiffs’ theories of standing and state action for 

First Amendment purposes doom their contentions that Defendants are in any way exceeding their 

broad statutory mandates. In particular, Plaintiffs’ claims all rest on the profoundly incorrect premise 

that Defendants have targeted, or are targeting, either directly or indirectly, their speech or press 

freedom. See generally PI Mot. at 18–20 (asserting that Defendants “research, assess, test, market, or 

promote tools and technologies that target Americans’ speech or the American press”; help develop 

technology to do the same; “discuss with [Silicon Valley] tech companies concerns about” American 

speech; or generally “reduce or lessen the reach” of American speech). But Plaintiffs’ evidence does 

not support even the barest inference that Defendants have done or continue to do any such thing, 

let alone establish a substantial likelihood of success on the merits. 

Finally, as an alternative to challenging final agency action under the APA, Plaintiffs’ Motion 

makes a passing reference to their non-statutory ultra vires claim, which is based on the same theory 

that Defendants acted beyond their statutory authority. See PI Mot. at 17 (referencing “count[] three” 

without further analysis). Plaintiffs’ Motion does not discuss this claim but instead appears to use the 

phrase “ultra vires” as shorthand for an ordinary APA claim arising under 5 U.S.C. § 706(2)(C), 

challenging agency action in excess of statutory authority. In any event, assuming they can bring a 

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non-statutory ultra vires claim,25 it is duplicative of the APA claim and fails for the reasons just 

explained. Moreover, ultra vires claims are subject to an even more demanding standard that Plaintiffs 

do not come close to meeting. To state an ultra vires claim, “a plaintiff must ‘do more than simply 

allege that the actions of the officer are illegal or unauthorized.’” Danos v. Jones, 652 F.3d 577, 583 (5th 

Cir. 2011) (quoting Ala. Rural Fire Ins. Co. v. Naylor, 530 F.2d 1221, 1226 (5th Cir. 1976)). Rather, a 

plaintiff “must allege facts sufficient to establish that the officer was acting ‘without any authority 

what[so]ever,’ or without any ‘colorable basis for the exercise of authority.’” Id. (quoting Pennhurst, 465 

U.S. at 101 n.11). This is an extraordinarily difficult standard to meet; ultra vires review is available only 

for the most blatant violations of law. Oestereich v. Selective Serv. Sys. Loc. Bd. No. 11, 393 U.S. 233, 238 

(1968) (challenged action must be “blatantly lawless” or a “clear departure” from agency’s statutory 

mandate).26 Nothing in the record establishes a likelihood that any of Defendants’ conduct meets this 

exacting standard. 

C. The balance of equities and the public interest disfavor a preliminary injunction. 

The remaining two preliminary injunction factors—the balance of the equities and the public 

interest—“merge when the Government is the opposing party” and weigh sharply in Defendants’ 

favor. See Nken v. Holder, 556 U.S. 418, 435 (2009). As an initial matter, because Plaintiffs cannot 

establish the first two factors necessary to obtain an injunction, “it is clear they cannot make the 

25 The Fifth Circuit and the Supreme Court have both historically expressed doubts about whether 

non-statutory ultra vires review remains available in light of the 1976 amendments to the APA. See Geyen 

v. Marsh, 775 F.2d 1303, 1307 (5th Cir. 1985) (recognizing that the “principal purpose” of the 1976 

Amendments—which “waived sovereign immunity for suits seeking nonmonetary relief through 

nonstatutory judicial review of agency action”—“was to do away with the ultra vires doctrine and other 

fictions surrounding sovereign immunity” (citing Act of Oct. 21, 1976, Pub. L. No. 94-574, § 1, 90 

Stat. 2721, 2721 (codified at 5 U.S.C. § 702 (1982)))); see also Pennhurst State Sch. & Hosp. v. Halderman, 

465 U.S. 89, 116 (1984) (noting that “the ultra vires doctrine [is] a narrow and questionable exception” 

to sovereign immunity). 

26 See also Leedom v. Kyne, 358 U.S. 184, 188 (1958); Nyunt v. Chairman, Broad. Bd. of Governors, 589 F.3d 

445, 449 (D.C. Cir. 2009) (Kavanaugh, J.) (an ultra vires claim is “essentially a Hail Mary pass” that 

“rarely succeeds”; the agency’s error must be “so extreme” that it is “jurisdictional or nearly so”). 

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corresponding strong showings [on the second two factors] required to tip the balance in their favor.” 

Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1295 (D.C. Cir. 2009); Mayo Found. for Med. Educ. & 

Rsch. v. BP Am. Prod. Co., 447 F. Supp. 3d 522, 535 (N.D. Tex. 2020) (declining to address the final 

two Winter factors because the plaintiff could not establish the first two factors).

But even if Plaintiffs could satisfy one or both of those factors, the remaining factors tip 

decisively in Defendants’ favor. Although First Amendment rights when they are genuinely at risk are 

in the public interest, the speculative risk of harm to Plaintiffs’ asserted interests must be weighed 

against the obstruction of legitimate government functions that could result if the Court entered 

Plaintiffs’ proposed injunction. See Winter, 555 U.S. at 24 (“In exercising their sound discretion, courts 

of equity should pay particular regard for the public consequences in employing the extraordinary 

remedy of injunction.” (citations omitted)).

As also shown in the discussion of the proposed injunction’s overbreadth, infra Argument 

II.D, Plaintiffs’ proposed injunction could significantly hinder GEC’s ability to combat foreign state 

and non-state propaganda and disinformation overseas. Kimmage Decl. ¶ 25. (“If the proposed 

preliminary injunction prohibited GEC from taking any action to test or use technology to counter 

disinformation and propaganda overseas” that could, through “events outside of the GEC’s control, 

someday be used by third parties in the United States, it would severely constrain GEC’s ability to 

carry out its statutorily mandated mission.”). For example, under a broad reading of the proposed 

preliminary injunction, GEC’s efforts to identify technology to counter the misuse of artificial 

intelligence by foreign adversaries could be considered “encourag[ing] the development or use of 

technology” targeting American speech to the extent such technology could also be used in a domestic 

context, even if that was not the purpose or effect of GEC’s effort. Id. ¶ 24. 

Countering foreign state and non-state disinformation and propaganda is of critical concern 

to the United States, id. ¶ 5, and GEC’s work in this regard helps to ensure that foreign actors do not 

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undermine the “policies, security, or stability of the United States and United States allies and partner 

nations,” 22 U.S.C. § 2656 note (Global Engagement Center). These government activities help 

protect the nation’s welfare and safety and outweigh Plaintiffs’ speculative First Amendment harms. 

Kimmage Decl. ¶¶ 24–25; Def. Distributed v. U.S. Dep’t of State, 838 F.3d 451, 459 (5th Cir. 2016) 

(holding that any First Amendment interest by plaintiffs was outweighed by national security interests). 

Accordingly, the balance of the equities and the public interest weigh heavily against granting the relief 

Plaintiffs seek. 

D. Plaintiffs’ proposed injunction is improper.

Plaintiffs’ proposed injunction is not only contrary to the public interest but also improper for 

two reasons. First, the proposed injunction lacks the specificity required by Federal Rule of Civil 

Procedure 65(d)(1). Second, the proposed injunction is substantially overbroad because it would 

needlessly interfere with the performance of lawful Executive Branch activities that protect national 

security. 

1. The proposed injunction is imprecise. 

Rule 65(d)(1) requires “[e]very order granting an injunction” to “state its terms specifically,” 

and “describe in reasonable detail—and not by referring to the complaint or other document—the 

act or acts restrained or required.” As the Supreme Court has explained, these are “no mere technical 

requirements”; they serve the vital purpose of giving proper notice to those subject to court orders so 

that they may act without fear of being found in contempt. Schmidt v. Lessard, 414 U.S. 473, 476 (1974); 

see also Scott v. Schedler, 826 F.3d 207, 213–14 (5th Cir. 2016) (an injunction “must describe in reasonable 

detail the acts restrained or required” and identify what specific policies are enjoined). 

Plaintiffs’ requested injunction falls far short of Rule 65(d)’s requirements. Before all else, it is 

unclear what broad array of activity Plaintiffs seek to enjoin. Plaintiffs’ Motion requests that the Court 

enjoin Defendants “from continuing to research, assess, fund, test, market, promote, host on [their] 

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government platform, and/or otherwise assist with or encourage the development or use of 

technology that targets in whole, or in part, Americans’ speech or the American press.” PI Mot. at 3. 

But Plaintiffs’ proposed order requests that the Court enjoin Defendants from “developing, funding, 

testing, maintaining, storing, highlighting, promoting, using, or encouraging, urging, pressuring, or 

otherwise inducing others to use, technology to track, rate, rank, silence, assess, counter, amplify, deamplify, deplatform, de-boost, demonetize, suspend, shadow ban, de-boost, restrict, limit, reduce 

access to, or otherwise abridge the lawful speech of the American press and Americans.” Proposed 

Order ¶ 2, ECF No. 11-42. 

Plaintiffs compound this problem by using undefined, vague terms. If Defendants are to 

understand these undefined terms, such as “promote,” “assist with,” “encourage” or “induce,” by 

reference to the immense swath of conduct that, in Plaintiffs’ view, violates the First Amendment, 

those terms could encompass any form of government expression. The injunction thus risks enjoining 

permissible government action and speech, see supra Argument II.B.2.c, and it is “axiomatic that an 

injunction is overboard if it enjoins a defendant from engaging in legal conduct.” Missouri, 83 F.4th at 

395. Plaintiffs further seek to enjoin Defendants from “assist[ing]” or “encourag[ing]” conduct, PI 

Mot. at 3, but assisting or encouraging action “does not violate the Constitution unless and until such 

conduct crosses the line into coercion or significant encouragement.” Missouri, 83 F.4th at 395. 

Further, by failing to define terms such as “assist,” “encourage,” or “promote,” Plaintiffs fail 

to put the Defendants on reasonable notice of what conduct is proscribed and might improperly place 

Defendants at risk of contempt. Nor do Plaintiffs define the terms “de-amplify,” “deplatform,” “deboost,” “demonetize,” “suspend,” “shadow ban,” “de-boost,” or “restrict.” And the fact the Plaintiffs’ 

proposed preliminary injunction fails to identify a single, concrete instance of ongoing government 

action, a current government policy, or imminent policy decision to be enjoined underscores its 

impermissibility. Plaintiffs’ proposed injunction thus fails to meet the requirements of Rule 65(d)(1). 

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2. The proposed injunction is overbroad. 

Even if Plaintiffs’ proposed injunction were sufficiently precise, it would still be overbroad. 

Although GEC does not engage in activities that restrict American speech or press, the proposed 

injunction threatens to prevent GEC from performing functions essential to public safety and national 

security. Thus, the injunction would defy established principles barring equitable relief that is “more 

burdensome to the defendant[s] than necessary to provide complete relief to the plaintiffs.” Califano 

v. Yamasaki, 442 U.S. 682, 702 (1979). 

The proposed injunction could interfere with key functions statutorily assigned to GEC. 

Congress tasked GEC with “recogniz[ing], understand[ing], expos[ing], and counter[ing] foreign state 

and non-state propaganda and disinformation efforts aimed at undermining or influencing the policies, 

security, or stability of the United States and United States allies and partner nations.” 22 U.S.C. §2656 

note (Global Engagement Center). More specifically, one of the statutorily-defined functions assigned 

to GEC is to “[f]acilitate the use of a wide range of technologies and techniques by sharing expertise 

among Federal departments and agencies, seeking expertise from external sources, and implementing 

best practices.” 22 U.S.C. § 2656 note (Global Engagement Center). GEC’s ability to meet its 

functions therefore “requires a cutting-edge understanding of the technologies our adversaries are 

using and the technologies under development” required to respond. Kimmage Decl. ¶ 25. But the 

proposed preliminary injunction threatens to prevent GEC from performing these activities because 

it could “prohibit[] GEC from taking any action to test or use technology to counter disinformation 

and propaganda overseas” that could, through “events outside of the GEC’s control, someday be used 

by third parties in the United States.” Id.

GEC, for example, is working to identify technology to counter the misuse of artificial 

intelligence by foreign adversaries. Kimmage Decl. ¶ 24. Under a broad reading of the proposed 

preliminary injunction, such activity could be considered “encourag[ing] the development or use of 

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49 

technology” targeting American speech to the extent such technology could also be used in a domestic 

context, even though that was not the purpose or effect of GEC’s effort. Id. Such a restriction does 

not remedy the harm Plaintiffs claim, see supra Argument I, and is unnecessarily overboard. Scott, 826 

F.3d at 211 (concluding that an injunction must be “narrowly tailor[ed] . . . to remedy the specific 

action which gives rise to the order as determined by the substantive law at issue”). 

III. Claims against the official capacity Defendants should be dismissed. 

Finally, this Court should at the very least dismiss Plaintiffs’ claims against the official capacity 

Defendants. As the Fifth Circuit has recognized, an official capacity claim is essentially a claim against 

the agency and the official capacity claims therefore merge with those against the agencies. Harmon v. 

Dall. Cnty., 927 F.3d 884, 891 (5th Cir. 2019) (observing that when “a defendant government official 

is sued in his individual and official capacity, and the city or state is also sued,” those sets of claims 

“merge”). Along similar lines, Plaintiffs fail to explain why an injunction against federal employees 

sued in their official capacity is necessary when they also seek to enjoin the agency where these 

individuals are employed. There is nothing added by seeking to enjoin individuals sued in their official 

capacity where the agency also would be subject to the proposed injunction. 

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CONCLUSION

 For these reasons, the Court should deny Plaintiffs’ motion for a preliminary injunction and 

grant Defendants’ motion to dismiss. 

Dated: March 15, 2024 Respectfully submitted, 

BRIAN M. BOYNTON 

Principal Deputy Assistant Attorney General 

JAMES J. GILLIGAN 

Special Litigation Counsel 

Federal Programs Branch 

JOSHUA E. GARDNER

Special Counsel 

Federal Programs Branch 

/s/ Arjun Mody 

DOROTHY M. CANEVARI (NY # 5989694) 

CRISTEN C. HANDLEY (MO # 69114) 

CODY T. KNAPP (NY # 5715438) 

ARJUN MODY (DC #90013383) 

Trial Attorneys 

United States Department of Justice 

Civil Division, Federal Programs Branch 

1100 L Street, N.W. 

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 March 15, 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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