1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION 

THE DAILY WIRE, LLC; 

FDRLST MEDIA, LLC; and 

THE STATE OF TEXAS, by and through its 

Attorney General, Ken Paxton, 

Plaintiffs, 

 v. 

DEPARTMENT OF STATE; 

GLOBAL ENGAGEMENT CENTER; 

ANTONY BLINKEN, in his official capacity as 

Secretary of State; 

LEAH BRAY, in her official capacity as Deputy 

Coordinator of the State Department’s Global 

Engagement Center; 

JAMES P. RUBIN, in his official capacity as 

Coordinator for the Global Engagement Center of the 

State Department; 

DANIEL KIMMAGE, in his official capacity as the 

Principal Deputy Coordinator for the Global 

Engagement Center at the State Department; 

ALEXIS FRISBIE, in her official capacity as Senior 

Technical Advisor of the Technology Engagement 

Team for the Global Engagement Center at the State 

Department; 

PATRICIA WATTS, in her official capacity as the 

Director of the Technology Engagement Team at the 

Global Engagement Center at the State Department, 

 Defendants. 

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

MOTION FOR 

PRELIMINARY INJUNCTION 

 

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2 

PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION 

Pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, Plaintiffs The Daily Wire, 

LLC, FDRLST Media, LLC, and the State of Texas hereby move to preliminarily enjoin 

Defendants from continuing to fund, test, market, promote, host on its 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. As explained in detail in the accompanying 

memorandum in support of this motion, Plaintiffs will suffer irreparable harm absent the requested 

injunctive relief as a direct result of Defendants’ ultra vires actions, which have also gravely 

violated, and continue to violate, Media Plaintiffs’ First Amendment rights to freedom of speech 

and of the press.1

WHEREFORE, Plaintiffs respectfully request that the Court grant the foregoing Motion 

for Preliminary Injunction. 

 

DATED: February 6, 2024 

Respectfully submitted, 

/s/ Margaret A. Little 

Margaret A. Little 

Lead Attorney 

Senior Litigation Counsel 

Connecticut Bar # 303494 

NEW CIVIL LIBERTIES ALLIANCE 

1225 19th Street NW, Suite 450 

Washington, DC 20036 

Telephone: (202) 869-5210 

Facsimile: (202) 869-5238 

Peggy.Little@ncla.legal 

1

 Plaintiffs will separately file a Motion for Expedited Discovery to obtain limited and targeted 

discovery. Such expedited discovery is essential for the Court to assess what additional and 

tailored preliminary injunctive relief is appropriate and necessary to fully address the details and 

scope of Defendants’ ultra vires and unconstitutional conduct and to prevent further irreparable 

harm to Plaintiffs. 

Case 6:23-cv-00609-JDK Document 11 Filed 02/06/24 Page 2 of 51 PageID #: 119
3 

/s/ Margot J. Cleveland 

Margot J. Cleveland, 

Of Counsel 

Michigan Bar #P83564 

NEW CIVIL LIBERTIES ALLIANCE

Margot.Cleveland@ncla.legal 

/s/ Casey Norman

Casey Norman 

Pro hac vice pending 

Litigation Counsel 

New York Bar #5772199 

NEW CIVIL LIBERTIES ALLIANCE

Casey.Norman@ncla.legal 

Attorneys for Plaintiffs the Daily Wire 

Entertainment LLC and FDRLST Media LLC 

KEN PAXTON

Attorney General of Texas 

BRENT WEBSTER

First Assistant Attorney General of Texas 

GRANT DORFMAN

Deputy First Assistant Attorney General of 

Texas 

RALPH MOLINA

Deputy Attorney General for Legal Strategy 

RYAN D. WALTERS

Chief, Special Litigation Division 

/s/ Susanna Dokupil

SUSANNA DOKUPIL

Lead Attorney 

Special Counsel 

Texas State Bar No. 24034419 

AMY S. HILTON

Special Counsel 

Texas State Bar No. 24097834 

Case 6:23-cv-00609-JDK Document 11 Filed 02/06/24 Page 3 of 51 PageID #: 120
4 

JOHNATHAN STONE

Special Counsel 

Texas State Bar No. 24071779 

Attorneys for Plaintiff the State of Texas 

 

 

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5 

CERTIFICATE OF SERVICE

 I hereby certify that, on February 6, 2024, I caused a true and correct copy of the foregoing 

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

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

 /s/ Margot J. Cleveland 

CERTIFICATE OF CONFERENCE

 I hereby certify that, on February 5, 2024, I, along with my NCLA colleagues’ Peggy Little 

and Casey Norman, as well as counsel for the State of Texas, Susanna Dokupil, conferenced with 

counsel for Defendants, Cristen Handley and Kody Knapp, via a Microsoft Teams conference call 

as required by Local Rule CV-7(h). Defense Counsel oppose Plaintiffs’ Motion for Preliminary 

Injunction. Discussions have conclusively ended in an impasse, leaving an open issue for the court 

to resolve. 

 /s/ Margot J. Cleveland 

Case 6:23-cv-00609-JDK Document 11 Filed 02/06/24 Page 5 of 51 PageID #: 122
IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION 

THE DAILY WIRE, LLC; 

FDRLST MEDIA, LLC; and 

THE STATE OF TEXAS, by and through its 

Attorney General, Ken Paxton, 

Plaintiffs, 

 v. 

DEPARTMENT OF STATE; 

GLOBAL ENGAGEMENT CENTER; 

ANTONY BLINKEN, in his official capacity as 

Secretary of State; 

LEAH BRAY, in her official capacity as Deputy 

Coordinator of the State Department’s Global 

Engagement Center; 

JAMES P. RUBIN, in his official capacity as 

Coordinator for the Global Engagement Center of the 

State Department; 

DANIEL KIMMAGE, in his official capacity as the 

Principal Deputy Coordinator for the Global 

Engagement Center at the State Department; 

ALEXIS FRISBIE, in her official capacity as Senior 

Technical Advisor of the Technology Engagement 

Team for the Global Engagement Center at the State 

Department; 

PATRICIA WATTS, in her official capacity as the 

Director of the Technology Engagement Team at the 

Global Engagement Center at the State Department, 

 Defendants. 

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

MEMORANDUM IN 

SUPPORT OF MOTION FOR 

PRELIMINARY INJUNCTION 

Oral Argument Requested 

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION 

Case 6:23-cv-00609-JDK Document 11 Filed 02/06/24 Page 6 of 51 PageID #: 123
ii 

TABLE OF CONTENTS 

TABLE OF CONTENTS ................................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................................... iii

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

FACTS ............................................................................................................................................ 3

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

I. PLAINTIFFS HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS ............ 17

A. The State Department’s Initiatives Targeting Americans’ Speech and the 

American Press Are Ultra Vires ........................................................................... 17

B. The State Department’s Initiatives Abridge Media Plaintiffs’ First Amendment 

Rights to Freedom of Speech and Freedom of Press ............................................ 21

II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT A PRELIMINARY 

INJUNCTION .................................................................................................................. 34

III. THE BALANCE OF EQUITIES (INCLUDING THE PUBLIC INTEREST)WEIGHS HEAVILY 

IN PLAINTIFFS’ FAVOR ................................................................................................... 35

CONCLUSION ............................................................................................................................. 36

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iii 

TABLE OF AUTHORITIES 

Page(s) 

Cases

Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel. Barez, 

458 U.S. 592 (1982) .................................................................................................................. 20 

Ashcroft v. ACLU, 

535 U.S. 564 (2002) .................................................................................................................. 24 

Ass’n of Club Executives of Dallas, Inc. v. City of Dallas, 

604 F. Supp. 3d 414 (N.D. Tex. 2022) ..................................................................................... 36 

Bantam Books, Inc. v. Sullivan, 

372 U.S. 58 (1963) ............................................................................................ 27, 28, 31, 32, 33 

Bates v. Cty. of Little Rock, 

361 U.S. 516 (1960) .................................................................................................................. 31 

Biden v. Nebraska, 

143 S. Ct. 2355 (2023) .............................................................................................................. 20 

Blum v. Yaretsky, 

457 U.S. 991 (1982) .................................................................................................................. 32 

Briscoe v. Bank of Commonwealth of Ky., 

36 U.S. 257 (1837) .................................................................................................................... 30 

BST Holdings, L.L.C. v. Occupational Safety & Health Admin., U.S. Dep’t of Lab., 

17 F.4th 604 (5th Cir. 2021) ..................................................................................................... 36 

Citizens United v. FEC, 

558 U.S. 310 (2010) .................................................................................................................. 27 

City of Arlington v. FCC, 

569 U.S. 290 (2013) ............................................................................................................ 19, 20 

City of Providence v. Barr, 

|954 F.3d 23 (1st Cir. 2020) ...................................................................................................... 20 

Cooper v. Aaron, 

358 U.S. 1 (1958) ...................................................................................................................... 31 

Dart v. United States, 

848 F.2d 217 (D.C. Cir.1988) ................................................................................................... 21 

Dennis v. Sparks, 

449 U.S. 24 (1980) .................................................................................................................... 32 

Detroit Int’l. Bridge Co. v. Gov’t. of Can., 

192 F. Supp. 3d 54 (D.D.C. 2016) ........................................................................................... 17

Dobbs v. Jackson Women’s Health Org., 

142 S. Ct. 2228 (2022) .............................................................................................................. 21 

Elrod v. Burns, 

427 U.S. 347 (1976) .................................................................................................................. 34 

Evans v. Newton, 

382 U.S. 296 (1966) .................................................................................................................. 33 

First Nat’l. Bank of Bos. v. Bellatti, 

435 U.S. 765 (1978) .................................................................................................................. 27 

Case 6:23-cv-00609-JDK Document 11 Filed 02/06/24 Page 8 of 51 PageID #: 125
iv 

Free Enter. Fund v. PCAOB, 

561 U.S. 477 (2010) .................................................................................................................. 21 

Gallagher v. Neil Young Freedom Concert, 

49 F.3d 1442 (10th Cir. 1995) .................................................................................................. 33 

Gibbons v. Ogden, 

22 U.S. 1 (1824) ........................................................................................................................ 21 

Grosjean v. Am. Press Co., 

297 U.S. 233 (1936) .................................................................................................................. 25 

Healy v. James, 

408 U.S. 169 (1972) .................................................................................................................. 31 

Hill v. Colorado, 

530 U.S. 703 (2000) .................................................................................................................. 26 

Int’l Women’s Day March Planning Comm. v. City of San Antonio, 

619 F.3d 346 (5th Cir. 2010) .................................................................................................... 26 

Jackson v. Metro. Edison Co., 

419 U.S. 345 (1974) .................................................................................................................. 33 

Kirtley v. Rainey, 

326 F.3d 1088 (9th Cir. 2003) .................................................................................................. 33 

Ladd v. Livingston, 

777 F.3d 286 (5th Cir. 2015) .................................................................................................... 17 

Lovell v. City of Griffin, 

303 U.S. 444 (1938) .................................................................................................................. 25 

Lugar v. Edmondson Oil Co., 

457 U.S. 922 (1982) .................................................................................................................. 32 

Lying v. Nw. Ind. Cemetery Prot. Ass’n, 

485 U.S. 439 (1988) .................................................................................................................. 23 

Lyng v. Payne, 

476 U.S. 926 (1986) .................................................................................................................. 17 

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 

142 S. Ct. 2111 (2002) .............................................................................................................. 21 

NAACP v. Alabama, 

357 U.S. 449 (1958) .................................................................................................................. 31 

Nastase v. Barr, 

964 F.3d 313 (5th Cir. 2020) .................................................................................................... 19 

Nat’l. Fed’n of Indep. Bus. v. OSHA, 

595 U.S. 109 (2022) .................................................................................................................. 21 

Near v. Minnesota ex rel. Olson, 

283 U.S. 697 (1931) ............................................................................................................ 28, 32 

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

49 F.4th 439 (5th Cir. 2022) ..................................................................................................... 20 

Netchoice, LLC v. Paxton, 

216 L. Ed. 2d 1313 (Sept. 29, 2023) ......................................................................................... 20 

New York Times Co. v. Sullivan, 

376 U.S. 254 (1964) .................................................................................................................. 24 

Nken v. Holder, 

556 U.S. 418 (2009) .................................................................................................................. 35 

Case 6:23-cv-00609-JDK Document 11 Filed 02/06/24 Page 9 of 51 PageID #: 126
v 

Norwood v. Harrison, 

413 U.S. 455 (1973) .................................................................................................................. 30 

Phelps–Roper v. Nixon, 

545 F.3d 685 (8th Cir. 2008) .................................................................................................... 34 

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

734 F.3d 406 (5th Cir. 2013) .................................................................................................... 35 

R.A.V. v. City of St. Paul, 

505 U.S. 377 (1992) .................................................................................................................. 26 

Richmond Newspapers, Inc. v. Virginia, 

448 U.S. 555 (1980) .................................................................................................................. 24 

Rosenberger v. Rectors and Visitors of Univ. of Va., 

515 U.S. 819 (1995) .................................................................................................................. 28 

Sailors v. Bd. of Educ. of Kent Cty., 

387 U.S. 105 (1967) .................................................................................................................. 31 

Smith v. Turner, 

48 U.S. 283 (1849) .................................................................................................................... 30 

Speech First, Inc. v. Fenves, 

979 F.3d 319 (5th Cir. 2020) .................................................................................................... 28 

Texans for Free Enter. v. Tex. Ethics Comm'n., 

732 F.3d 535 (5th Cir. 2013) .................................................................................................... 36 

Trottie v. Livingston, 

766 F.3d 450 (5th Cir. 2014) .................................................................................................... 17 

United States v. Alvarez, 

567 U.S. 709 (2012) .................................................................................................................. 24 

United States v. Assoc. Press, 

52 F. Supp. 362 (S.D.N.Y. 1943)........................................................................................ 24, 25 

Va. ex rel. Cuccinelli v. Sebelius, 

656 F.3d 253 (4th Cir. 2011) .................................................................................................... 20 

W. Va. State Bd. of Educ. v. Barnette, 

319 U.S. 624 (1943) .................................................................................................................. 23 

Wages & White Lion Invs., LLC, 

16 F.4th 1130 (5th Cir. 2021) ................................................................................................... 35 

Winter v. NRDC, 

555 U.S. 7 (2008) ................................................................................................................ 34, 35 

Statutes

22 U.S.C. § 2656 ................................................................................................................... 1, 4, 18 

31 U.S.C. § 1341 ........................................................................................................................... 19 

31 U.S.C. §1342 ............................................................................................................................ 19 

31 U.S.C. §1517 ............................................................................................................................ 19 

5 U.S.C. § 706 ......................................................................................................................... 17, 20 

Consolidated Appropriations Act, 2023, 

Pub. L. No. 117-328, § 1287, 136 Stat. 4459 (2022) .................................................................. 1 

John S. McCain National Defense Authorization Act for Fiscal Year 2019, 

Pub. L. No. 115-232, § 1284, 132 Stat. 1636 (2018) ............................................................ 5, 18 

Case 6:23-cv-00609-JDK Document 11 Filed 02/06/24 Page 10 of 51 PageID #: 127
vi 

National Defense Authorization Act for Fiscal Year 2017, 

Pub. L. No. 114-328, § 1287, 130 Stat. 2000 (2016) .............................................. 2, 5, 6, 18, 19 

Case 6:23-cv-00609-JDK Document 11 Filed 02/06/24 Page 11 of 51 PageID #: 128
vii 

Other Authorities

Philip Hamburger, 

Courting Censorship, 4 J. FREE SPEECH L. 195 (forthcoming 2024) .................................. 22, 23 

Constitutional Provisions

U.S. CONST. amend. I ............................................................................................................... 1, 21 

U.S. CONST. art. I § 1 ..................................................................................................................... 17 

Case 6:23-cv-00609-JDK Document 11 Filed 02/06/24 Page 12 of 51 PageID #: 129
1 

INTRODUCTION 

Pursuant to Rule 65(a) of the Federal Rules of Civil Procedure, Plaintiffs The Daily Wire, 

LLC, FDRLST Media, LLC, and the State of Texas seek a preliminary injunction to halt one of 

the most egregious government operations to abridge Americans’ speech and the American press 

in the history of the nation. The U.S. Department of State (“State Department”), through its 

Global Engagement Center (“GEC”), is actively intervening in the news-media market to limit 

the reach of, the circulation of, and render unprofitable, disfavored press outlets by funding the 

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

censorship enterprises to covertly suppress speech of a segment of the American press. 

Defendants lack any statutory authority to fund or promote censorship technology or censorship 

enterprises that target the American press and tar disfavored domestic news organizations as 

purveyors of “disinformation.” No enumerated general power to censor speech or the press is 

found in the United States Constitution, and the First Amendment expressly forbids it, providing: 

“Congress shall make no law ... abridging the freedom of speech or of the press.” U.S. CONST. 

amend. I. 

Further, the State Department’s statutory authority is limited to “foreign affairs,” 22 

U.S.C. § 2656, and Congress’ appropriation to the State Department provides for the spending 

of taxpayer dollars solely for the “administration of foreign affairs.”1

 Moreover, in appropriating 

funds to the State Department’s Global Engagement Center (“GEC” or the “Center”), Congress 

included an express limitation, providing “none of the funds authorized to be appropriated or 

otherwise made available to carry out this section shall be used for purposes other than 

1

 Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, § 1287, 136 Stat. 4459, 4974 (2022). 

Case 6:23-cv-00609-JDK Document 11 Filed 02/06/24 Page 13 of 51 PageID #: 130
2 

countering foreign propaganda and misinformation that threatens United States national 

security” or the “policies, security, or stability” of the United States and its allies.2

Yet, without authority and in direct violation of Congress’ statutory appropriation, 

Defendants have converted State Department resources and tools of warfare—information 

warfare—which were developed in the context of national security, foreign relations, and to 

combat American adversaries abroad, to use at home against domestic political opponents and 

members of the American press with viewpoints conflicting with federal officials holding the 

reins of this unlawful administrative power. Defendants have misappropriated and misused 

government resources, technology, funding, employees, and contractors to counter supposed 

domestic “misinformation,” including by researching, assessing, funding, testing, marketing, 

promoting, hosting on a State Department platform, and/or otherwise assisting with or 

encouraging the development and/or use of technology that targets in whole, or in part, 

Americans’ speech and the American press. Defendants’ ultra vires censorship scheme causes 

irreparable harm to Media Plaintiffs who have been branded “unreliable” and “risky” by 

technology promoted by the State Department. 

The State Department’s censorship scheme also abridges Media Plaintiffs’ First 

Amendment rights to freedom of speech and freedom of the press by negatively affecting Media 

Plaintiffs’ circulation of publications, readership, and subscriber and advertising support, and, as 

such, also causes irreparable harm. Further, Texas suffers irreparable harm from Defendants’ 

ultra vires censorship scheme which interferes in Texas’ sovereign right to create and enforce a 

legal code, namely HB 20, which requires social media companies with market power to act as 

2

 National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 1287, 130 Stat. 2000, 2546-48 

(2016). 

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3 

common carriers. The public interest also suffers from Defendants’ ultra vires and 

unconstitutional conduct, as the First Amendment’s guarantee of freedom of speech and freedom 

of the press represents a structural limitation on government power designed to preserve and 

protect individual and national liberty. 

Accordingly, this Court should preliminarily enjoin Defendants, the Department of State, 

the Global Engagement Center, Antony Blinken, Leah Bray, James P. Rubin, Daniel Kimmage, 

Alexis Frisbie, and Patricia Watts, who are sued in their official capacities, from continuing to 

research, assess, fund, test, market, promote, host on its 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. 

FACTS

The Internet—the New Media & the New Public Square 

The advent of the internet has forever changed how the press publishes and the public 

receives news. Media Plaintiffs in this case, The Daily Wire, LLC (“The Daily Wire”), and 

FDRLST Media, LLC (“The Federalist”), hereinafter jointly “Media Plaintiffs,” represent but 

two members of the “New Media” that operate in the twenty-first-century digital landscape by 

publishing on the internet. ECF1 at ¶ 39-42. Due to the public’s rapidly increasing reliance on 

the internet for news, Media Plaintiffs depend heavily on web browsers and social media 

companies to circulate their reporting, obtain new readers, and receive subscriber and advertising 

support for their work. ECF1 at ¶ 44. 

Indeed, recent polls show most Americans rely on the digital media for their source of 

news, with 86% of U.S. adults stating they often or sometimes get news from a smartphone, 

computer or tablet, and a majority of 56% noting they often use digital technology as a source 

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for their news. ECF1 at ¶ 28.3 In contrast, only 37% of U.S. adults reported that they often or 

sometimes get news from print publications. Id. Of those who indicated that they receive news 

digitally, 50% said they often or sometimes use social media as news sources, and 71% responded 

that they use Google or other search engines to get the news. ECF1 at ¶ 34.4 X (formerly known 

as Twitter), Facebook, YouTube, and Instagram, are among the social media companies 

Americans report using for following the news, ranging from 12% who rely on X to 31% of 

respondents who obtain their news from Facebook. ECF1 at ¶¶ 29-33.5

The State Department’s Ultra Vires Activities Subvert the Digital Marketplace of Ideas. 

Defendant State Department’s organic statute charges its Secretary with enumerated duties 

“respecting foreign affairs.” 22 U.S.C. § 2656. The statute which confers authority upon the State 

Department provides that: 

The Secretary of State shall perform such duties as shall from time to time be 

enjoined on or intrusted [sic] to him by the President relative to correspondences, 

commissions, or instructions to or with public ministers or consuls from the United 

States, or to negotiations with public ministers from foreign states or princes, or to 

memorials or other applications from foreign public ministers or other foreigners, 

or to such other matters respecting foreign affairs as the President of the United 

States shall assign to the Department, and he shall conduct the business of the 

Department in such manner as the President shall direct. 

Id. (emphasis added). 

In funding the State Department, Congress appropriated tax dollars to the State Department 

solely for the “administration of foreign affairs.”6

3

 Exh. A at App. 1, Jacob Liedke & Luxuan Wang, News Platform Fact Sheets, Pew Res. Ctr. (Nov. 15, 2023), 

available at https://www.pewresearch.org/journalism/fact-sheet/news-platform-fact-sheet/. 4

 Exh. A at App. 1, supra n.3. 5

 Exh. B at App. 9, Jacob Liedke & Luxuan Wang, Social Media and News Fact Sheet, Pew Res. Ctr. (Nov. 15, 2023), 

available at https://www.pewresearch.org/journalism/fact-sheet/social-media-and-news-fact-sheet/. 6

 Consolidated Appropriations Act, 2023, Pub. L. No. 117-328, § 1287, 136 Stat. 4459, 4974 (2022). 

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5 

Defendant GEC is a multi-agency center housed within Defendant State Department. 

GEC’s origins date to 2011, when the Obama Administration created the Center for Strategic 

Counterterrorism Communications (“CSCC”), by executive order to support federal agency 

communications in targeting “violent extremism and terrorist organizations.” ECF1 at ¶ 49.7

 In 

2016, the Obama Administration issued a second executive order morphing the CSCC into GEC 

but leaving its counterterrorism mission intact. ECF1 at ¶ 50.8

 

However, “[w]hen Congress created GEC through its passage of the National Defense 

Authorization Act (“NDAA”) for fiscal year 2017, the Center’s purpose was expanded beyond its 

original mandate of countering the influence of international terrorists, such as the Islamic State, 

al-Qaeda, and other foreign extremists. Specifically, the 2017 NDAA directed GEC to ‘coordinate 

efforts of the Federal Government to counter foreign state and non-state propaganda and 

disinformation efforts aimed at undermining United States national security interests.’” ECF1 at ¶ 

51.9

 “In 2019, the NDAA further expanded GEC’s mission, authorizing it to counter foreign 

‘propaganda and disinformation’ that undermines not only the United States’ national security 

interests, but also the ‘policies, security, or stability’ of the U.S. and our allies.” ECF1 at ¶ 52.10

“While Congress dramatically expanded the breadth of GEC’s mission, its purpose 

remained limited to combatting ‘foreign’ disinformation.” ECF1 at ¶ 53. And “Congress 

explicitly included a limitation in the spending bills that provided: ‘None of the funds authorized 

to be appropriated or otherwise made available to carry out this section shall be used for purposes 

7

 Exh. C at App. 15, About Us—Global Engagement Center, available at https://www.state.gov/about-us-globalengagement-center-2/ (last visited June 17, 2023). 

8 Id.

9 Id.; National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 1287, 130 Stat. 2000, 2546-

48 (2016). 

10 John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, § 1284, 132 Stat. 

1636, 2076 (2018). 

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6 

other than countering foreign propaganda and misinformation that threatens United States 

national security.’” ECF1 at ¶ 53.11 (emphasis added). 

While Defendant State Department’s authority and funding is statutorily limited to 

“foreign affairs,” and while Congress expressly forbade Defendant GEC from using funds 

appropriated or otherwise made available to it for anything “other than 

countering foreign propaganda and disinformation,” id., Defendants’ activities and initiatives 

also target Americans’ speech and the American press, including Media Plaintiffs’ speech and 

circulation of their respective publications. As the Complaint details at length, see ECF1, among 

other things, Defendants researched, assessed, funded, investigated, evaluated, tested, marketed, 

and/or promoted over 365 so-called Countering Propaganda and Disinformation or “CPD” tools 

and technologies, including tools and technologies that target American speech and the American 

press. These tools and technologies include so-called fact-checking technologies, media literacy 

tools, media intelligence platforms, social network mapping, and machine learning/artificial 

intelligence technology. ECF1 at ¶ 69.12

Further, Defendants created a government platform, called Disinfo Cloud, that served as a 

repository for these tools and technologies. ECF1 at ¶ 57-58, 65-67.13 Defendants then encouraged 

social media and technology companies to access the database, to test the featured products on the 

State Department’s “test bed” hosted on Disinfo Cloud, to seek Defendant GEC’s assistance in 

11 National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 1287, 130 Stat. at 2548, (2016). 

12 Exh. D at App. 18, Defeat Disinfo, available at https://www.state.gov/defeat-disinfo/ (last visited November 21, 

2023). 

13 Exh. E at App. 22, Disinfo Cloud, available at https://2017-2021.state.gov/disinfo-cloud-launch/index.html (last 

visited November 21, 2023). 

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7 

finding the best CPD tool or technology to meet the company’s “needs,” and to adopt the featured 

CPD tools and technologies. ECF1 at ¶¶ 73-74, 76-77, 79-81.14

At this early stage of litigation, Media Plaintiffs do not know how many of the 365-plus 

tools and technologies that Defendants researched, assessed, funded, tested, developed, hosted on 

its platform, marketed, and/or developed negatively impacted Media Plaintiffs’ speech. ECF1 at 

¶¶ 3, 217. However, open-source information indicates two such tools and technologies—those 

developed by the Global Disinformation Index (“GDI”) and NewsGuard—were among the CPD 

technology entwined in the State Department Defendants’ censorship scheme. ECF1 at ¶¶ 3-4. 

A Sampling of the State Department’s Repository of CPD Tools and Technologies 

GDI is one of the known entities whose product the State Department included in its 

repository of 365-plus CPD tools and technologies. ECF1 at ¶¶ 72, 101. “According to its webpage, 

GDI’s ‘core output’ is its Dynamic Exclusion List of websites and applications that purportedly 

hold a ‘high risk for disinformation.’” ECF1 at ¶ 105.15 GDI’s webpage “explains that it licenses 

its Dynamic Exclusion List to ad tech companies and platforms so that the ‘worst offenders’ are 

defunded and down-ranked, ... thus disrupting the ad-funded disinformation business model.”

ECF1 at ¶ 106.16 “Advertising companies that subscribe to GDI’s blacklist refuse to place ads with 

disfavored news sources, cutting off revenue streams and leaving the blacklisted outlets unable to 

compete with the approved ‘low risk’ media outlets—often legacy news.” ECF1 at ¶ 110.17 “Oracle 

14 Exh. F at App. 26, Margot Cleveland, Government Is Marketing Censorship Tools to Big Tech To Gag 

Conservatives, April 11, 2023, available at https://thefederalist.com/2023/04/11/government-is-marketingcensorship-tools-to-big-tech-to-gag-conservatives/ (last visited November 21, 2023). 

15 Exh. G at App. 34, The Global Disinformation Index, What We Do, available at 

https://www.disinformationindex.org/product (last visited on November 21, 2023). 16 Id. 17 Exh. H at App. 45, Gabe Kaminsky, Disinformation Inc: Microsoft Suspends Relationship With Group 

Blacklisting Conservative News, THE WASHINGTON EXAMINER (Feb. 11, 2023), available at

https://www.washingtonexaminer.com/policy/technology/disinformation-inc-microsoft-xander-conservativedefunded-outlets (last visited on November 21, 2023). 

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and the Microsoft-owned ad company Xandr both subscribed to GDI’s blacklist,” ECF1 at ¶ 111,18

with Xandr in 2022 informing companies “it was adopting GDI’s exclusion list to avoid placing 

ads with outlets that are ‘morally reprehensible or patently offensive,’ lack ‘redeeming social 

value,’ or that ‘could include false or misleading information.’” ECF1 at ¶ 112.19

“The Dynamic Exclusion List identifies multiple American media outlets as having a ‘high 

risk for disinformation.’” ECF1 at ¶ 108.20 While the Dynamic Exclusion List remains unavailable 

to the public, ECF1 at ¶ 115,21 GDI published a separate report on December 16, 2022, entitled 

“Disinformation Risk Assessment: The Online News Market in the United States,” which branded 

Media Plaintiffs as among the top ten “riskiest” American online outlets, as excerpted below. 

ECF1 at ¶ 116.22 It thus stands to reason that GDI similarly identified Media Plaintiffs as posing a 

“high risk for disinformation” on its non-public Dynamic Exclusion List, which, as described 

above, guides advertising companies on which media outlets to blacklist. 

 

18 Id.; Exh. I at App. 48, Gabe Kaminsky, Disinformation Inc: Massive Corporation Oracle Severs Ties With 

Conservative Blacklist Group, THE WASHINGTON EXAMINER (April 19, 2023), available at

https://www.washingtonexaminer.com/news/oracle-ends-global-disinformation-index-partnership-blacklistingconservatives. 

19 Exh. J at App. 51, Gabe Kaminsky, Disinformation Inc: Read One of the ‘Blacklists’ Used Secretly to Defund 

Conservative News, THE WASHINGTON EXAMINER (Feb. 10, 2023), available at

https://www.washingtonexaminer.com/restoring-america/equality-not-elitism/disinformation-inc-read-one-of-theblacklists-used-secretly-to-defund-conservative-news. 20 Id. 21 Exh. K at App. 57, Brief: Disinformation Risk in the United States Online Media Market, October 2022, available 

at https://www.disinformationindex.org/research/2022-10-21-brief-disinformation-risk-in-the-united-states-onlinemedia-market-october-2022/ (last visited on November 21, 2023). 

22 Id. 

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GDI’s Disinformation Risk Assessment: 

The Online News Market in the United States. 

“NewsGuard also compiles a list of American press outlets it characterizes as ‘unreliable.’” 

ECF1 at ¶ 117.23 In March of 2023, NewsGuard’s Co-CEO Gordon Crovitz praised his company 

for “empowering governments, brands, advertising agencies, and non-profit organizations with 

human-vetted insights to support quality journalism and systemically defund sources of harmful 

misinformation.” ECF1 at ¶ 119.24 NewsGuard asserts that its “licensees include search engines 

and platforms, internet service providers, advertising companies, health and medical institutions, 

23 Exh. L at App. 72, NewsGuard FAQ, available at https://www.newsguardtech.com/newsguard-faq/ (last visited 

November 21, 2023). 

24 Exh. M at App. 81, NewsGuard Press Release, March 15, 2023, available at 

https://www.newsguardtech.com/press/newsguard-expands-service-to-australia-new-zealand/ (last visited November 

29, 2023). 

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educational organizations, cybersecurity companies, governments, researchers and more.” ECF1 

at ¶ 121.25 

“Currently, NewsGuard ranks The Daily Wire and The Federalist as ‘unreliable’ media 

outlets.” ECF1 at ¶ 122. Specifically, NewsGuard assigned The Federalist a rating of 12.5 out of 

100, telling users to “Proceed with Maximum Caution” and stating “[t]his website is unreliable 

because it severely violates basic journalistic standards.”26 NewsGuard’s 12.5 rating is overlaid 

on the browser search result for every The Federalist article on all computers that have installed 

NewsGuard’s software. Id. Likewise, computers carrying the NewsGuard software superimpose 

its 12.5 rating on The Federalist articles posted on X. Id. By hovering about the NewsGuard rating, 

users see NewsGuard’s “Proceed with Maximum Caution” rating and its claim that The Federalist 

is unreliable. Id. NewsGuard’s warning appears no matter the topic or the author involved. 

Consequently, articles authored by Professor Philip Hamburger or Senator Rand Paul appearing at 

The Federalist receive 12.5 ratings, while Op-Eds authored by those same gentlemen reach a 100 

rating when published at the Washington Post or the Wall Street Journal. Id. 

NewsGuard currently rates The Daily Wire at 49.5 out of 100: According to NewsGuard’s 

rating level, such outlets are “unreliable because [they] fail to adhere to several basic journalistic 

standards.”27 As is the case with The Federalist and all other outlets rated by NewsGuard, the 

software overlays The Daily Wire’s rating on the browser search results for every The Daily Wire 

article on all computers that have installed NewsGuard’s software.28 Computers carrying the 

NewsGuard software similarly superimpose its 49.5 unreliability rating on The Daily Wire articles 

25 Exh. N at App. 86, NewsGuard Library Partnership Initiative, available at 

https://library.alaska.gov/documents/webinars/dev/newsguard/webinar-slides.pdf (last visited December 1, 2023). 26 Exh. KK at App. 343, Screengrabs: Examples of Search Engine Results from Computer with NewsGuard Installed 

27 Exh. BB at App. 206, NewsGuard, Website Rating Process and Criteria, available at 

https://www.newsguardtech.com/ratings/rating-process-criteria/ 28 Exh. KK at App. 343, supra n.26. 

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posted on X. Id. By hovering about the NewsGuard rating, users see NewsGuard’s “Proceed with 

Caution” rating and its assertion that The Daily Wire “generally fails to maintain basic standards 

of accuracy and accountability.” Id. Again, NewsGuard’s warning appears no matter the topic or 

the author involved. Id. Consequently, articles authored by Professor Philip Hamburger or Senator 

Rand Paul appearing at The Daily Wire receive 49.5 ratings, while Op-Eds authored by those same 

gentlemen receive ratings of 100 when published at the Washington Post or the Wall Street Journal. 

Id. 

According to NewsGuard, more than 800 public libraries use its software on their 

computers.29 An unknown number of public schools likewise have installed NewsGuard on their 

computers.30 NewsGuard also brags that its negative ratings reduce the number of individuals who 

read articles from low-rated media outlets.31, 32 Similarly, NewsGuard notes that a majority of users 

say they are less likely to share an article with friends and families if it is from a source NewsGuard 

rated unreliable. Id.

 In addition to rating media outlets, both GDI and NewsGuard reportedly both “work with 

the World Federation of Advertisers (WFA) and its subsidiary, Global Alliance for Responsible 

Media (GARM) to steer blue-chip advertisers away from outlets like Media Plaintiffs. WFA’s 

membership includes, but is not limited to: ‘Best Buy, Chobani, Dell Technologies, Exxon Mobil, 

General Mills, Hilton, Kellogg, Levi’s, MasterCard, Nike, PepsiCo and Verizon.’” ECF1 at ¶ 

29 Exh. EE at App. 231, NewsGuard, Industries, available at https://www.newsguardtech.com/industries/medialiteracy/ 

30 Exh. FF at App. 234, NewsGuard, NewsGuard for Schools and Universities, available at

https://www.newsguardtech.com/industries/media-literacy-schools-and-universities/ 31 Exh. CC at App. 218, Gallup, NewsGuard’s Online Source Rating Tool: User Experience, available at 

https://www.newsguardtech.com/wp-content/uploads/2019/01/Gallup-NewsGuards-Online-Source-Rating-ToolUser-Experience-1.pdf 

32 Exh. BB at App. 206, NewsGuard, Website Rating Process and Criteria, available at 

https://www.newsguardtech.com/ratings/rating-process-criteria/ 

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102.33 “GARM includes more than 60 leading advertisers and major social media platforms such 

as Facebook, YouTube, Reddit, Snapchat, TikTok and LinkedIn.” Id. 

In addition to featuring NewsGuard and GDI on its Disinfo Cloud platform, Defendants 

promote NewsGuard and GDI through the Disinfo Cloud Twitter account. ECF1 at ¶ 87.34 That 

Twitter account even amplified a GDI post that expressly acknowledged that “its goal was to 

ensure websites deemed ‘disinformation websites’ would be unable to profit from digital ads.” Id.

Similarly, GEC’s State Department-funded contractor promoted censorship tools and technologies 

through its weekly “Disinfo Cloud Digest” that launched in December 2020. ECF1 at ¶ 88.35 The 

Disinfo Cloud Digest summarized “the latest news, events, funding opportunities, and other 

updates related to disinformation, including from the tech vendors featured on [the] Disinfo Cloud” 

platform. Id. The Disinfo Cloud Digest featured censorship tools and technologies that reach 

American outlets, such as NewsGuard’s “Responsible Advertising for News Segment (RANS)” 

tool which Disinfo Cloud promoted in its April 6, 2021 Digest, stating that such technology 

“help[s] advertising companies avoid websites known to host or produce mis/disinformation.” 

ECF1 at ¶ 89.36

33 Exh. O at App. 101, Susan Ferrechio, Subjective rankings sap conservative news assets, THE WASHINGTON 

TIMES, Aug. 15, 2023, at A1. 34 Exh. P at App. 105, @DisinfoCloud Tweets, Dec. 14, 2021, Dec. 20, 2021, available at 

https://twitter.com/DisinfoIndex/status/1472947344865906696;

https://twitter.com/DisinfoCloud/status/1472957094961848324 

https://twitter.com/NewsGuardRating/status/1470799423462596611. 35 Exh. Q at App. 112, The Disinfo Cloud Digest, Dec. 21, 2021, available at 

https://myemail.constantcontact.com/Thank-you-and-farewell--for-now-

.html?soid=1134000290001&aid=ixx_30MZGGU (last visited November 21, 2023). 36 Exh. R at App. 116, The Disinfo Cloud Digest, Apr. 6, 2021, available at 

https://myemail.constantcontact.com/New-tools--a--29M-counter-disinfo-fund--and-amusical.html?soid=1134000290001&aid=6VULxmHPp-M. 

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Defendant GEC also sponsors a “tech challenge” initiative which seeks to identify and 

“advance” “innovative counter-disinformation tech solutions.” ECF1 at ¶ 97.37 These tech 

challenges allowed GEC to identify over 110 censorship tools and technologies, including the 

technology developed by GDI which targets both foreign and domestic media organizations and 

speech, including the speech, circulation of publications, and subscription and advertisement 

support of Media Plaintiffs. ECF1 at ¶¶ 98-100, 125-132. 

After GEC announced its selection of GDI as an award recipient, GDI’s CEO Clare 

Melford, explained that the award, in addition to allowing GDI to increase its “language coverage 

capability,” would also allow GDI to expand its risk assessments into video news and strengthen 

GDI’s “infrastructure” to “support market-wide deployment so that the ad-tech space can offer 

advertisers the chance to choose which sites their ads support.” ECF1 at ¶ 131.38 Melford’s 

statement indicates GDI used some of the $100,000 State Department award to fund the 

infrastructure supporting the Dynamic Exclusion List. Id.; ECF1 at ¶ 127.39

Further, in closing out the U.S.-Paris Tech Challenge, Patricia Watts, a State Department 

employee serving as the Director of Technology Engagement Team or TET40 at GEC, championed 

GDI and the other censorship enterprises featured, saying: “To all of you listening, we encourage 

you to engage with all eight companies featured during the tech challenge to determine if there are 

37 Exh. S at App. 122, Events—Technology Engagement Division, available at https://www.state.gov/upcomingevents-technology-engagement-division/ (last visited November 21, 2023). 

38 Exh. T at App. 128, U.S.-Paris Tech Challenge 2021, Sept. 30, 2021, available at 

https://www.atlanticcouncil.org/event/u-s-paris-tech-challenge/, at 1:25:30 (last visited November 21, 2023). 39 Exh. U at App. 132, Gabe Kaminsky, Disinformation Inc.: State Department Bankrolls Group Secretly 

Blacklisting Conservative Media, Washington Examiner (Feb. 9, 2023), available at 

https://www.washingtonexaminer.com/restoring-america/equality-not-elitism/disinformation-group-secretlyblacklisting-right-wing-outlets-bankrolled-state-department. 40 The Technology Engagement Team has rebranded itself as the Technology Engagement Division: TET and TED 

will thus be used interchangeably throughout to reference this group within GEC. 

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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.” ECF1 at ¶ 132.41

In addition to its international tech challenges, the State Department co-sponsored a 

“COVID-19 misinformation and disinformation” tech challenge in the spring and summer of 2020. 

ECF1 at ¶ 142.42 The three winners of the COVID-19 misinformation and disinformation tech 

challenge were NewsGuard, Peak Metrics, and Omelas—all American companies which offer 

technologies that target Americans’ speech broadcast to Americans. ECF1 at ¶ 143.43 The COVID19 tech challenge’s prize package included a $25,000 State Department-funded award. Winners 

also received the opportunity to further test and refine their technology by piloting the technology 

on the Disinfo Cloud testbed. ECF1 at ¶¶ 144–45.44 According to GEC’s webpage, the State 

Department uses the testbed to “test[] specific tools or technologies against a submitted proposal” 

over the course of six to eight weeks to see how successful the tools are in countering supposed 

propaganda in “real operational” situations. ECF1 at ¶ 91.45 

In a press release announcing it had won the COVID tech challenge, NewsGuard explained 

that it would “help” the State Department by identifying and flagging those spreading alleged 

COVID disinformation and “hoaxes.” ECF1 at ¶ 146.46 “NewsGuard’s technology relied on its 

ratings of news websites, including of American media outlets, such as Media Plaintiffs.” ECF1 

at ¶ 147.47

41 Exh. T at App. 128, supra n.38 42 Exh. V at App. 137, NSIN Challenge—Countering COVID19 Disinformation, available at 

https://www.nsin.mil/events/disinfo-challenge/ (last visited November 21, 2023). 43 Exh. W at App. 140, NewsGuard Press Release, Aug. 17, 2020, available at 

https://www.newsguardtech.com/press/newsguard-wins-pentagon-state-department-contest-for-detecting-covid-19-

misinformation-and-disinformation/ (last visited November 21, 2023). 

44 Exh. V at App. 137, supra n.42 45 Exh. X at App. 145, Programs—Technology Engagement Division, available at https://www.state.gov/programstechnology-engagement-division/ (last visited November 21, 2023). 

46 Exh. W at App. 140, supra n.43 47 Id. 

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The State Department further marketed and promoted the 365-plus tools and technologies 

that it had previously researched, reviewed, assessed, and tested through its “Silicon Valley 

Engagement” initiative, which the State Department’s TET established in December 2019, “to 

facilitate public-private partnership coordination and broker constructive engagements between 

the U.S. government and the tech sector, academia, and research.” ECF1 at ¶¶ 75–78.48 As part of 

the Silicon Valley Engagement initiative, Defendant GEC established a “Silicon Valley location” 

and embedded a State Department employee there. Id.

While publicly sourced documents do not identify the State Department employee 

stationed in Silicon Valley, Defendant Alexis Frisbie from TET stated during a virtual conference 

available on YouTube that GEC’s embedded employee would encourage American tech 

companies to join Disinfo Cloud to identify “a technological solution” suited to the specific tech 

company’s needs to “counter propaganda and disinformation.” ECF1 at ¶ 76.49 The employee 

embedded in Silicon Valley met with the major social media companies, such as Twitter (now X), 

Meta, LinkedIn, and others, as well tech companies providing web browsers services, such as 

Google. ECF1 at ¶ 76, 78, 83–84.50 Leadership of Defendant GEC also regularly engaged with 

members of industry, discussing domestic speech and “the tools and techniques of stopping the 

spread of disinformation on social media . . . .” ECF1 at ¶ 8351 (footnote omitted). 

Further, Defendant GEC highlights on its .gov webpage several organizations and 

resources that the State Department represents to be “counter-disinfo resources” that “offer 

48 Exh. X at App. 145, supra n.45 49 Exh. F at App. 26, supra n.14 50 Exh. F at App. 26, supra n.14; Mad Scientist: Weaponized Information Virtual Conference, July 21, 2020, at 

33:58, 2.09 MadSci Weaponized Information: Technology Engagement Team & Disinfo Cloud - Ms. Frisbie & 

Nemr – YouTube, available at https://www.youtube.com/watch?v=YoeHq5gX0dA. 51 Mad Scientist: Weaponized Information Virtual Conference, July 21, 2020, at 33:58, 2.09 MadSci Weaponized 

Information: Technology Engagement Team & Disinfo Cloud - Ms. Frisbie & Nemr – YouTube, available at

https://www.youtube.com/watch?v=YoeHq5gX0dA.. 

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commercial, non-profit, think tank, and academic technology solutions, dashboards, and research,” 

including the Alliance for Security [sic] Democracy, the Atlantic Council’s Digital Forensic 

Research Lab, the CredCatalog, Fighting Disinformation Online, MediaWell, and Misinformation 

Review. ECF1 at ¶ 174.52 Merely following GEC’s link to these “counter-disinfo” “solutions, 

dashboards, and research” confirms this sampling of featured resources all target the American 

press and/or American speakers, id., including some which promote NewsGuard53 and GDI, both 

of which directly target Media Plaintiffs.54 Id. 

The State Department also funded a seminar in Germany that provided virtual training to 

American teachers on so-called media literacy. “The ‘Medialogues on Propaganda’ training 

sessions, funded by a grant from the U.S. Embassy in Berlin, consisted of 11 online meetings from 

June 2021 to April 2022, with an audience of 700 schoolteachers.”55 Among other things, the StateDepartment funded seminars “pushed a ‘Data Detox Kit,’ which instructs teachers to install 

NewsGuard ...”56

ARGUMENT 

A movant is entitled to a preliminary injunction pursuant to Rule 65(a) of the Federal Rules 

of Civil Procedure upon establishing “(1) a likelihood of success on the merits; (2) a substantial 

threat of irreparable injury; (3) that the threatened injury if the injunction is denied outweighs any 

52 Exh. GG at App. 238, Resources—Technology Engagement Division, available at

https://www.state.gov/resources-technology-engagement-division/ 53 Exh. Y at App. 150, Misinformation Review, June 6, 2023, Less Reliable Media Drive Interest in Anti-Vaccine 

Information, available at https://misinforeview.hks.harvard.edu/article/less-reliable-media-drive-interest-in-antivaccine-information/ (last visited November 21, 2023); See Exh. Z at App. 165, Credibility Catalog, available at 

https://credibilitycoalition.org/credcatalog/ (last visited January 9, 2024). 54 Exh. AA at App. 204, Fighting Disinformation Online, available at https://www.rand.org/research/projects/truthdecay/fighting-disinformation/search/items/disinformation-index.html (last visited November 21, 2023). 55 Exh. HH at App. 242, Luke Rosiak, State Department Paid Germans To Bring Censorship And Propaganda To 

U.S. Schools, The Daily Wire, Jan. 9, 2024, available at https://www.dailywire.com/news/state-department-paidgermans-to-bring-censorship-and-propaganda-to-u-s-schools (last visited January 10, 2024). 

56 Id.

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harm that will result if the injunction is granted; and (4) that the grant of an injunction will not 

disserve the public interest.[]” Ladd v. Livingston, 777 F.3d 286, 288 (5th Cir. 2015) (footnote 

omitted) (quoting Trottie v. Livingston, 766 F.3d 450, 452 (5th Cir. 2014)). As detailed below, 

these four factors all favor Plaintiffs, entitling them to injunctive relief. 

I. PLAINTIFFS HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS. 

A. The State Department’s Initiatives Targeting Americans’ Speech and the 

American Press Are Ultra Vires. 

Plaintiffs have a substantial likelihood of success on the merits of their claims that 

Defendants are acting ultra vires, in plain excess of their statutory authority (counts three and 

four), beyond their constitutional authority (counts four and five) and expending government 

funds and resources beyond their appropriated authority (counts three and four). 

The Administrative Procedure Act (APA), 5 U.S.C. § 500 et seq., establishes a cause of 

action and authorizes a court to “hold unlawful and set aside agency action[]” that, among other 

things, is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory 

right[.]” 5 U.S.C. § 706(2)(C). 

Because the Constitution provides that “[a]ll legislative Powers herein granted shall be 

vested in a Congress of the United States,” U.S. CONST. art. I § 1, to determine whether an agency 

has exceeded its authority, courts must look to an agency’s enabling statute and subsequent 

legislation. See Lyng v. Payne, 476 U.S. 926, 937 (1986) (“[A]n agency’s power is no greater than 

that delegated to it by Congress.”) . “Agency actions beyond delegated authority are ultra vires 

and should be invalidated.” Detroit Int’l Bridge Co. v. Gov’t of Can., 192 F. Supp. 3d 54, 65 

(D.D.C. 2016). 

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In this case, Defendant State Department’s organic statute charges its Secretary with 

enumerated duties “respecting foreign affairs,” providing: 

The Secretary of State shall perform such duties as shall from time to time be 

enjoined on or intrusted [sic] to him by the President relative to correspondences, 

commissions, or instructions to or with public ministers or consuls from the United 

States, or to negotiations with public ministers from foreign states or princes, or to 

memorials or other applications from foreign public ministers or other foreigners, 

or to such other matters respecting foreign affairs as the President of the United 

States shall assign to the Department, and he shall conduct the business of the 

Department in such manner as the President shall direct. 

22 U.S.C. § 2656 (emphasis added). 

Similarly, Congress appropriates funds to the State Department solely for the 

“administration of foreign affairs.”57 Further, the authority of GEC, which is a State Department 

Center, is statutorily limited to countering foreign “propaganda and disinformation efforts aimed 

at undermining or influencing the policies, security, or stability of the United States and [our] 

allies[.]”58 And Congress expressly provided “none of the funds authorized to be appropriated or 

otherwise made available to carry out this section shall be used for purposes other than 

countering foreign propaganda and misinformation that threatens United States national 

security.”59

Nothing in these statutes authorizes Defendants to research, assess, test, market, or 

promote tools and technologies that target Americans’ speech or the American press. Nor do 

these statutes authorize the State Department to help develop technology and technology 

companies that target Americans’ speech or the American press either by funding such 

development or the infrastructures of such companies, or by hosting such companies on a State 

57 Consolidated Appropriations Act, 2023. 

58 John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, § 1284, 132 Stat. 

1636, 2076 (2018). 

59 National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 1287, 130 Stat. 2000, 2548, 

(2016) (emphasis added). 

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Department “testbed” platform where they can refine such technology. Defendants also lack any 

statutory authority, as part of the Silicon Valley Engagement initiative, to discuss with tech 

companies concerns about Americans’ speech or the American press, or to share information 

with tech companies about CPD tools that can be used to target Americans. Accordingly, 

Defendants’ conduct is ultra vires. See Nastase v. Barr, 964 F.3d 313, 318 (5th Cir. 2020) 

(quoting City of Arlington v. FCC, 569 U.S. 290, 298 (2013)) (“[A]n agency acts ultra vires when 

it ‘go[es] beyond what Congress has permitted it to do[.]’”). 

Because the State Department’s appropriation is limited to funding foreign affairs, and 

GEC is expressly prohibited from using funding for a purpose “other than 

countering foreign propaganda and misinformation,” see NDAA for FY 2017, supra at p. 18, 

n.59, Defendants’ funding of initiatives which targets, in whole or in part, Americans’ speech or 

the American press, is also ultra vires, see id., as well as otherwise illegal. See 31 U.S.C. 

§§ 1341(a), 1342 and 1517 (prohibiting federal agencies from obligating or expending federal 

funds outside of, in advance of, or in excess of an appropriation). 

Defendants’ ultra vires conduct and misappropriation of funds inflicts an injury-in-fact on 

Media Plaintiffs, which, at a minimum face blacklisting, demonetization, reduced circulation of 

publications and subscriber and advertiser loss caused by at least two of the more than 365 GEC 

supported CPD tools and technologies. That blacklisting and Defendants’ further ultra vires efforts 

researching, assessing, testing, funding, developing, marketing, and/or promoting the 365-plus 

CPD censorship tools and technologies further chills Media Plaintiffs’ speech, adding to their legal 

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injury: The First Amendment-protected speech of Media Plaintiffs has been chilled as a direct 

result of Defendants’ ultra vires efforts.60

Defendants’ unlawful censorship scheme and misappropriation of tax dollars also inflicts 

an injury-in-fact on Texas, by interfering with Texas’s sovereign right to create and enforce a legal 

code, namely, HB 20, which requires social media companies with market power to act as common 

carriers. See NetChoice, L.L.C. v. Paxton, 49 F.4th 439, 445–46 (5th Cir. 2022), cert. granted in 

part sub nom. Netchoice, LLC v. Paxton, 216 L. Ed. 2d 1313 (Sept. 29, 2023) (explaining how HB 

20 works); see Biden v. Nebraska, 143 S. Ct. 2355, 2366–67 (2023) (holding state had standing to 

challenge agency’s action as exceeding Congressional authority where Department of Education’s 

forgiveness of student loans harmed the state’s “performance of its public function” which was 

“necessarily a direct injury”); Va. ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011) 

(quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel. Barez, 458 U.S. 592, 601 (1982)) 

(“[W]hen a federal law interferes with a state’s exercise of its sovereign ‘power to create and 

enforce a legal code’ [] it inflict[s] on the state the requisite injury-in-fact.”). 

Because no statute provides a “colorable basis” for Defendants to assert the authority to 

engage in any efforts to reduce or lessen the reach of Americans’ speech and the American press, 

or to use appropriated funds to further that scheme, Plaintiffs have a strong likelihood of 

prevailing on the merits of their ultra vires claims. See City of Providence v. Barr, 954 F.3d 23, 

31 (1st Cir. 2020) (“Any action that an agency takes outside the bounds of its statutory authority 

is ultra vires, see City of Arlington, 569 U.S. at 297, and violates the Administrative Procedure 

Act, see 5 U.S.C. §706(2)(c)); see also Nat’l Fed’n of Indep. Bus. v. OSHA, 595 U.S. 109, 119 

60 See Exh. MM at App. 363, Declaration of Sean Davis, FDRLST Media, LLC; Exh. NN at App. 365, Declaration 

of John Bickley, The Daily Wire, LLC. 

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(2022) (quoting Free Enter. Fund v. PCAOB, 561 U.S. 477, 505 (2010)) (OSHA vaccine mandate 

“extends beyond the agency’s legitimate reach[]” evidenced by the “‘lack of historical precedent,’ 

coupled with the breadth of authority that the Secretary now claims[]”). And “[w]hen an executive 

acts ultra vires, courts are normally available to reestablish the limits on his authority.” Dart v. 

United States, 848 F.2d 217, 224 (D.C. Cir.1988)). 

B. The State Department’s Initiatives Abridge Media Plaintiffs’ First 

Amendment Rights to Freedom of Speech and Freedom of Press.

Not only have Defendants acted ultra vires and misappropriated funds restricted to 

combating foreign propaganda and misinformation, but Defendants have also violated Media 

Plaintiffs’ First Amendment rights to freedom of speech and freedom of the press. The Media 

Plaintiffs have a substantial likelihood of success on the merits of their claims that Defendants 

abridged their right to freedom of speech and freedom of press (counts one and two). 

The First Amendment provides: “Congress shall make no law respecting an establishment 

of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the 

press[.]” U.S. CONST. amend. I. (emphasis added). Courts are obliged to interpret the Constitution 

in accordance with its text, structure, and original understanding, informed by history and 

tradition. N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2128 (2002). Moreover, 

“[c]onstitutional analysis must begin with ‘the language of the instrument[,]’ ... which offers a 

‘fixed standard’ for ascertaining what our founding document means[.]” Dobbs v. Jackson 

Women’s Health Org., 142 S. Ct. 2228, 2244–45 (2022) (citation omitted) (first quotation quoting 

Gibbons v. Ogden, 22 U.S. 1, 186–89 (1824)) (second quotation quoting 1 J. Story, 

Commentaries on the Constitution of the United States § 399, p. 383 (1833)). 

Beginning, then, with the text of the First Amendment: “abridging” is the “fixed standard” 

adopted at the Founding for evaluating whether the government has violated the constitutional 

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guarantees of freedom of speech and the press. Dictionaries published contemporaneously with 

the Constitution, such as Samuel Johnson’s Dictionary, define “to abridge” first as “to ‘make 

shorter’ and, second, to ‘contract’ or ‘diminish.’[] Its third meaning was to ‘deprive of,’ including 

to deprive one of a right or privilege.[]” See Philip Hamburger, Courting Censorship, 4 J. FREE 

SPEECH L. 195, Part III.B (forthcoming 2024) (manuscript) (footnotes omitted)61 (quoting 

Abridge, JOHNSON’S DICTIONARY ONLINE (1755 ed.)).62 Other dictionaries, as Hamburger details 

in Courting Censorship, likewise consistently defined “to abridge” as “reducing[]” and 

“secondarily, some add depriving.[]” Id. (footnote omitted). Additional texts published within 

this same time frame further indicate that “abridge” was considered synonymous with “restrain.” 

See id. (quoting 2 THE OLD WHIG: OR, THE CONSISTENT PROTESTANT 225 (London 1739)). Such 

texts, include Federalist No. 84, penned by Alexander Hamilton, wherein he discussed the 

dangers of “an abridgement of the liberty of the press” and stressed how “the liberty of the press 

ought not to be restrained.[]” Id. (footnote omitted) (quoting THE FEDERALIST No. 84 (Alexander 

Hamilton) at 580, note (Jacob E. Cooke ed., 1961)); id. (footnote omitted) (citing THE 

FEDERALIST CONCORDANCE 4 (Thomas S. Engeman, Edward J. Erler, & Thomas B. Hofeller ed., 

1980)) (“Indeed, the Federalist repeatedly used the word abridging and variations of it in ways 

that typically alluded to reducing.[]”). “Abridging,” as used in the First Amendment thus 

signified the diminishing, reducing, restraining, or contracting freedom of speech or the press. 

The historical record also makes clear that the word “abridge” was intentionally chosen 

in the speech context to create a lower bar for government action than that set for establishing 

unconstitutional government action vis-à-vis the practice of religion. While freedom of speech 

61 Exh. II at App. 249, Philip Hamburger, Courting Censorship, 4 J. FREE SPEECH L. 195, (forthcoming 2024), 

available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4646028 62 Exh. JJ at App. 341, "Abridge, v.a.1755." A Dictionary of the English Language, by Samuel Johnson. 1755, 

available at https://johnsonsdictionaryonline.com/1755/abridge_va (last visited Feb. 6, 2024). 

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and of the press may not be “abridged,” free exercise of religion cannot be “prohibited,” the latter 

term historically meaning “[t]o forbid; to interdict by authority.” Id. (quoting SAMUEL JOHNSON’S 

DICTIONARY ONLINE, prohibit (1755 ed)). Thus, “[a] law prohibiting is prototypically one that 

comes with the force of law, perhaps its inward obligation and at least its outward coercion.” 

Hamburger, supra p. 22 at 46. See also Lyng v. Nw. Ind. Cemetery Prot. Ass’n, 485 U.S. 439, 

450–51 (1988) (explaining “[t]he crucial word in the constitutional text is ‘prohibit’” and 

concluding the Free Exercise Clause protects against ‘indirect coercion or penalties on the free 

exercise of religion, not just outright prohibitions[]’”). Accordingly, while some degree of 

governmental coercion is acceptable according to the plain text of the First Amendment in the 

free exercise context, in the free expression context, “not even a minor prohibition is required for 

abridging the freedom of speech.” Hamburger, supra p. 22, Part III.B. 

The First Amendment’s use of the term “abridging,” rather than “infringing” or 

“prohibiting,” in the context of freedom of speech and freedom of the press reflects the Framers’ 

recognition that such rights could only truly be preserved in the absence of any governmental 

limitation on free speech or freedom of the press, including, especially, on matters of public 

interest, importance, or debate. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 

(1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or 

petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of 

opinion or force citizens to confess by word or act their faith therein.”). Indeed, “[t]he very 

purpose of the First Amendment is to foreclose public authority from assuming a guardianship 

of the public mind. . . . In this field, every person must be his own watchman for truth, because 

the forefathers did not trust any government to separate the true from the false for us.” Thomas 

v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring). 

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Put otherwise, the government may play no role in limiting public discourse or restricting 

the free flow of ideas, opinions, debate, and association for “[t]he First Amendment embodies 

more than a commitment to free expression and communicative interchange for their own sakes; 

it has a structural role to play in securing and fostering our republican system of selfgovernment.” See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 587 (1980) (plurality 

opinion); see also Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (quoting Bolger v. Youngs Drug 

Products Corp., 463 U.S. 60, 65 (1983)) (“‘[G]overnment has no power to restrict expression 

because of its message, its ideas, its subject matter, or its content.’”). Indeed, as Judge Learned 

Hand recognized, the rationale underlying the First Amendment is that “right conclusions are 

more likely to be gathered out of a multitude of tongues, than through any kind of authoritative 

selection.” United States v. Assoc. Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943). 

As the Supreme Court in United States v. Alvarez, 567 U.S. 709, 728 (2012) explained: 

The First Amendment itself ensures the right to respond to speech we do not like, 

and for good reason. Freedom of speech and thought flows not from the beneficence 

of the state but from the inalienable rights of the person. And suppression of speech 

by the government can make exposure of falsity more difficult, not less so. Society 

has the right and civic duty to engage in open, dynamic, rational discourse. These 

ends are not well-served when the government seeks to orchestrate public 

discussion through content-based mandates. 

Our constitution’s “profound” commitment to the principle of free speech is even more necessary 

when, as here, the debate may include critical or “unpleasantly sharp attacks” on the government 

or its policies. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). 

The guarantee of freedom of the press is likewise protected from government 

“abridgement” by the First Amendment. The constitutional protection of freedom of the press is 

thus exceedingly broad and while it undoubtedly protects against prior restraints on publication, it 

is not limited to “any particular way of abridging” the right, for “[t]he evils to be prevented were 

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not the censorship of the press merely, but any action of the government by means of which it 

might prevent such free and general discussion of public matters as seems absolutely essential to 

prepare the people for an intelligent exercise of their rights as citizens.” Grosjean v. Am. Press 

Co., 297 U.S. 233, 249–50 (1936) (quoting 2 COOLEY’S CONSTITUTIONAL LIMITATIONS, 8th ed., 

p. 886). As such, the Supreme Court has long accorded constitutional protection to the press to 

disseminate the news, for “liberty of circulating” is essential to a free press, and “without the 

circulation, the publication would be of little value.” Lovell v. City of Griffin, 303 U.S. 444, 452 

(1938) (quoting Ex Parte Jackson, 96 U.S. 727, 733 (1877)). 

The government abridges freedom of the press by “penalizing the publishers and curtailing 

the circulation of a selected group of newspapers.” Grosjean, 297 U.S. at 251. And the First 

Amendment’s guarantee of a free press is infringed when government-supported and promoted 

third-parties rate media outlets in order to suppress and defund them for “freedom to publish means 

freedom for all and not for some.” Assoc. Press v. United States, 326 U.S. 1, 20 (1945). Further, 

freedom of the press “rests on the assumption that the widest possible dissemination of information 

from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a 

condition of a free society.” Id.

Defendants’ own conduct, which, as detailed above, includes GEC’s recruitment of social 

media and tech companies to join a platform owned and operated by the State Department, to 

identify, test, and then adopt tools and technologies that restrict, downgrade, and/or demonetize 

Americans’ speech and the American press—diminishes, reduces, restrains, and contracts Media 

Plaintiffs’ speech and circulation of publications. The breadth of the restraint on Media Plaintiffs’ 

speech and circulation is, as yet, unknown. For instance, GEC may be assisting and encouraging 

web browsers and social media companies to adopt technology that hides The Daily Wire and The 

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Federalist’s reporting, or GEC may provide technology, algorithms, or other proprietary 

information to assist in the blocking of Media Plaintiffs’ speech, or it may provide key words or 

topics to technology companies to trigger the flagging of Media Plaintiffs’ reporting as 

“misinformation.” At a minimum, though, the evidence shows 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 technologies direct the public 

and advertisers away from Media Plaintiffs. These facts more than suffice to establish Defendants 

are abridging The Daily Wire and The Federalist’s speech and press rights. 

This abridgement is especially egregious as the blacklisting of The Daily Wire and The 

Federalist’s speech and circulation constitutes viewpoint-based discrimination. See Hill v. 

Colorado, 530 U.S. 703, 723 (2000) (citing Consolidated Edison Co. of N.Y. v. Public Serv. 

Comm’n of N.Y., 447 U.S. 530, 538 (1980)) (“viewpoint-based” regulation is especially 

“obnoxious” to the First Amendment). In fact, Defendants’ censorship scheme in this case brings 

to life the “rationale of the general prohibition” against content- and/or viewpoint-based regulation, 

namely that “content discrimination raises the specter that the Government may effectively drive 

certain ideas or viewpoints from the marketplace.” R.A.V. v. City of St. Paul, 505 U.S. 377, 387 

(1992) (emphasis added) (quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims 

Bd., 502 U.S. 105, 116 (1991)) (quotation marks omitted). See also Int’l Women’s Day March 

Planning Comm. v. City of San Antonio, 619 F.3d 346, 359 (5th Cir. 2010) (citing Pleasant Grove 

City v. Summum, 129 S. Ct. 1125, 1132 (2009)) (“[C]ontent-based burdens on speech in a public 

forum are subject to strict scrutiny, while viewpoint-based burdens are [absolutely] 

unconstitutional.”). Driving those deemed by the government purveyors of misinformation from 

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the information superhighway of the digital age is precisely the goal of the State Department’s 

censorship scheme—and as such, it is clearly unconstitutional. 

This scheme is profoundly dangerous, especially where, as here, the government decides 

what qualifies as misinformation or disinformation. As the Supreme Court has observed: 

“Speech is an essential mechanism of democracy, for it is the means to hold 

officials accountable to the people. . . . Premised on mistrust of governmental 

power, the First Amendment stands against attempts to disfavor certain subjects or 

viewpoints. . . . Prohibited, too, are restrictions distinguishing among different 

speakers, allowing speech by some but not others. . . . As instruments to censors, 

these categories are interrelated: Speech restrictions based on the identity of the 

speaker are all too often simply a means to control content.” 

Citizens United v. FEC, 558 U.S. 310, 339–40 (2010) (internal citations omitted). 

The government is “constitutionally disqualified from dictating the subjects about which 

persons may speak and the speakers who may address a public issue.” First Nat’l Bank of Bos. v. 

Bellatti, 435 U.S. 765, 784–85 (1978) (citing Police Dep’t of Chicago v. Mosley, 409 U.S. 92, 96 

(1972)). The Court’s reasoning that “[s]uch power in government to channel the expression of 

views is unacceptable under the First Amendment[]” and that that is “[e]specially” true when the 

attempted “suppression of speech suggests an attempt to give one side of a debatable public 

question an advantage.[]” Id. at 785 (footnotes omitted) (citation omitted). 

That the object of the State Department’s scheme is suppression further renders it an 

unconstitutional de facto prior restraint. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67, 70 

(1963) (holding decision by governmental officials to “list particular publications as 

objectionable” constitute an unconstitutional “system of prior administrative restraints” without 

judicial oversight, where Defendants “deliberately set out to achieve the suppression of 

publications” through “informal sanctions,” including “the threat of invoking legal sanctions and 

other means of coercion, persuasion, and intimidation[]”). See also Near v. Minnesota ex rel. 

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Olson, 283 U.S. 697, 703, 711–12 (1931) (concluding statute constituted a prior restraint because 

its object was “not punishment, in the ordinary sense, but suppression of the offending newspaper 

or periodical”). Prior restraints are the most offensive of all First Amendment violations, with 

“[a]ny system of prior restraint coming to the courts bearing a heavy presumption against its 

constitutional validity.” Bantam Books, 372 U.S. at 70. 

Further, to prevail on their freedom of speech and press claims, Media Plaintiffs need not 

establish that Defendants succeeded in reducing speech or circulation of their respective 

publications. Rather, it is sufficient to show that the government’s funding, support, and collusion 

with private parties “cast disapproval on particular viewpoints” and “risk[ed] the suppression of 

free speech and creative inquiry[.]” Rosenberger v. Rectors and Visitors of Univ. of Va., 515 U.S. 

819, 836 (1995). The State Department’s censorship scheme alleged in this case functions in 

precisely such a way. Moreover, not only has Defendants’ unconstitutional conduct risked the 

suppression of Media Plaintiffs’ First Amendment rights, but it also results in the chilling of Media 

Plaintiffs’ speech. Speech First, Inc. v. Fenves, 979 F.3d 319, 332 (5th Cir. 2020) 

(“‘[C]onstitutional violations may arise from the deterrent, or “chilling,” effect of governmental 

regulations that fall short of a direct prohibition against the exercise of First Amendment rights.’”) 

(quoting Laird v. Tatum, 408 U.S. 1, 11 (1972)). 

 While the chill from the State Department’s censorship scheme is a sufficient constitutional 

injury for Media Plaintiffs to prevail on their First Amendment claims, see id., in this case, in 

seeking funding from the State Department, GDI bragged that its technology caused a monetary 

harm to those outlets it branded as “disinformation peddlers.” ECF1 at ¶ 129 (citation omitted). 

Specifically, Danny Rogers, the American partner in GDI, confirmed that “over a dozen ad-tech 

companies,” covering “20 different media markets,” used GDI’s technology and that its 

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technology succeeded in “cutting the number of ad options” by over half, “redirecting millions of 

dollars away from disinformation peddlers toward quality journalism.” Id. at ¶ 129.63 Clare 

Melford, Rogers’s business partner and CEO of GDI, similarly stated in a March 2022 podcast 

that the blacklist “had a significant impact on the advertising revenue that has gone to those sites.” 

Id. at ¶ 130.64

Similarly, NewsGuard, which ranks both The Daily Wire and The Federalist as 

“unreliable,” attests that its goal is to deprive disfavored news sites of revenue, stating that it 

licenses its so-called “White List of legitimate news sites to advertisers, which will cut off revenues 

to fake news sites.” Id. at ¶ 120.65 NewsGuard also confirms that its “licensees include search 

engines and platforms, internet service providers, advertising companies, health and medical 

institutions, educational organizations, cybersecurity companies, governments, researchers and 

more.” Id. at ¶ 121.66

As detailed in the complaint, open-source evidence also establishes Defendants engaged in 

multiple ultra vires activities designed to induce third parties to adopt GDI and NewsGuard 

technology that inflicts this monetary harm on the American press. See, e.g., id. at ¶ 132 (Defendant 

Watts, the Director of TET at GEC, championed GDI and encouraged individuals to “engage” with 

the company “to determine if there are opportunities to support their counter-disinformation 

work[,]” stating “[t]heir work benefits us all in building a better information environment, so 

please do reach out to them or to us.”);67 id. at ¶ 87 (Disinfo Cloud Twitter feed promoting 

NewsGuard’s claim it would “ensure websites deemed ‘disinformation websites’ would be unable 

63 Exh. T at App. 128, supra n.38 64 Exh. U at App. 132, supra n.39 65 Exh. N at App. 86, supra n.25 66 Id. 67 See Exh. T at App. 128, supra n.38 

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to profit from digital ads”68); id. at ¶ 89 (“Disinfo Cloud Digest featured censorship tools and 

technologies that reached American outlets, such as NewsGuard’s ‘Responsible Advertising for 

News Segment (RANS)’ tool which Disinfo Cloud promoted in its April 6, 2021 Digest, stating 

that such technology ‘help[s] advertising companies avoid websites known to host or produce 

mis/disinformation.’”69). These facts thus create a reasonable inference that Defendants’ ultra vires 

conduct actually reduced Media Plaintiffs’ circulation of their publications and negatively 

impacted subscriber and advertising support—even though proof of neither would be required for 

Media Plaintiffs to prevail on their First Amendment claims. 

That Defendants curtail Media Plaintiffs’ circulation of their publications indirectly 

through a multi-step scheme is of no moment. Whether the government abridges freedom of speech 

or freedom of the press directly or indirectly is irrelevant, as it is “axiomatic” that the Government 

may not “induce, encourage, or promote private persons to accomplish what it is constitutionally 

forbidden to accomplish.” Norwood v. Harrison, 413 U.S. 455, 465 (1973) (quoting Lee v. Macon 

Cnty. Bd. of Educ., 267 F. Supp. 458, 475–76 (M.D. Ala. 1967)). The nearly two-hundred year old 

principle that “a state ... cannot [do] indirectly[] what it is prohibited from doing directly[,]” 

Briscoe v. Bank of Commonwealth of Ky., 36 U.S. 257, 316 (1837), confirms that Media Plaintiffs 

have a strong likelihood of success on the merits of their freedom of speech and freedom of press 

claims. See also Smith v. Turner, 48 U.S. 283, 458 (1849) (“It is a just and well-settled doctrine 

established by this [C]ourt, that a State cannot do that indirectly which she is forbidden by the 

Constitution to do directly.”). This doctrine is a logical necessity if the Constitution is to be more 

than a dead letter. Put otherwise, if the government can simply outsource constitutional violations 

68 Exh. P at App. 105, supra n.34. 69 Exh. R at App. 116, supra n.36. 

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to third parties—whether or not those parties are willing participants—the Constitution is 

meaningless. 

Consistent with this doctrine, in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462–

63 (1958), the Supreme Court held that the First Amendment’s guarantee of Americans’ right to 

freedom of speech prohibited the state from forcing the NAACP to disclose its membership list. 

Although the government’s interference with NAACP members’ associational rights was indirect, 

the Court concluded that it nonetheless unconstitutionally abridged their associational rights. Id. 

at 462. The Supreme Court reaffirmed that point in Healy v. James, 408 U.S. 169, 183 (1972), 

stressing “the Constitution’s protection is not limited to direct interference with fundamental 

rights.” See also Bates v. City of Little Rock, 361 U.S. 516, 523 (1960) (citing Grosjean v. Am. 

Press Co., 297 U.S. 233 (1936)) (“Freedoms such as these are protected not only against heavyhanded frontal attack, but also from being stifled by more subtle government interference.”); 

Sailors v. Bd. of Educ. of Kent Cnty., 387 U.S. 105, 108 n.5 (1967) (citations omitted) (“Nor can 

the restraints imposed by the Constitution on the States be circumvented by local bodies to whom 

the State delegates authority.”); Cooper v. Aaron, 358 U.S. 1, 17 (1958) (“The constitutional rights 

of children not to be discriminated against in school admission on grounds of race or color declared 

by this Court in the Brown case can neither be nullified openly and directly by state legislators or 

state executive or judicial officers, nor nullified indirectly by them through evasive schemes for 

segregation whether attempted ingeniously or ingenuously.”) (emphasis added) (internal quotation 

and citation omitted). 

Further, as the Supreme Court recognized in Bantam Books, Courts “look through forms to 

the substance and recognize that informal censorship may sufficiently inhibit the circulation of 

publications to warrant injunctive relief.[]” See Bantam Books, 372 U.S. at 67 (footnote omitted).

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In Bantam Books, as in this case, the government “deliberately set about to achieve the suppression 

of publications deemed ‘objectionable’ and succeeded in its aim.[]” Id. (footnote omitted). In other 

words, the “substance” and not the form of the government’s conduct proved dispositive to the 

question of abridgement. As the Supreme Court stressed in Near v. State of Minnesota ex rel. 

Olson, 283 U.S. 697, 708 (1931), “it is enough to say that in passing upon constitutional questions 

the court has regard to substance and not to mere matters of form, and that, in accordance with 

familiar principles, the state must be tested by its operation and effect.” (citations omitted). Media 

Plaintiffs’ allegations overwhelmingly show Defendants’ “operation and effect” was to abridge 

their freedom of speech and the press, with the government acting to “suppress” speech. 

While the “abridging” standard of the First Amendment controls, rendering Defendants’ 

censorship scheme unconstitutional, see supra at 19–30, the Media Plaintiffs also have a strong 

likelihood of prevailing on their freedom of speech and freedom of the press claims under the 

varied other standards courts have applied in the context of the First Amendment. For instance, 

the evidence indicates GEC significantly encouraged the use of the censorship technology, which 

renders the third-party conduct state action under Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). 

Additionally, the regular coordination between tech companies and the Silicon Valley Engagement 

employee embedded there establishes that the private actors operated as willful participants in joint 

activity with the government. Lugar v. Edmondson Oil Co., 457 U.S. 922, 941 (1982); Dennis v. 

Sparks, 449 U.S. 24 (1980). Similarly, through Silicon Valley Engagement, Disinfo Cloud, 

testbed, and the various tech challenge initiatives, 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, rendering the government 

liable for the constitutional abridgement of Media Plaintiffs’ speech and press rights. Jackson v. 

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Metro. Edison Co., 419 U.S. 345, 357 (1974); Evans v. Newton, 382 U.S. 296, 299 (1966). GEC 

also “knowingly accept[ed] the benefits derived from unconstitutional behavior[]” by reaping the 

reward of the censorship of disfavored American media outlets through their joint efforts with 

social media companies and tech companies providing web browsing services. Kirtley v. Rainey, 

326 F.3d 1088, 1093 (9th Cir. 2003) (quoting Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 

1486 (9th Cir. 1995). For this added reason, GEC is liable for the abridgement prompted by its 

joint engagement with Silicon Valley tech companies. Id. See also Gallagher v. Neil Young 

Freedom Concert, 49 F.3d 1442, 1453 (10th Cir. 1995) (joint action may also be proven by 

showing that government officials and private parties have acted in concert in effecting a particular 

deprivation of constitutional rights). 

In sum, Media Plaintiffs have been deprived of their First Amendment rights to free speech 

and freedom of the press because of the “substance” of the State Department Defendants’ 

censorship scheme. That alone is enough to establish a strong likelihood of success on the merits 

of Media Plaintiffs’ First Amendment claims.70 See Bantam Books, 372 U.S. at 70–71. Media 

Plaintiffs, however, also have a strong likelihood of success on these claims given Defendants’ 

significant encouragement to third parties to use CPD tools and technologies, given the extent of 

joint censorship activities with social media and Big Tech companies, and given the excessive 

entanglement between Defendants, organizations developing CPD tools and technologies, and 

groups using the CPD tools and technologies targeting Media Plaintiffs’ speech and circulation of 

publications. 

70 Defendants’ constitutional violation also renders its conduct ultra vires and illegal under the APA. 

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II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM ABSENT A PRELIMINARY INJUNCTION. 

To satisfy the irreparable harm requirement, a plaintiff need only demonstrate that absent 

a preliminary injunction, he is “likely to suffer irreparable harm before a decision on the merits 

can be rendered.” Winter v. NRDC, 555 U.S. 7, 22 (2008) (citation omitted). The deprivation of 

a constitutional right, “for even minimal periods of time, unquestionably constitutes irreparable 

injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Thus, if a plaintiff establishes a sufficient 

likelihood of success on the merits of a First Amendment claim, he also establishes irreparable 

harm. See Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 295 (5th Cir. 2012) 

(“Opulent Life has satisfied the irreparable-harm requirement because it has alleged violations 

of its First Amendment” rights.). 

As detailed above, Media Plaintiffs have established a strong likelihood of success on the 

merits of their First Amendment claims and thus have also established irreparable harm. The 

irreparable harm is particularly acute because, 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. Indeed, once 

such technologies are adopted by third parties, the censorship-by-technology will be in place, and 

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

Nor can money make the Media Plaintiffs whole again, for the Defendants enjoy 

sovereign immunity from monetary damages. So, while the State Department intentionally 

enlisted and promoted blacklisting companies which bragged about “systemically defund[ing]” 

disfavored members of the press and “redirecting millions of dollars away from disinformation 

peddlers toward quality journalism,” the Media Plaintiffs have no recompense from the 

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government for the State Department’s violation of their First Amendment rights. ECF1 ¶¶ 119–

20, 129.71 Where costs are not recoverable because the government-defendant enjoys sovereign 

immunity from monetary damages, irreparable harm is generally satisfied. Wages & White Lion 

Invs., LLC, 16 F.4th 1130, 1142 (5th Cir. 2021). That is because the only possible relief is for the 

Court to order an end to the unconstitutional conduct—which is precisely what the Media 

Plaintiffs seek. 

Similarly, Defendants’ ultra vires censorship scheme and its concomitant 

misappropriation of funds for domestic efforts to combat so-called misinformation, irreparably 

harm Plaintiffs, as once such technology is funded, developed, and adopted, it will prove difficult 

if not impossible to undo the harm to Plaintiffs. Texas suffers irreparable harm from Defendants’ 

ultra vires censorship scheme which interferes in Texas’ sovereign right to create and enforce its 

own laws, namely, HB 20. Cf. Planned Parenthood of Greater Tex. Surgical Health Servs. v. 

Abbott, 734 F.3d 406, 419 (5th Cir. 2013) (citations omitted) (the State’s ability to enforce its 

laws “necessarily suffers [] irreparable harm” when denied the ability to enforce its laws). 

Accordingly, Plaintiffs have established the irreparable harm requirement necessary to obtain a 

preliminary injunction. 

III. THE BALANCE OF EQUITIES (INCLUDING THE PUBLIC INTEREST) WEIGHS HEAVILY IN 

PLAINTIFFS’ FAVOR. 

A preliminary injunction is proper when “the balance of equities tips in [the movant’s] 

favor, and [when] an injunction is in the public interest.” Winter, 555 U.S. at 20. A preliminary 

injunction will always be in the public interest, and the equities will always favor the movant, 

when Plaintiff establishes the likelihood of success on a First Amendment claim. Nken v. Holder, 

71 Exh. M at App. 81, supra n.24; Exh. N at App. 86, supra n.25 

Case 6:23-cv-00609-JDK Document 11 Filed 02/06/24 Page 47 of 51 PageID #: 164
36 

556 U.S. 418, 435–36 (2009). That is because “any interest ... in enforcing an unlawful (and 

likely unconstitutional) [law] is illegitimate.” BST Holdings, L.L.C. v. Occupational Safety & 

Health Admin., U.S. Dep’t of Lab., 17 F.4th 604, 618 (5th Cir. 2021). Conversely, “[i]njunctions 

protecting First Amendment freedoms are always in the public interest.” Texans for Free Enter. 

v. Tex. Ethics Comm’n, 732 F.3d 535, 539 (5th Cir. 2013) (quoting Christian Legal Soc’y v. 

Walker, 453 F.3d 853, 859 (7th Cir. 2006)). Thus, because Plaintiffs have established a likelihood 

of success on the merits, the remaining preliminary injunction “factors are presumed and weigh 

in favor of an injunction.” Ass’n of Club Executives of Dallas, Inc. v. City of Dallas, 604 F. Supp. 

3d 414, 419 (N.D. Tex. 2022), vacated and remanded by 83 F.4th 958, 970 (5th Cir. 2023). See 

also Texans for Free Enter., 732 F.3d at 539. 

CONCLUSION 

For the reasons detailed above, Plaintiffs respectfully request this Court grant Plaintiffs’ 

Motion for a Preliminary Injunction, enjoining Defendants and any individuals and entities acting 

on their behalf 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 in whole, or in part, Americans’ speech or the American press. 

 

 Respectfully submitted, 

/s/ Margaret A. Little 

Margaret A. Little 

Lead Attorney 

Senior Litigation Counsel 

Connecticut Bar # 303494 

NEW CIVIL LIBERTIES ALLIANCE 

1225 19th Street NW, Suite 450 

Washington, DC 20036 

Telephone: (202) 869-5210 

 Facsimile: (202) 869-5238 

Peggy.Little@ncla.legal 

Case 6:23-cv-00609-JDK Document 11 Filed 02/06/24 Page 48 of 51 PageID #: 165
37 

/s/ Margot J. Cleveland 

Margot J. Cleveland, 

Of Counsel 

Michigan Bar #P83564 

NEW CIVIL LIBERTIES ALLIANCE

Margot.Cleveland@ncla.legal 

/s/ Casey Norman

Casey Norman* 

Pro hac vice forthcoming 

Litigation Counsel 

New York Bar #5772199 

Casey.Norman@ncla.legal 

Attorneys for Plaintiffs the Daily Wire 

Entertainment LLC and FDRLST Media LLC 

KEN PAXTON

Attorney General of Texas 

BRENT WEBSTER

First Assistant Attorney General of Texas 

GRANT DORFMAN

Deputy First Assistant Attorney General of 

Texas 

RALPH MOLINA

Deputy Attorney General for Legal Strategy 

RYAN D. WALTERS

Chief, Special Litigation Division 

/s/ Susanna Dokupil

 SUSANNA DOKUPIL

Lead Attorney 

Special Counsel 

Texas State Bar No. 24034419 

AMY S. HILTON

Special Counsel 

Texas State Bar No. 24097834 

Case 6:23-cv-00609-JDK Document 11 Filed 02/06/24 Page 49 of 51 PageID #: 166
38 

JOHNATHAN STONE

Special Counsel 

Texas State Bar No. 24071779 

Attorneys for the State of Texas 

Case 6:23-cv-00609-JDK Document 11 Filed 02/06/24 Page 50 of 51 PageID #: 167
39 

CERTIFICATE OF SERVICE 

 I hereby certify that, on February 6, 2024, I caused a true and correct copy of the foregoing 

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

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

/s/ Margot J. Cleveland 

 Margot J. Cleveland 

Case 6:23-cv-00609-JDK Document 11 Filed 02/06/24 Page 51 of 51 PageID #: 168