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

PLAINTIFFS’ RESPONSE 

IN OPPOSITION TO

MOTION TO DISMISS 

Case 6:23-cv-00609-JDK Document 41 Filed 04/10/24 Page 1 of 37 PageID #: 1093
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TABLE OF CONTENTS

Page

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

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

STATEMENT OF CASE................................................................................................................................1

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

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

STANDARD......................................................................................................................................................4

ARGUMENT.....................................................................................................................................................5

I. DEFENDANTS’ RULE 12(B)(1) MOTION TO DISMISS FOR LACK OF JURISDICTION SHOULD BE 

DENIED BECAUSE PLAINTIFFS HAVE DEMONSTRATED JURISDICTION IF THEIR 

ALLEGATIONS ARE TAKEN AS TRUE, AND THE FACTUAL ATTACK IS INEXTRICABLY 

INTERTWINED WITH THE MERITS OF PLAINTIFFS’ CLAIMS..................................................... 5

II. THIS COURT HAS JURISDICTION OVER ALL OF PLAINTIFFS’ CLAIMS ...................................... 6

A. This Court Has Subject Matter Jurisdiction Over Plaintiffs’ APA Claims.............................7

B. A Final Agency Action Is Not Required for An Ultra Vires APA Claim...............................9

C. Media Plaintiffs Have Standing. .................................................................................................24

D. Texas Has Standing. .....................................................................................................................24

III. ALTERNATIVELY, THIS COURT SHOULD ORDER DISCOVERY PRIOR TO RULING ON 

DEFENDANTS’ MOTION TO DISMISS FOR LACK OF JURISDICTION........................................ 29

IV. THERE IS NO BASIS UNDER RULE 12(B)(1) TO DISMISS PLAINTIFFS’ OFFICIAL CAPACITY 

CLAIMS AGAINST DEFENDANTS. ......................................................................................... 30

CONCLUSION...............................................................................................................................................30

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ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott Labs. v. Gardner, 

387 U.S. 136 (1967) ....................................................................................................................................... 8 

Adams v. Bain, 

697 F.2d 1213 (4th Cir. 1982) ...................................................................................................................... 5 

Apter v. Dep’t of Health & Hum. Servs., 

80 F.4th 579 (5th Cir. 2023)................................................................................................................ 2, 3, 9

Bennett v. Spear, 

520 U.S. 154 (1997) ................................................................................................................................ 7, 27

Califano v. Sanders, 

430 U.S. 99 (1977).......................................................................................................................................... 8 

Clapper v. Amnesty Int’l USA, 

568 U.S. 398 (2013) .............................................................................................................................. 19, 26

Consumer Data Indus. Ass’n v. Texas through Paxton, 

No. 21-51038, 2023 WL 4744918 (5th Cir. July 25, 2023) ....................................................................29

Davis v. Fed. Election Comm’n, 

554 U.S. 724 (2008) .............................................................................................................................. 26, 28

Dobbs v. Jackson Women’s Health Org., 

597 U.S. 215 (2022) .....................................................................................................................................25

Franklin v. Massachusetts, 

505 U.S. 788 (1992) ....................................................................................................................................... 8 

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

528 U.S. 167 (2000) .....................................................................................................................................29

GLO v. Biden, 

71 F.4th 264 (5th Cir. 2023).................................................................................................................. 1, 28

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

946 F.3d 649 (5th Cir. 2019) ............................................................................................................... 27, 29

Irvin v. S. Snow Mfg., Inc., 

517 F.App’x 229 (5th Cir. 2013)........................................................................................................... 2, 10

Jackson v. Biden, 

No. 2:22-CV-241-Z, 2024 WL 406645 (N.D. Tex. Feb. 2, 2024) ........................................................26

Jackson v. Wright, 

82 F.4th 362 (5th Cir. 2023).................................................................................................................. 1, 12

Larson v. Valente, 

456 U.S. 228 (1982) .....................................................................................................................................20

Laufer v. Mann Hospitality, L.L.C., 

996 F.3d 269 (5th Cir. 2021) ........................................................................................................................ 4 

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 

567 U.S. 209 (2012) ....................................................................................................................................... 9 

Menchaca v. Chrysler Credit Corp., 

613 F.2d 507 (5th Cir. 1980) ........................................................................................................................ 4 

Mortensen v. First Federal Savings & Loan Ass’n, 

549 F.2d 884 (3d Cir. 1977).......................................................................................................................... 4 

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

573 F. Supp. 3d 1092 (W.D. Tex. 2021)...................................................................................................25

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

49 F.4th 439 (5th Cir. 2022).......................................................................................................................25

NetChoice, LLC v. Paxton, 

144 S. Ct. 477 (Mem) (Sept. 29, 2023)............................................................................................... 25, 26

Paterson v. Weinberger, 

644 F.2d 521 (5th Cir. 1981) ................................................................................................................... 1, 6

People for the Ethical Treatment of Animals, Inc. v. Tabak, 

622 F. Supp. 3d 581 (D. Md. 2023) ............................................................................................................. 8

Physician Hosps. of Am. v. Sebelius, 

691 F.3d 649 (5th Cir. 2012) ........................................................................................................................ 4 

Pickett v. Texas Tech Univ. Health Sci. Ctr., 

37 F.4th 1013 (5th Cir. 2022).................................................................................................................. 4, 5

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

734 F.3d 406 (5th Cir. 2013) ......................................................................................................................25

Pluet v. Frasier, 

355 F.3d 381(5th Cir. 2004) .......................................................................................................................26

Rumsfeld v. FAIR, 

547 U.S. 47 (2006)........................................................................................................................................24

Sanchez v. R.G.L., 

761 F.3d 495 (5th Cir. 2014) ......................................................................................................................29

Surpitski v. Hughes-Keenan Corp., 

362 F.2d 254 (1st Cir. 1966)......................................................................................................................... 3 

Texas v. EEOC, 

933 F.3d 433 (5th Cir. 2019) ................................................................................................................... 7, 8

Texas v. Mayorkas, 

No. 22-CV-094-Z, 2024 WL 455337 (N.D. Tex. Feb. 6, 2024)..................................................... 26, 28

Texas v. Nuclear Regul. Comm’n, 

78 F.4th 827 (5th Cir. 2023).......................................................................................................................24

Texas v. United States, 

40 F.4th 205 (5th Cir. 2022).......................................................................................................................29

Texas v. United States, 

50 F.4th 498 (5th Cir. 2022)......................................................................................................................... 9 

Texas v. United States, 

809 F.3d 134 (5th Cir. 2015) ......................................................................................................................24

Texas Voters All. v. Dallas Cnty., 

495 F. Supp. 3d 441 (E.D. Tex. 2020)......................................................................................................26

United States ex. rel. Vuyyuru v. Jadhav, 

555 F.3d 337 (4th Cir. 2009) ........................................................................................................................ 6 

Williamson v. Tucker, 

645 F.2d 404 (5th Cir. 1981) ................................................................................................................. 5, 30

Statutes

22 U.S.C. § 2656 note (i)............................................................................................................................ 9, 10

5 U.S.C. § 706 ..................................................................................................................................................... 8 

H.B. 20, 87th Leg. (Tex. 2021)................................................................................................................ 25, 27

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Tex. Bus. & Com. Code Ann. § 120.001......................................................................................................25

Rules

Fed. R. Civ. P. 12 ...................................................................................................................................... 1, 3, 5

Fed. R. Civ. P. 56 ............................................................................................................................................... 5 

Other Authorities

CISA, Cyber Summit 2020: Day Four (Defending our Democracy), 

Combating Misinformation and Disinformation, YouTube,

available at 

https://www.youtube.com/watch?v=WDtstiYHRNc ..........................................................................17

Mad Scientist: Weaponized Information Virtual Conference, July 21, 2020, 

2.09 MadSci Weaponized Information: Technology Engagement Team & Disinfo Cloud - Ms. Frisbie & Nemr 

– YouTube ....................................................................................................................................................17

U.S.-Paris Tech Challenge 2021, 

Sept. 30, 2021, available at https://www.atlanticcouncil.org/event/u-s-paris-tech-challenge/....... 12, 16, 22, 24

Videos and Slides, Medialogue on Propaganda, 

available at https://www.medialogues.de/videos.....................................................................................14

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PLAINTIFFS’ RESPONSE IN OPPOSITION TO MOTION TO DISMISS

STATEMENT OF THE CASE

 The advent of the contemporary internet platform has forever changed how the press 

publishes and the public receives news. From a media market with only a few networks and 

wireservices providing the public access to our nation’s press, the emergence of real-time, on-demand 

media has resulted in the proliferation of countless online media platforms, with a majority (56%) of 

U.S. adults reporting in 2023 that they often get “news from a smartphone, computer or tablet.”1

 As a result of these significant developments in the way consumers engage with media, online 

sources have garnered federal interest. However, to the detriment of a free press, the United States 

Department of State, (“State Department”), statutorily limited to matters of “foreign affairs,” 22 

U.S.C. § 2656, has now targeted media, through Defendants’ funding and promotion of censorship 

technologies and private censorship enterprises. These federally funded and promoted censorship 

programs negatively impact media outlets’ ability to circulate and distribute their publications and limit

their revenue streams. 

Plaintiffs The Daily Wire, LLC (“The Daily Wire”), FDRLST Media, LLC (“The Federalist”), 

(jointly “Media Plaintiffs”), and the State of Texas (collectively, “Plaintiffs”), filed the Complaint in 

this underlying action to halt this egregious government censorship scheme, raising Administrative 

Procedure Act and common law ultra vires claims. Media Plaintiffs also alleged First Amendment 

freedom of the press and freedom of speech claims. ECF1, Complaint at ¶ 272-313. Defendants now 

seek dismissal of Plaintiffs’ Complaint under the guise that Plaintiffs’ lack standing. For the reasons 

detailed below, that Motion should be DENIED. 

INTRODUCTION

Defendants have framed their Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) as an 

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/. 

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attack on jurisdiction, premising that argument on Plaintiffs’ purported lack of Article III standing. 

Defendants have only challenged Texas’s standing on its face, ECF33 at 21, but they have challenged 

Media Plaintiffs’ standing in both a facial and factual attack. A factual attack, which consists of a Rule 

12(b)(1) motion accompanied by supporting evidence, differs from a facial attack in that it challenges 

the jurisdictional facts alleged in the complaint. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). 

When ruling on a factual attack, a plaintiff must prove “through some evidentiary method . . . by a 

preponderance of the evidence that the court does have subject matter jurisdiction.” Id. If, however, 

defendants challenge facts that go to the merits rather than jurisdiction, they raise a “factual merits 

defense”—not a factual attack on jurisdiction. And a “factual merits defense” is “not a response 

cognizable on a motion to dismiss where allegations in [Plaintiff’s] complaint must be taken as true.” 

GLO v. Biden, 71 F.4th 264, 273 (5th Cir. 2023). Such is the case here. Accordingly, this Court should 

deny Defendants’ Rule 12(b)(1) Motion to Dismiss.

Alternatively, this Court should DENY the Motion because Plaintiffs have demonstrated that 

this Court has subject matter jurisdiction by rebutting Defendants’ factual attack through a 

preponderance of the evidence. Plaintiffs’ extensive evidence establishes that Defendants’ ultra vires, 

arbitrary, illegal, and unconstitutional censorship scheme inflicts both a past and an ongoing, 

prospective, and imminent injury on Plaintiffs. See Jackson v. Wright, 82 F.4th 362, 369 (5th Cir. 2023).

The injury to Media Plaintiffs’ circulation and revenue streams is both traceable to Defendants’ ultra 

vires and illegal activities and is redressable by an order enjoining Defendants from continuing to fund 

the research, testing, development, and promotion of tools and technologies that target the domestic 

press and speech. Likewise, Defendants’ ultra vires and illegal activities interfere in Texas’s enforcement 

of H.B.20’s transparency provisions, and more broadly, H.B.20’s mandates against discrimination by 

common carriers, by concealing the government’s involvement in viewpoint-based decisions made via 

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the adoption of the technology promoted by Defendants. Thus, Defendants’ actions harm Texas’s 

sovereign interest, with the injuries both traceable to Defendants’ conduct and redressable by a Court 

order limiting Defendants to addressing foreign propaganda and speech. 

Finally, Defendants have only moved to dismiss the APA claims based on the supposed lack 

of final agency action. ECF33 at 31-32. Plaintiffs maintain that Defendants’ scheme is a final agency 

action. But even if not, Plaintiffs do not need a final agency action to maintain an ultra vires APA 

claim. Apter v. Dep’t of Health & Hum. Servs., 80 F.4th 579, 589 (5th Cir. 2023). Defendants do not 

independently challenge this Court’s jurisdiction over Plaintiffs’ common law ultra vires claims—that 

Defendants acted beyond statutory authority (Count III) and constitutional bounds (Count IV). ECF1

at 59-65 (Complaint ¶¶283-300, 307-313). Thus, they have waived any argument that those claims 

should be dismissed. Irvin v. S. Snow Mfg., 517 F.App’x 229, 231 (5th Cir. 2013) (party waives argument 

by failing to raise it clearly and develop it adequately in opening brief). Even if these claims were 

properly raised, they would fail because Defendants have exceeded the bounds of their authority. 

Therefore, Defendants’ Motion to Dismiss should be DENIED.

2

STATEMENT OF ISSUES 

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

No. Defendants’ factual attack on jurisdiction is actually an attack on the merits and should 

be treated instead only as a facial attack. Plaintiffs have established Defendants’ ultra vires and 

unconstitutional conduct has injured and continues to injure Plaintiffs. Alternatively, Plaintiffs 

have established by a preponderance of the evidence that they have standing, even in light of 

Defendants’ factual attack.

2. Should Plaintiffs’ APA claim be dismissed for lack of jurisdiction?

No. Defendants’ funding, adoption and deployment of specific programs that injure Plaintiffs 

constitutes a final agency action. Alternatively, Plaintiffs may maintain an ultra vires APA claim 

2 Should this Court instead conclude Plaintiffs have not met their burden of establishing standing, it should defer ruling 

on Defendants’ Motion to Dismiss until Plaintiffs have had an opportunity for both discovery and an evidentiary hearing 

to allow Plaintiffs “a chance to discover the facts necessary to establish jurisdiction.” Williamson, 645 F.2d at 414 (citing 

Surpitski v. Hughes-Keenan Corp., 362 F.2d 254 (1st Cir. 1966)). 

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even if Defendants’ actual implementation of the scheme was not a final agency action. Apter 

v. Dep’t of Health & Hum. Servs., 80 F.4th 579 (5th Cir. 2023). 

3. Should the claims against the official capacity Defendants be dismissed?

No. Defendants present no basis for arguing this Court lacks jurisdiction over the official 

capacity claims against Defendants, further demonstrating Defendants’ Motion is, in fact, an 

attack on the merits of the Complaint. Dismissal of the official capacity claims against the 

leaders of the Global Engagement Center and the Technology Engagement Team would be 

inappropriate in any event as those organizations are interagency organizations so an 

injunction against those groups is necessary to ensure injunctive relief is effective.

STANDARD

Federal Rule of Civil Procedure 12(b)(1) governs motions to dismiss for lack of subject-matter 

jurisdiction. FED. R. CIV. P. 12(b)(1). “A ‘facial attack’ on the complaint requires the court merely to 

look and see if plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations 

in his complaint are taken as true for the purposes of the motion.” Menchaca v. Chrysler Credit Corp., 613 

F.2d 507, 511 (5th Cir. 1980) (citing Mortensen v. First Federal Savings & Loan Ass’n, 549 F.2d 884, 891 

(3d Cir. 1977)) (emphasis added). “The burden of proof for a [Federal] Rule [of Civil Procedure] 

12(b)(1) motion to dismiss is on the party asserting jurisdiction,” and, at the pleading stage, the 

plaintiff’s “‘burden is to allege a plausible set of facts establishing jurisdiction.’” Laufer v. Mann 

Hospitality, L.L.C., 996 F.3d 269, 271 (5th Cir. 2021) (quoting Physician Hosps. of Am. v. Sebelius, 691 

F.3d 649, 652 (5th Cir. 2012)). 

“A ‘factual attack’ . . . challenges the existence of subject matter jurisdiction in fact, 

irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are 

considered.” Menchaca 613 F.2d at 511 (citing Mortensen v. First Federal Savings & Loan Ass’n, 549 F.2d 

884, 891–92 (3d Cir.1977) (emphasis added). “[T]here are limits to a district court’s ability to resolve 

fact disputes on a Rule 12(b)(1) motion.” Pickett v. Texas Tech Univ. Health Sci. Ctr., 37 F.4th 1013, 1019 

(5th Cir. 2022). “[T]he question whether the trial court [can] resolve[] factual disputes . . . depends on 

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whether the subject-matter jurisdiction and merits questions are coterminous.” Id. If it is not possible 

to extricate the jurisdictional question from the merits case, the district court should decline to resolve 

the disputed factual issues. Id. 

ARGUMENT

I. DEFENDANTS’ RULE 12(B)(1) MOTION TO DISMISS FOR LACK OF JURISDICTION 

SHOULD BE DENIED BECAUSE (1) PLAINTIFFS HAVE DEMONSTRATED JURISDICTION 

IF THEIR ALLEGATIONS ARE TAKEN AS TRUE; AND (2) THE FACTUAL ATTACK IS 

INEXTRICABLY INTERTWINED WITH THE MERITS OF PLAINTIFFS’ CLAIMS. 

Defendants’ Rule 12(b)(1) Motion to Dismiss, while framed as both a facial and factual 

challenge to jurisdiction, is neither. Instead, Defendants’ Motion attacks the merits of Plaintiffs’ APA 

claims and Media Plaintiffs’ First Amendment claims, as demonstrated by its detailed, albeit faulty, 

discussion of the factual bases underlying both claims. If it is not possible to extricate the jurisdictional 

question from the merits case, the district court should decline to resolve the disputed factual issues. 

Pickett, 37 F.4th at 1019. 

Where, as here, “the jurisdictional facts are intertwined with the facts central to the merits of 

the dispute ... the entire factual dispute is appropriately resolved only by a proceeding on the merits.”

Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). As the Fifth Circuit stated in Williamson v. Tucker, 

645 F.2d 404 (5th Cir. 1981), a contrary holding would deprive the Plaintiffs of the protections 

provided by both Rule 12(b)(6) and Rule 56.3 Id. at 412–13.

The standard for a facial challenge to jurisdiction under Rule 12(b)(1) mirrors that governing 

a Rule 12(b)(6) motion to dismiss for failure to state a claim, as “the court must consider the allegations 

in the plaintiff’s complaint as true.” Id. at 412. But, when a Defendant presents a factual attack to 

jurisdiction, as Defendants do in this case, “no presumptive truthfulness attaches to plaintiff’s 

3 Resolving factual, merits-based disputes at the Rule 12(b)(1) stage would likewise deny Plaintiffs their constitutional right 

to a jury trial, where such a right exists.

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allegations.” Id. at 413. Further, the Court may consider evidence outside the complaint proffered by 

Defendants. Id. Plaintiffs must then present their own admissible evidence to prove standing by a 

preponderance of the evidence, with the judge—and not the jury—sitting as the factfinder. Paterson, 

644 F.2d at 523 (holding Plaintiff must prove “through some evidentiary method ... by a 

preponderance of the evidence that the trial court does have subject matter jurisdiction”).

Here, the so-called jurisdictional facts Defendants cite in support of their Rule 12(b)(1) Motion 

to Dismiss are merits-based—not jurisdictional. See, e.g., United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 

337, 350, 354 (4th Cir. 2009) (explaining jurisdictional facts are wholly distinct from the substantive 

elements of a plaintiff’s claims). For instance, Defendants maintain (incorrectly) that, as a factual 

matter: (1) Media Plaintiffs’ injury was solely in the past; (2) Defendants’ conduct does not interfere 

in Texas’s enforcement of H.B.20; (3) State Department grants and initiatives solely reach foreign 

propaganda and disinformation; (4) Defendants are not responsible for third parties’ actions; and (5)

the State Department did not issue a final action. These disputed facts all concern the underlying 

merits of Plaintiffs’ ADA, common law ultra vires, and constitutional claims. None implicates 

jurisdiction. Or, to the extent Defendants’ factual arguments implicate jurisdiction by attacking 

standing, those arguments are inextricably entwined with the merits of Plaintiffs’ claims. 

Accordingly, this Court should deny Defendants’ factual attack on jurisdiction as their 

challenge is to the merits and not jurisdiction under Rule 12(b)(1). And as a facial attack, taking all 

allegations pleaded as true, Plaintiffs have met their burden. Even Defendants seem to agree, as their 

Motion relies almost entirely on pleading their factual attack.

II. THIS COURT HAS JURISDICTION OVER ALL OF PLAINTIFFS’ CLAIMS. 

Alternatively, should this Court believe Defendants have attacked jurisdictional facts that do 

not implicate the merits, the Court should nonetheless deny Defendants’ Rule 12(b)(1) Motion to 

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Dismiss because this Court has jurisdiction over all of Plaintiffs’ claims. 

A. This Court Has Subject Matter Jurisdiction Over Plaintiffs’ APA Claims. 

Defendants initially assert this Court lacks subject matter jurisdiction over Plaintiffs’ APA 

claims, arguing that the alleged censorship scheme was not a “final agency action.” Typically, an agency 

action is “final” for the purposes of judicial review if two conditions are met: “First, the action must 

mark the ‘consummation’ of the agency’s decisionmaking process ... it must not be of a merely 

tentative or interlocutory nature. And second, the action must be one by which ‘rights or obligations 

have been determined,’ or from which ‘legal consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 

177–78 (1997) (cleaned up) (citations omitted). Notably, “[t]he Supreme Court has long taken a 

pragmatic approach to finality, viewing the APA’s finality requirement as ‘flexible.” Texas v. EEOC, 

933 F.3d 433, 441 (5th Cir. 2019) (internal quotations omitted).

Here, Defendants’ secretive scheme to suppress, defame, defund, discredit, and reduce the 

circulation of a segment of the press by, among other things, funding, marketing, and/or promoting 

censorship tools, technology and censorship enterprises operating in the United States—specifically 

the censorship-by-risk-rating technology and entities—constitutes final agency action under the APA. 

The censorship scheme consists of specific, concrete, and well-defined programs Defendants adopted, 

funded, staffed, and deployed, as clearly identified on their government webpage.4 The adoption and 

deployment of those programs “mark[ed] the consummation of the agency’s decisionmaking process.” 

Bennett, 520 U.S. at 178 (internal quotations omitted). Further, Defendants issued numerous grants to 

implement and deploy the various challenged initiatives. See ECF33-1, Declaration of Daniel Kimmage

at 5-10, ¶¶11-20. An agency’s “decision to approve [a] grant is the ‘consummation of the agency’s 

4 ECF11-25 (official webpage identifying programs adopted by GEC’s Technology Engagement Division); ECF11-5 

(official State Department webpage announcing end of Disinfo Cloud program and informing public to watch webpage 

for new programs). 

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decisionmaking process’ that is of sufficient ‘legal consequence[ ]’ to make the action ‘final’ under the 

APA.” People for the Ethical Treatment of Animals, Inc. v. Tabak, 662 F. Supp. 3d 581, 591 (D. Md. 2023). 

GEC’s deliberative adoption, funding, and deployment of the challenged initiatives satisfies 

the APA’s “‘flexible’” and “‘pragmatic’” finality requirement. Texas v. Equal Emp. Opportunity Comm’n, 

933 F.3d 433, 440–41 (5th Cir. 2019) (internal citations omitted) (quoting Abbott Labs. v. Gardner, 387 

U.S. 136, 149-50 (1967)). Further, legal consequences flow to Plaintiffs from Defendants’ decision to 

adopt programs that reach the domestic press and domestic speech: Defendants’ deployment of the 

challenged initiatives negatively abridges Media Plaintiffs’ press and speech rights and harms Texas’s 

sovereign interest. Plaintiffs need only show they are “direct[ly] and immediate[ly]” impacted by 

Defendants’ decision in the form of “direct effect on [their] day-to-day business.” Abbott Labs v. 

Gardner, 387 U.S. 136, 152 (1967) abrogated by Califano v. Sanders, 430 U.S. 99 (1977). Plaintiffs easily 

meet that standard. 

There is no dispute that the challenged agency action did not go through notice and comment 

rulemaking, nor have Defendants asserted an exception to the notice and comment requirement. See 

5 U.S.C. § 553. Even if they had, this effort would fail because Defendants created a binding norm 

with substantial impact. “While mindful but suspicious of the agency’s own characterization, [courts] 

. . . focus[] primarily on whether the rule has binding effect on agency discretion or severely restricts 

it.” Gen. Elec. Co. v. EPA, 290 F.3d 377, 382 (D.C. Cir. 2002) (quoting McLouth Steel Prods. Corp. v. 

Thomas, 838 F.2d 1317, 1320 (D.C. Cir. 1988). Thus, the agency action is binding once the program 

has been adopted—the agency has committed itself to a particular position. See also Texas v. EEOC, 

933 F.3d at 441. The final agency action here is also substantive because it does not give the agency 

any discretion to change the initiatives and grants funded and deployed. See, e.g., Texas v. U.S., 809 

F.3d. 134, 171 (5th Cir. 2015) (cleaned up). 

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“[A]n agency pronouncement will be considered binding as a practical matter if it either 

appears on its face to be binding, or is applied by the agency in a way that indicates it is binding.” Gen. 

Elec., 290 F.3d at 383 (citation omitted). See also Texas v. EEOC, 827 F.3d 372, 385–86 (5th Cir. 2016), 

opinion withdrawn on reh’g, 838 F.3d 511 (5th Cir. 2016) (“[T]he Guidance does not simply repeat the 

relevant provisions” of a statute. “Instead, the Guidance purports to interpret authoritatively. This 

court has always considered such a distinction important when deciding whether agency action is 

‘final’ under the APA.”). The final agency action here is substantive because it does not give the agency 

any discretion to change the initiatives and grants funded and put into action. See e.g. Texas v. U.S., 809 

F.3d. 134, 171 (5th Cir. 2015) (cleaned up). 

As a final agency action, Defendants’ program is arbitrary and capricious because it failed to 

consider the relevant costs, did not give a sufficient reasoned analysis for awarding grants that target 

the domestic press and domestic speech, did not consider any more limited options, and failed to take 

into account the reliance interests. See 5 U.S.C. 702(2)(A). Therefore, this Court has jurisdiction over 

Plaintiffs’ APA claims.5

B. A Final Agency Action Is Not Required for An Ultra Vires APA Claim. 

Further, even if Defendants’ adoption of the challenged initiatives was not a final agency 

action—it was—as the Fifth Circuit recently held in Apter, 80 F.4th at 589, “when a plaintiff uses the 

APA to assert a ‘non-statutory cause of action’—such as an ultra vires claim,” the agency action need 

not be final. Plaintiffs need only identify “some agency action affecting him in a specific way” and that 

“he has been adversely affected or aggrieved by that action.” Id. (cleaned up). “To satisfy this second 

5 In their Motion to Dismiss, Defendants do not otherwise challenge Plaintiffs’ APA claims that allege Defendants’ actions 

were “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), “(B) 

contrary to constitutional right, power, privilege, or immunity” of Plaintiffs, 5 U.S.C. § 706(2)(B), “(C) in excess of statutory 

jurisdiction, authority, or limitations, or short of statutory right,” 5 U.S.C. § 706(2)(C) , and that Defendants failed to 

observe the “procedure required by law” 5 U.S.C. § 706(2)(D) . ECF1 at 63 (Complaint at ¶¶301-06). 

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requirement, the plaintiff must establish that the injury he complains of falls within the ‘zone of 

interests’ sought to be protected by the statutory provision whose violation forms the legal basis for 

his complaint. Id. at 589-90 (cleaned up). “The test is satisfied if the claims are ‘arguably within the zone 

of interests to be protected or regulated by the statute.’ ... The Supreme Court has ‘always 

conspicuously included the word “arguably” in the test to indicate that the benefit of any doubt goes to the 

plaintiff.” Texas v. United States, 50 F.4th 498, 521 (5th Cir. 2022) (quoting Match-E-Be-Nash-She-Wish 

Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224-25 (2012)) (emphasis added).

Defendants’ various initiatives, including tech challenges, private-sector engagement, Disinfo 

Cloud, the testbed, granting programs, and engagement in various promotional efforts, “adversely 

affect” Plaintiffs “in a specific way,” by rating domestic media by its content. See Apter, 80 F.4th at 

589 (citation omitted). Thus, at a minimum Defendants engaged in an “agency action.” Further, 

Plaintiffs claim that the agency exceeded its authority to regulate foreign affairs and Congress’s express 

limitation on that authority, to wit, [n]one 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.” 22 U.S.C. § 2656 note 

(i). 

Media Plaintiffs are domestic press organizations and Texas’s sovereign interest in enforcing 

H.R.20’s protection of its citizens’ rights to free speech both falls easily within the “zone” Congress 

sought to protect by limiting GEC to only countering foreign speech. At the very least, then, Plaintiffs 

meet the low threshold of being arguably within the “zone of interest” Congress sought to protect 

in limiting GEC to countering foreign propaganda and misinformation. Thus, even if Defendants’

censorship programs are not “final agency action,” this Court has subject matter jurisdiction over 

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Plaintiffs’ ultra vires APA claims.6

C. Media Plaintiffs Have Standing. 

Media Plaintiffs Established an Injury-in-Fact. 

Defendants nonetheless argue Media Plaintiffs have failed to establish an “injury-in-fact” for 

standing purposes because “Media Plaintiffs’ claimed injuries occurred in the past,” and “Plaintiffs do 

not plausibly allege any current activity that causes them ongoing or imminent harm.” ECF33 at 24. 

Not so. As more fully detailed in Plaintiffs’ Preliminary Injunction briefing, Plaintiffs alleged

and presented substantial evidence showing Defendants use Congressionally appropriated funds to 

research, test, develop, and promote tools and technologies to the private sector (hereinafter, 

“censorship scheme”), including to domestic tech and social media companies, injuring Media 

Plaintiffs’ circulation and revenue opportunities. Such use of GEC funding violates Congress’s 

command that “[n]one 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.” 22 U.S.C. § 2656 note (i). Further, and 

contrary to Defendants’ argument that their conduct ended long ago, the evidence establishes the 

harm remains ongoing. 

Two examples prove the point—Defendants’ grants to Park Advisors and Media Literacy 

Now.7 

6 Again, as noted above, Defendants do not challenge this Court’s jurisdiction over Plaintiffs’ common law ultra vires claims, 

waiving any argument those claims should be dismissed for lack of jurisdiction. Irvin, 517 F.App’x at 231. 7 Defendants wrongly reduce Plaintiffs’ lawsuit to a challenge to the State Department’s funding of grants to NewsGuard 

and GDI, both of which received GEC awards and both of which sell supposed media-credibility ratings. However, 

Plaintiffs’ lawsuit is not premised on Defendants providing grants to NewsGuard and GDI, but on the entirety of the 

State Department’s censorship scheme, which entails Defendants funding grants and other initiatives and using GECfunded human and technological resources to identify, research, test, develop, and promote technology that negatively 

impacts the circulation and profitability of the domestic press. But because most of Defendants’ ultra vires and 

unconstitutional activities are hidden from public view, by necessity—and to establish standing—Plaintiffs focus on the 

currently provable aspects of the censorship scheme that confirm Defendants’ illegal conduct injures Plaintiffs, namely 

Defendants’ use of State Department funds and human resources to promote NewsGuard and GDI, as well as the more 

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Park Advisors Uses GEC Funds to Target Domestic Press and Speech. 

The $6.5 million GEC paid Park Advisors funded the Disinfo Cloud platform, management 

of a Twitter (now X.com) account, the publication of the Disinfo Cloud Digest, its management of 

GEC’s testbed, and its running of tech challenges. ECF32 at 12-16 (Defendants’ Response). With 

those GEC funds, Park Advisors researched, tested, analyzed, and promoted what Defendants call 

Countering Propaganda and Disinformation or “CPD” tools and technologies, ECF11-18, which

targeted the domestic press and speech. See, e.g., ECF11-6 at 4-5 (GEC explains Disinfo Cloud helps 

technology providers “identify appropriate counter propaganda and disinformation tools and 

technologies to suit different groups’ needs”); ECF11-17 at 2 (Twitter post promoting GDI); 11-19

at 3 (Disinfo Cloud Digest promoting NewsGuard’s new tool “to help advertising companies avoid 

websites known to host or produce mis/disinformation”). See also, Exhs. A–K (Disinfo Cloud Twitter 

posts promoting GDI, NewsGuard, and other tools and technology targeting domestic speech and 

the domestic press).8 Further, GEC directly promoted those “tools and technologies” to domestic 

tech companies, academia, and journalists, as exemplified in a still-available post on X stating “[t]here 

are [a] number of databases to help journalists, technologists, academics, and others as they monitor 

and analyze #misinformation related to #COVID19.” See, Exh. I (Twitter post by @DisinfoCloud 

highlighting databases for journalists, tech companies, and others). The post then listed several 

databases including NewsGuard’s rating technology, tagging the company’s Twitter handle 

@NewsGuardRating. Id. (Twitter post by @DisinfoCloud Tweet tagging @NewsGuardRating, which 

is NewsGuard’s Nutrition Ratings social media account).

recently discovered funding of the promotion of Logically.AI, Media Literacy Now, and Ad Fontes. See infra at 11-16. 8 Exh. A, @DisinfoCloud Tweet, Dec. 20, 2021; Exh. B, @DisinfoCloud Tweet, Dec. 20, 2021; Exh. C, @DisinfoCloud 

Tweet, Nov. 2, 2020; Exh. D, @publiceditor_io Tweet, Sept. 2, 2021; Exh. E, @Brrrigham Tweet, Nov. 5, 2021; Exh. F, 

@DisinfoCloud Tweet, Nov. 3, 2021; Exh. G, @publiceditor_io Tweet, Dec. 20, 2021; Exh. H, @publiceditor_io 

Tweet, July 15, 2021; Exh. I, @DisinfoCloud Tweet, Apr. 15, 2020; Exh. J, @NewsGuardRating Twitter; Exh. K, 

@DisinfoCloud Tweet, Mar. 25, 2020.

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A still-available video of the U.S.-Paris Tech Challenge run by Disinfo Cloud further 

establishes GEC-funded initiatives are not limited to foreign propaganda and disinformation.9 That 

tech challenge featured the Global Disinformation Index (“GDI,”) which ranks media companies for 

supposed disinformation, including the American press.10 A video of GDI’s presentation includes a 

summary of the organization’s technology, marketed as “allow[ing] advertisers to steer their spend 

away from disinformation and toward quality journalism,” with a link to GDI’s webpage.11 The online 

video also includes a GEC-paid Director encouraging listeners to engage with GDI, claiming its 

counter-disinformation work “benefits us all in building a better information environment.”12 GDI 

ranks both The Daily Wire and The Federalist as among the top-ten riskiest online American outlets, 

with the admitted purpose of causing advertisers to avoid them. ECF11-12 at 3 (GDI report with 

table identifying The Daily Wire and The Federalist as among top ten riskiest American outlets).

While GEC’s grant to Park Advisors has allegedly ended and the Disinfo Cloud platform has 

been shuttered, the above GEC-funded promotion of censorship technology that targets Media 

Plaintiffs remains public to this day, and thus the injury is ongoing. That ongoing injury suffices to 

establish injury-in-fact. See Jackson, 82 F.4th at 369 (holding Plaintiff established injury-in-fact for 

standing purposes by alleging “a continuing (i.e., ongoing) or ‘imminent’ future injury”).

State Department Funds Media Literacy Now, Inc. to Target Domestic Press and Speech.

The State Department’s $30,000 grant to Media Literacy Now, Inc., a Massachusetts-based 

corporation “devoted to advancing media literacy in the United States,”13 also funded the promotion 

9 U.S.-Paris Tech Challenge 2021, Sept. 30, 2021, available at https://www.atlanticcouncil.org/event/u-s-paris-tech-challenge/, at 

1:09:30 (last visited April 9, 2024) (video of U.S.-Paris State-Department funded event featuring GDI). 10 Id. (video featuring GDI). 11 Exh. L, U.S.-Paris Tech Challenge 2021, Sept. 30, 2021 (screengrab of video showing slide GDI used to promote its 

technology).

12 U.S.-Paris Tech Challenge 2021, supra at 12 n.11 at 1:26:10 (video capturing director of Technology Engagement Team 

promoting featured technology companies, including GDI) . 13 Exh. M, Final Report, Medialogue on Propaganda at 27 (report detailing use of grant to Media Literacy Now which 

describes that entity as a non-profit seeking to advance “media literacy in the United States”).

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of tools and technologies that target the American press and Americans’ speech. While the grant 

document framed the award as funding a German seminar,14 the final report from Media Literacy 

Now established the seminar provided virtual training to American teachers on so-called media 

literacy.15 Not only were State Department funds used to “educate” American teachers, but recordings 

of the so-called media literacy sessions also establish that the seminars pushed tools and technology 

that target the domestic press, including The Daily Wire and The Federalist.

For instance, Vanessa Otero, who serves on the National Advisory Council for the grant 

recipient, Media Literacy Now and who is the Founder and CEO of Ad Fontes Media, presented an 

entire session on Ad Fontes’s “Media Bias Chart” at the State Department-funded training session.16

The Media Literacy Bias tool focuses almost exclusively on the American press and brands The 

Federalist as “Hyper-Partisan Right” and “Unreliable, Problematic”17 and The Daily Wire as “Strong 

Right” and with a variation in reliability.18 Another session focused on what organizers called a “Data 

Detox Kit,” which among other things instructs teachers to install NewsGuard.19 Once installed, 

NewsGuard’s numeric reliability ratings are automatically super-imposed on search results and social 

media posts, telling students whether to believe the source or not—essentially compelling 

government-assisted incriminating speech on the Plaintiffs’ own articles. ECF11-38 (screengrabs 

illustrating NewsGuard superimposes its rating on search results). Videos of these State Department14 Exh. N, Media Literacy Now Grant Summary, USASpending at 2 (describing purpose of grant). 15 Exh. M, Final Report, Medialogue on Propaganda, in passim (summarizing grant program and participation of American 

teachers).

16 Exh. O, Staff, Media Literacy Now (identifying Otero as a member of Media Literacy Now’s National Advisory 

Council); Exh. T, Vanessa Otero, The Media Bias Chart, Medialogues (screengrab of Otero’s video presentation on Ad 

Fontes’s Media Bias Chart).

17 Exh. P, The Federalist Bias and Reliability, Ad Fontes Media at 2-3 (Ad Fontes’s ranking of The Federalist as “HyperPartisan Right” and “Unreliable” and “Problematic); Exh. Q, Search result: “The Federalist”, Ad Fontes Media Interactive 

Media Bias Chart (Ad Fontes’s chart showing The Federalist’s visual rating). 18 Exh. R, Daily Wire Bias and Reliability, Ad Fontes Media; (Ad Fontes’s ranking of The Daily Wire as “Strong Right” and 

with a variation in reliability); Exh. S, Search result: “Daily Wire,” Ad Fontes Media Interactive Media Bias Chart (Ad 

Fontes’s chart showing The Daily Wire’s visual rating).

19 Exh. U, 6 Tips to Steer Clear of Misinformation Online, Data Detox Kit at 6 (recommending NewsGuard as a “plug-in” to 

fact check articles).

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funded seminars remain available online to this day, including the sessions promoting Ad Fontes and 

the Data Detox Kit.20 Here, too, then, the harm is ongoing. 

GEC Webpage Promotes Resources That Target Domestic Press and Speech. 

Aside from funding outside projects that reach domestic speech, GEC’s Technology 

Engagement Team currently also highlights on its taxpayer-funded webpage an array of what it calls 

“significant counter-disinfo resources.” ECF11-34 (State Department webpage listing “significant counterdisinfo resources” available online). Clicking the GEC-provided links confirms the featured resources 

target the American press and speech, including some which promote NewsGuard and GDI—both 

of which directly target Media Plaintiffs. ECF11-26 at 6 (article from State Department’s 

recommended resource, Harvard Kennedy School Misinformation Review, which used NewsGuard 

ratings to assess reliability of media outlets); ECF11-28 at 2 (promotion of GDI, which is identified 

as rating news “based on the ‘probability of disinformation on a specific media outlet’”).21

Past Conduct Shows There Is a Strong Likelihood Harm Is Ongoing and Imminent. 

In addition to the above examples where Defendants exceeded their Congressional mandate 

to manage foreign affairs and where the harm is continuing, the breadth and reach of Defendants’

other past ultra vires conduct establish a strong likelihood the illegal conduct remains ongoing, 

threatening Plaintiffs with imminent harm. Specifically, the following evidence shows GEC funded a 

censorship scheme and engaged in ultra vires activities that targeted domestic speech and the domestic 

press: 

• The GEC-funded Disinfo Cloud promoted Logically.AI in its “spotlight series” on or about 

20 Videos and Slides, Medialogue on Propaganda, available at https://www.medialogues.de/videos (videos of StateDepartment funded training sessions for American teachers).

21 Even the GEC-promoted technologies that purportedly focus on foreign disinformation, such as the Alliance for 

Secur[ing] Democracy, also target Americans’ speech and the American press. See Exh. V, Matt Taibbi, New Knowledge, The 

Global Engagement Center, and State-Sponsored Blacklists, The Twitter Files Substack at 15-16 (reporting based on internal 

Twitter communications that ASD’s “Hamilton Dashboard” falsely branded Americans’ speech as Russian 

disinformation). 

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April 1, 2021. ECF11-19 at 2 (Disinfo Cloud Digest noting its blog showcased Logically.AI’s 

capabilities, which at-scale allow for “analysis, classification, and detection to help their 

partners monitor the online media landscape for the spread of damaging activities and 

narratives”). Three months later, Facebook contracted with Logically’s “fact-checking team” 

to “review and rate the accuracy of content on Facebook including text, images, videos and 

articles.”22 Logically.AI explained when it “rates a piece of content as false, Facebook will 

significantly reduce its distribution so that fewer people see it, apply a warning label to let 

people know that the content has been rated false, and notify people who try to share it.”23

Logically, which currently provides fact checking for Meta and TikTok,24 does not focus solely 

on foreign speech and includes multiple negative assessments of The Daily Wire’s and The 

Federalist’s reporting.25 Logically.AI also claims that in 2020 and 2022 it “worked with both 

state and federal agencies to safeguard US elections, as well as several NGOs and academics, 

and presently claims “[t]his election year, Logically.AI continues efforts to ensure election 

integrity in the US and around the world.”26

• The GEC-funded testbed developed a trial for “Public Editor,” a company with a selfdescribed function of reviewing the “most-shared news articles” and identifying and labeling 

“specific misinformation appearing in the online news articles which constitute the foundation 

of our public discourse.”27 Following its “successful test” on GEC’s testbed, Public Editor 

boasted it was now “ready to move forward to label and corrent [sic] #misinformation at 

scale,” with next steps including working with “news aggregators” and Facebook & Twitter 

users to counter so-called misinformation.28 Public Editor is not limited to foreign propaganda 

and disinformation.29

• Defendants’ declaration confirms GEC’s $25,000 grant to NewsGuard to test NewsGuard’s 

“Misinformation Fingerprints” reached domestic speech: NewsGuard was told to “take care 

to minimize data collection on U.S. Persons.” ECF32-2 at 10, ¶26. GEC shared the testbed 

results with all Disinfo Cloud users, including American tech and social media companies. 

ECF11-6 at 5 (official State Department webpage stating users of Disinfo Cloud and testbed 

22 Exh. X, Stephen Farrell, Logically Enters UK Fact-Checking Partnership with Facebook, Insider Media, July 16, 2021

(summarizing Logically’s new partnership with Facebook).

23 Id.

24 Exh. Y, Logically Facts Launched to Build Safer Spaces for Online Users, Logically Media (explaining Logically Facts provides 

fact checking for Meta and TikTok). 25 See Exh. Z, False: The World Economic Forum plans to block the sun physically using 'space bubbles' to stop climate change, Logically 

Facts (review of The Daily Wire article); Exh. AA, Ankita Kulkarni, Misleading: Biden has “functionally and effectively” dismantled 

ICE by telling the agents to stand down, Logically Facts, Dec. 20, 2021 (review of The Daily Wire article); Exh. BB, Ganashree 

N A, Misleading: Biden “plans to force schools to allow males to use female bathrooms,” Logically Facts, Jan. 14, 2021 at 1 (review of 

article by The Federalist calling it “a far-right news site that has repeatedly published misinformation and articles

diminishing trans rights”); Exh. CC, Madhukar PB, Misleading: Kamala Harris supports late-term abortion, Logically Facts, Oct. 

26, 2021 (review of article by The Federalist); Exh. EE, @sagared Tweet, Apr. 1, 2021(Tweet by Logically.AI representative 

noting platform was featured in Disinfo Cloud’s spotlight series). 26 Exh. FF, Elections, Logically at 2 (noting Logically.AI helps “[e]lection officials, agencies, and supporting organizations” 

by protecting “local and national elections against interference, both foreign and domestic”). 27 Exh. XX, The Inevitable Evolution of Communication Technologies, Public Editor at 5 (explaining “Public Editor has built a 

collective intelligence system that labels over 40 types of misinformation in the most-shared news articles on the internet 

within 30 minutes of their publication”).

28 Exh. E (Tweet by Public Editor representative announcing successful test with GEC testbed and detailing next steps, 

which include working with Facebook and Twitter users).

29 Exh. GG, Newsreader, Public Editor (Public Editor review of domestic media outlets including Fox News, Blaze Media, 

and Breitbart News Network). 

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include those in “academia, private sector, and tech vendors”). 

• GEC collaborated with The Critical Mass LLC30 whose technology, Node XL, reaches both 

domestic and foreign speech, as shown by the company’s report on research conducted to 

assess whether China was spreading misinformation about biolabs and Ukraine. That report 

concluded posts of the “highest visibility & interest on Twitter originated” in China,31 but also 

identified “ggreenwald” as the individual with the third “highest visibility and interest.”32

Glenn Greenwald is an American journalist who, during the relevant time of the research, had 

posted a C-Span video of then-Undersecretary of State Victoria Nuland, testifying to Sen. 

Rubio that Ukraine has “biological research facilities.”33

• GEC funded the infrastructure of GDI.34 GDI’s “core output” is its “Dynamic Exclusion List 

(DEL) of global news publications rated high risk for disinformation.” ECF11-8 (GDI 

webpage detailing its “core output,” the “Dynamic Exclusion List”).

• GEC’s private-sector engagement was not limited to foreign disinformation but addressed 

domestic speech that “mirrored” foreign speech by “engag[ing] with partners in industry” and 

“regularly look[ing] to engage beyond the government to make sure that discussion is on a 

wider societal level.”35

• GEC collaborated with the Election Integrity Partnership (“EIP”) in 2020 to report supposed 

misinformation to EIP which in turn requested social media companies remove the posts. EIP 

provided GEC direct access to its database to create tickets to flag purported disinformation; 

GEC was the only federal agency with the ability to submit tickets directly to EIP.36 GEC 

flagged posts and narratives on social and digital media that it viewed as being “amplified by, 

or likely to be amplified by, foreign malign influence actors”—not merely foreign posts.37 In 

fact, EIP’s leader Alex Stamos admitted that the speech targeted “is all domestic .... The vast, 

vast majority ... is domestic.”38 GEC also flagged “a YouTube channel run by Americans 

falsely claiming” that a certain State Department special envoy was “Patient Zero” for Covid30 Exh. JJ, @TCM_LLC Tweet, June 9, 2022 (Tweet by The Critical Mass noting it had worked with GEC). 31 Exh. HH, @TCM_LLC Tweet, Mar. 23, 2022 (Tweet by The Critical Mass highlighting its research into origins of 

posts using the hashtags #biolabs and #Ukraine). 32 Exh. DD, #Biolabs #Ukraine: A Social Media Analysis, The Critical Mass at 1 (summary of research by The Critical 

Mass); Exh. II, ariellemattes (graphic from The Critical Mass identifying ggreenwald as having third highest visibility and 

interest on Twitter with hashtags #biolabs and #Ukraine).

33 Exh. KK, @ggreenwald Tweet, Aug. 15, 2023 (Tweet by American journalist Glenn Greenwald of video showing Sen. 

Marco Rubio questioning then-Undersecretary of State Victoria Nuland about Ukraine’s biological research facilities). 34 U.S.-Paris Tech Challenge 2021, supra at 12 n.11 at 1:25:50 (video of GDI’s CEO Clare Melford declared GEC grant 

would help support organization’s infrastructure) . 35 Mad Scientist: Weaponized Information Virtual Conference, July 21, 2020, at 33:58, 34:10, 2.09 MadSci Weaponized 

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

https://www.youtube.com/watch?v=YoeHq5gX0dA (video of GEC presentation in which GEC representatives explain 

how they use outreach to address domestic speech that “mirrors” foreign disinformation); Exh. W, @ArmyMadSci Tweets, 

July 21, 2020 (Tweets highlighting GEC presentation and noting GEC seeks to bridge gap between foreign misinformation 

and domestic mirroring that content with “wide variety of reps to engage with partners in industry). 36 Exh. ZZ, Transcript of Interview of Alexander Stamos Before the H. Comm. on the Judiciary, 118th Cong. at 98 (June 23, 2023)

(testifying only GEC had direct access to EIP platform to create tickets of supposed disinformation). 37 Exh. SS, Declaration of Leah Bray at 7, ¶18, Exhibit, Missouri v. Biden, 22-cv-01213, ECF 266-6, Apr. 27, 2023 (explaining 

categories of material GEC flagged for EIP). 38 CISA, Cyber Summit 2020: Day Four (Defending our Democracy), Combating Misinformation and Disinformation, YouTube,

at 3:24:17, available at https://www.youtube.com/watch?v=WDtstiYHRNc (interview of Stamos who summarized EIP’s 

then-ongoing work in 2020, stressing it is nearly all domestic information the group saw related to the election).

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19.39

• GEC sent Twitter a list of some 5,500 accounts for investigation, claiming they were 

“Chinese” accounts engaged in “state-backed coordinated manipulation.” That list included 

“multiple Western government accounts and at least three CNN employees based abroad,” as 

well as many ordinary Americans.40 

Defendants admit they continue to provide grants and run the testbed, tech challenges, and 

GEC’s “private sector engagement portfolio,”41 ECF32-1 at 11 ¶21, the latter of which “facilitate[s] 

collaboration between U.S. government and the tech sector, academia, and the research community.” 

ECF32 at 14-15. Those continuing initiatives, coupled with Defendants’ years-long and far-reaching 

scheme of illegally using those initiatives to target domestic speech and the domestic press, establish 

a real and substantial threat of future harm to Media Plaintiffs. 

Media Plaintiffs Established Traceability. 

Defendants next argue Media Plaintiffs cannot establish traceability, which requires “a causal 

connection between the injury and the conduct complained of.” Lujan v. Nat’l Wildlife Found., 504 U.S. 

555, 560 (1992). Defendants maintain Media Plaintiffs cannot establish causation because their alleged 

injuries are the result of the independent actions of third parties not before the Court. ECF33 at 25.

Contrary to Defendants’ portrayal of the traceability standard, however, “the causation element of 

standing does not require the challenged action to be the sole or even immediate cause of the injury.” 

Sierra Club v. U.S. Dep’t of the Interior, 899 F.3d 260, 284 (4th Cir. 2018). Further, that the causal 

relationship between the challenged action and injury depends on the conduct of a third party does 

not preclude a finding of traceability. California v. Texas, 141 S. Ct. 2104, 2117 (2021). Rather, a Plaintiff 

satisfies the traceability requirement by “showing that third parties will likely react in predictable ways 

39 Exh. TT at 2, Brian Scully Deposition Exhibit, Missouri v. Biden, No. 22-cv-01213, ECF No. 209-15, Mar. 4, 2023. 40 Exh. V at 7-8 (Matt Taibbi’s reporting based review of internal Twitter communications including spreadsheet GEC 

sent Twitter of names of thousands of users it claimed represented Chinese accounts—they were not). 41 That GEC’s current private-sector engagement liaison does not work from Silicon Valley changes nothing: Ultra vires

outreach from D.C. remains equally illegal.

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to the [defendant’s actions].” Dep’t of Com. v. New York, 139 S. Ct. 2551, 2566 (2019). And traceability 

is satisfied when “common sense” shows an “inference to be a reasonable prediction rather than ‘mere 

speculation.” Id.

In this case, Plaintiffs’ injuries are the predictable result of Defendants’ deliberate efforts to 

market and promote the CPD tools and technologies. Common sense tells us that promoting tools 

and technologies will result in third parties adopting those tools and technologies—precisely the 

reason Defendants promoted them. Contrary to Defendants’ spin, there is no “speculative chain of 

possibilities” necessary to injure Plaintiffs. Rather, as in Texas v. Biden, 20 F.4th 928, 974 (5th Cir. 

2021) rev’d on other grounds, 142 S. Ct. 2528 (2022), only one relevant third-party choice remains: an 

organization adopting the tool or technology promoted by Defendants to limit Media Plaintiffs’ 

circulation and revenue opportunities. Id. at 973 (holding plaintiff established traceability because “the 

only relevant third-party choice that remains, then, is the alien’s choice to apply for a license once in 

Texas”). Further, the causal chain in this case is even more straightforward than in Massachusetts v. 

EPA, 549 U.S. 497 (2007), wherein the Supreme Court found the Plaintiff had established traceability 

where the EPA’s challenged action may cause people to drive less fuel-efficient cars, that may 

contribute to a prospective rise in sea levels, and in turn may cause the erosion of Massachusetts’ 

shoreline. Id. at 523. In sum, Supreme Court and Fifth Circuit precedent confirm Plaintiffs have 

satisfied traceability.42

Media Plaintiffs Established Redressability. 

Defendants submit that Media Plaintiffs’ injuries are not redressable because granting the relief 

sought, namely prohibiting Defendants from funding the censorship scheme, “would not redress the 

42 Defendants’ reliance on Clapper is misplaced. In that case, respondents’ argument rested on their highly speculative fear 

that required five independent steps and a “highly attenuated chain of possibilities.” Clapper v. Amnesty Int’l USA, 568 U.S. 

398, 410 (2013). In contrast, like Texas v. Biden, wherein the Fifth Circuit found traceability, only one step remains, making 

“the causal chain” in this case “easy to see.” Texas v. Biden, 20 F.4th at 972. 

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supposed source of Plaintiffs’ injuries,” which Defendants frame as GDI and NewsGuard’s negative 

ratings of the Media Plaintiffs, which in turn reduces Media Plaintiffs’ circulation and revenue 

opportunities. ECF33 at 25-30. 

This argument misses the point: The injunctive relief sought does not seek to control the 

behavior of third parties, but rather to enjoin Defendants from engaging in ultra vires testing, funding, 

developing, and promotion of CPD tools and technologies that target the domestic press and speech. 

There is nothing “attenuated, vague, and speculative,” ECF32 at 34, about the harm Plaintiffs seek to 

halt: The injury to Media Plaintiffs is the logical, foreseeable, and intended consequence of 

Defendants’ ultra vires actions, namely inducing third parties to adopt the tools and technologies GEC 

promotes, such as NewsGuard, GDI, Ad Fontes, and Logically to negatively impact Media Plaintiffs’ 

reach and revenue. An injunction prohibiting Defendants’ conduct will redress the harm caused by 

Defendants; that other third parties may independently discover, research, evaluate, and adopt the 

tools and technologies does not alter that conclusion. See Larson v. Valente, 456 U.S. 228, 244 n.15

(1982) (“[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision 

will relieve a discrete injury to himself.”). 

Defendants’ Declarations Do Not Negate Media Plaintiffs’ Standing. 

In attempting to challenge Media Plaintiffs’ standing, Defendants present three declarations, 

but none of those declarations alters the above analysis. For instance, while in his declaration Daniel 

Kimmage, the Principal Deputy Coordinator of GEC, frames all of GEC’s activities as related to 

countering foreign propaganda and disinformation,

43 not once does he deny that GEC’s various 

43 See, e.g., Kimmage Declaration at 2, ¶4 (stating GEC “identifies innovative solutions to foreign disinformation and 

propaganda”); id. at 4, ¶10 (noting “through its Technology Engagement Team (TET), has worked to identify, assess, test, 

and implement technologies to address the problems of foreign propaganda and disinformation in cooperation with 

foreign partners, private industry, and academia”); id. at 4, 7-8 ¶¶10, 14 (GEC uses its testbed “to identify a technological 

gap that exists for the U.S. government entity in countering foreign information manipulation” and to “test[] how existing 

technologies can be used to provide solutions to foreign information manipulation challenges); id. at 6, ¶11 (GEC invites 

companies in tech challenges “to submit applications to present innovative solutions to counter foreign information 

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initiatives likewise reached domestic press and speech. Nor does Kimmage’s declaration dispute that 

the tools and technologies GEC identifies, funds, develops, and promotes also counter domestic press 

and speech. His declaration also does not contradict any of Plaintiffs’ evidence detailed above.

NewsGuard’s declaration is likewise unhelpful to Defendants. While NewsGuard stresses that 

none of the money it received from the State Department funded its “Nutrition Ratings” of The 

Federalist and The Daily Wire, ECF32-2 at 14, ¶37, that does not change the fact that GEC financed 

the promotion of NewsGuard on the Disinfo Cloud platform and that GEC-funded and still-available 

videos and posts promote not just NewsGuard but specifically NewsGuard’s “Nutrition Ratings.”44

Further, NewsGuard carefully crafted its declaration concerning the $25,000 grant it received 

from Disinfo Cloud to create the inaccurate impression that its testbed work with GEC did not reach 

the domestic press or domestic speech. However, Defendants acknowledge NewsGuard was told to 

“minimize” the collection of U.S. data, which confirms the test gathered at least some domestic 

information. When not drafting a statement for litigation, NewsGuard was also much more 

forthcoming, stating in its press release that to “help the State Department and DoD ‘evaluate 

disinformation narrative themes in near real time’ by identifying online sources spreading COVID-19 

disinformation or misinformation narratives,” “NewsGuard offered a ‘human intelligence’ solution 

with two key components.” ECF11-24. What were those two key components? NewsGuard’s press 

release identified them as: “Access to NewsGuard’s constantly updated database of journalistproduced ratings and ‘Nutrition Labels’ for thousands of news and information websites in the U.S. 

manipulation overseas” and uses private-sector engagement “to facilitate knowledge-sharing between the U.S. government 

and the tech sector, academia, and the research community on the topic of foreign information manipulation overseas”); 

id. at 9, ¶20 (“[b]y the end of 2021, Disinfo Cloud listed 366 tools and technologies relevant to countering foreign 

information manipulation”); id. at 7, ¶13 (GEC granted Park Advisors approximately $3 million “to test and engineer novel 

technological solutions. . . to the problems of foreign propaganda and disinformation, . . .”). 44 Defendants also suggest that The Daily Wire was not injured by NewsGuard’s rating because advertisers typically use a 

60-point cut-off before pulling ads from companies and during the “relevant” time period The Daily Wire’s rating was 

69.5. NewsGuard currently rates The Daily Wire at only 49.5, however, see ECF11-41, establishing Defendants’ ongoing 

promotion of NewsGuard currently harms The Daily Wire.

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and Europe,” and “NewsGuard’s growing database of Misinformation FingerprintsTM, a catalogue of 

known hoaxes, falsehoods and misinformation narratives that are spreading online.”45 Id.

While NewsGuard’s General Manager Matthew Skibinski further attests that “Misinformation 

Fingerprints is a human- and machine-readable catalog of the significant false claims circulating online, 

with a focus on state-sponsored false narratives from Russia, China, and Iran,” ECF32-2 at 7, ¶16, the 

sample “Misinformation Fingerprint” NewsGuard highlights on its webpage in promoting that 

product highlights a story by American reporter Jim Hoft at Gateway Pundit about election fraud in 

2020 in Michigan.46 

NewsGuard’s excerpt from its Statement of Work and “Deliverables” also does not establish 

that its testbed project targeted only foreign propaganda and disinformation. First, NewsGuard only 

excerpted portions of the Statement of Work and in doing so, used ellipses, leaving unknown the full 

breadth of the project. ECF32-2 at 10, ¶27. Further, when NewsGuard collaborated with the Air Force 

for a different test, it gave the government a license to both its credibility ratings and Misinformation 

Fingerprints, making it reasonable to infer NewsGuard’s testbed trial followed a similar approach.47 

The final declaration from GDI’s American founder, Danny Rogers, also does not alter the 

reality that GEC funds were used to promote GDI and its technology, which demonetizes domestic 

speech, including of Media Plaintiffs. Rogers’s denial that GEC funds supported GDI’s infrastructure, 

ECF32-3 at 4, ¶7, should be given little weight because contemporaneous to learning GDI had “won” 

the U.S.-Paris tech challenge, GDI’s CEO Clare Melford declared the funds would help fund the 

45 In contrast, NewsGuard’s Declaration claims the technology it provided for the GEC-funded project did not rely on its 

“ratings of news websites, including of American media outlets, . . .” ECF32-2, Declaration of Skibinski at 10, ¶25. 46 Exh. LL, Misinformation Fingerprints, NewsGuard at 2 (NewsGuard’s webpage summary of its Misinformation 

Fingerprints product with a sample highlighting Gateway Pundit’s reporting).

47 Exh. MM, NewsGuard’s Work Plan for Air Force Contract (showing NewsGuard provided Air Force full access to 

Misinformation Fingerprints); Exh. NN, NewsGuard and Air Force’s Licensing Agreement at 1 (NewsGuard licenses to 

the Air Force its “website credibility ratings” and data related to specific misinformation narratives).

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organization’s infrastructure.48 Melford’s contemporaneous statement holds more force than Rogers’s 

litigation-supplied declaration. By funding GDI’s infrastructure, GEC funds made GDI’s operations 

possible, including what it describes as its “core output”: the “Dynamic Exclusion List (DEL) of global 

news publications rated high risk for disinformation.” 

Rogers’s declaration does not deny GDI also targets Americans’ speech. Further Rogers’s

efforts to decouple the funding of the British corporate entity, Disinformation Index, Ltd., which 

received the grant, and the American corporate entity, Disinformation Index, Inc., which he claims 

produces the Dynamic Exclusion List, are likewise unconvincing. The webpage GDI linked in the 

U.S.-Paris Challenge presentation directs users to the exact same webpage as identified in the 

American entity’s IRS filings.49 And that webpage highlights the Dynamic Exclusion List—the source 

of Media Plaintiffs’ injuries—as GDI’s core output. 

Finally, Rogers’s claim that “there is no correlation between risk as identified in the [2022 

Disinformation Risk Assessment] report and any site’s inclusion in or exclusion from the Dynamic 

Exclusion List,” ECF32-3 at 5, ¶8, is implausible, as GDI’s contract with the University of Texas, 

signed by CEO Melford on behalf of the American entity, Disinformation Index, Inc., shows students 

used GDI’s methodology to compile the report that ranked The Federalist and The Daily Wire as 

among the top-ten riskiest American online outlets.50

In sum, then, Defendants’ Declarations fail to overcome the evidence presented by Plaintiffs

which establishes Defendants’ censorship scheme continues, including its ongoing promotion of

48 U.S.-Paris Tech Challenge 2021, supra at 12 n.11 at 1:25:50 (video of GDI’s CEO Clare Melford declared GEC grant 

would help support organization’s infrastructure) . 49 See Exh. L, U.S.-Paris Tech Challenge 2021, Sept. 30, 2021 (screengrab of slide used by GDI during its presentation to 

GEC showing webpage); Exh. VV, Form 990: Return of Organization Exempt from Income Tax, Disinformation Index 

Inc. at 1 (IRS filing for Disinformation Index Inc. showing webpage directing to same GDI webpage as British entity). 50 Exh. OO, GDI Letter of Agreement with University of Texas at Austin at 4 (contract between GDI and Texas describing 

GDI’s methodology for assessing the disinformation risk of news domains and GDI’s “mission to catalyze industry and 

government to defund disinformation”).

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NewsGuard, Ad Fontes, and GDI. All three entities rate the Media Plaintiffs as unreliable. As 

NewsGuard brags, negative ratings reduce web traffic to outlets ranked unreliable, and a majority of 

users surveyed report they would be less likely to share articles NewsGuard rates unreliable.51

NewsGuard and GDI also steer advertising dollars away from publications rated unreliable. See U.S.-

Paris Tech Challenge (capturing GDI boasting “over a dozen ad-tech companies” used GDI’s

technology, “redirecting millions of dollars away from disinformation peddlers toward quality 

journalism”);52 NewsGuard, Library Partnership Initiative (stating NewsGuard licenses a “White List

of legitimate news sites to advertisers, which will cut off revenues to fake news sites”).53 This evidence 

satisfies Media Plaintiffs’ burden to establish standing. 

D. Texas Has Standing. 

Defendants also challenge Texas’s standing to sue. Because “the presence of one party with 

standing is sufficient to satisfy Article III’s case-or-controversy requirement,” Texas v. Nuclear Regul. 

Comm’n, 78 F.4th 827, 835 (5th Cir. 2023) (quoting Rumsfeld v. FAIR, 547 U.S. 47, 52, n.2 (2006)), 

Media Plaintiffs’ standing is sufficient to avoid a Rule 12(b)(1) dismissal, and this Court need not 

consider whether Texas has an independent basis for standing. In any event, and as Texas further 

demonstrated in its Response in Opposition to Motion to Transfer Venue, Texas has standing to bring 

its APA and common law ultra vires claims.54

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

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

51 See Exh. RR, New Research from NYU Shows NewsGuard Helps Those Most Exposed to Misinformation, NewsGuard, May 6, 

2022, at 4-5 (NewsGuard press release summarizing studies showing NewsGuard’s “unreliable” rating decreases readership 

of outlets and reduces circulation by causing individuals not to share articles). 52 U.S.-Paris Tech Challenge 2021, supra at 12 n.11 at 1:10:25 (GDI’s presentation to GEC). 53 Exh. WW, NewsGuard Library Partnership Initiative at 12 (summary of NewsGuard and explaining its reliability ratings 

serve to “cut off revenues to fake news sites”). 54 Texas also has standing to assert a procedural injury because it has been deprived of the APA’s notice-and-comment 

requirement, to protect its concrete interests. Texas v. EEOC, 933 F.3d at 447.

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

to regulate matters they believe they control; (2) federal preemption of state law; and (3) federal 

interference with the enforcement of state law, at least where the state statute at issue regulates 

behavior or provides for the administration of a state program . . . .” Texas v. United States, 809 F.3d 

134, 153 (5th Cir. 2015) (cleaned up); cf. Planned Parenthood v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013)

(citation omitted) (“When a statute is enjoined, the State necessarily suffers the irreparable harm of 

denying the interest in the enforcement of its laws.”). 

In this case, Defendants’ censorship scheme interferes with Texas’s enforcement of H.B.20, a 

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

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

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

power to act as common carriers. See Tex. Bus. & Com. Code Ann. §§ 120.001 et seq.; ECF1 at ¶ 6. 

Texas has standing where the State Department’s actions have both regulated (at least implicitly) 

matters Texas believes it controls and, in the process, federally preempted the state law codified at 

H.B.20. See ECF1 at ¶ 237.

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

challenge pending before the United States Supreme Court in NetChoice, LLC v. Paxton. 144 S. Ct. 477 

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

“strong presumption of validity.” See, e.g., Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 301 (2022). 

Thus, Defendants are incorrect to suggest that Texas’s standing “rest[s] on pure speculation 

concerning the Supreme Court’s forthcoming ruling.” ECF14 at 12. Rather, this Court must presume 

the validity of H.B.20 until proven otherwise. 

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

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Defendants claim H.B.20 is currently enjoined, ECF14 at 8, the story is more complicated. After the 

Fifth Circuit overturned the district court’s ruling enjoining H.B.20, see NetChoice, L.L.C. v. Paxton, 49 

F.4th 439 (5th Cir. 2022) (vacating and remanding 573 F. Supp. 3d 1092 (W.D. Tex. 2021)), the parties 

agreed to a stay of the Fifth Circuit’s mandate pending review by the Supreme Court.55 The grant of 

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

questions raised in the Solicitor General’s amicus brief. See NetChoice, L.L.C. v. Paxton, 144 S. Ct. 477 

(Mem) (Sept. 29, 2023).

56 Therefore, any part of H.B.20 upheld by the Fifth Circuit but not part of 

the grant of certiorari stands, regardless of the Supreme Court’s decision. Texas thus maintains, at a 

minimum, an interest in enforcing the sections of H.B.20 the Fifth Circuit upheld that are not 

implicated in the Supreme Court’s appellate review.

Although Defendants argue that Texas’s injuries are merely speculative, the relevant inquiry 

remains “whether the party invoking jurisdiction had the requisite stake in the outcome when the suit 

was filed.” Texas v. Mayorkas, No. 22-CV-094-Z, 2024 WL 455337, at *2 (N.D. Tex. Feb. 6, 2024)

(quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008)); Jackson v. Biden, No. 2:22-CV-241-Z, 

2024 WL 406645, at *4 (N.D. Tex. Feb. 2, 2024) (citing Pluet v. Frasier, 355 F.3d 381, 386 (5th Cir. 

2004) (“A party must have standing at the time the complaint is filed.”). “What is relevant to the 

standing inquiry is whether Plaintiff pled a sufficient prospective injury.” Mayorkas, No. 22-CV-094-

Z, 2024 WL 455337, at *2 (citing Davis, 554 U.S. at 734 n.5). And “[t]he Supreme Court has noted 

that a plaintiff need not ‘demonstrate that it is literally certain that the harms they identify will come 

55 See, Appellees’ Unopposed Motion to Stay the Mandate Pending Petition for Writ of Certiorari, Doc. No. 00516489553, 

NetChoice, L.L.C. v. Paxton, No. 21-51178 (5th Cir. Sept. 29, 2022). 56 The Solicitor General’s brief presented two questions: “1. Whether the laws’ content-moderation restrictions comply 

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

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

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

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about.’” Texas Voters All. v. Dallas Cnty., 495 F. Supp. 3d 441, 454 (E.D. Tex. 2020) (citing Clapper v. 

Amnesty Int’l USA, 568 U.S. 398, 414 n.5 (2013)).

The fact that there has been an appeal to the U.S. Supreme Court in a separate action does 

not affect the standing inquiry, particularly because portions of H.B. 20 remain in force. Texas had 

standing at filing (and still does). H.B.20’s transparency requirements, for example, remain in force 

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

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

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

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

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

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

detection tool.” Id. at (b)(2)(A), (C). The State Department’s illegal and ultra vires censorship scheme 

interferes with Texas’s consumer protection statute and, thus, Texas’s sovereign interest in enforcing 

its laws. Texas has standing.

Texas can also show traceability. Defendants assert Texas has not shown that media 

companies were induced to violate H.B. 20 by the challenged agency action. ECF33 at 16. But this 

is not the standard. While there must be “a causal connection between the plaintiff’s injury and the 

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

‘the defendant’s actions are the very last step in the chain of causation.’” Inclusive Cmtys. Proj. v. Dep’t of 

Treasury, 946 F.3d 649, 655 (5th Cir. 2019) (quoting Bennett v. Spear, 520 U.S. 154, 169 (1997)). Rather, 

a plaintiff can satisfy traceability when the challenged act “does not rest on mere speculation about 

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

decisions of third parties.” Dep’t of Com. v. New York, 139 S. Ct. 2551, 2566 (2019). Moreover “[i]t bears 

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repeating: Plaintiff, at this stage, is under no obligation to prove its injury actualized or to define and 

eliminate all possible factors contributing to it.” Mayorkas, No. 22-CV-094-Z, 2024 WL 455337, 

at *3 (emphasis added). That is because, “the injury required for standing need not be actualized.” 

Davis, 554 U.S. at 734. At this stage, since the allegations are taken as true because the alleged factual 

attack is intertwined with the merits, Texas is not required “to produce specific evidence to counter” 

the argument raised by Defendants on the merits. Gen. Land Off. v. Biden, 71 F.4th 264, 273 (5th Cir. 

2023). And even if the factual attack were not intertwined with the merits, Plaintiffs have rebutted 

the factual attack by a preponderance of evidence. See supra Part II.A and II.B.

Ultimately, Texas challenges the State Department’s actions in funding a domestic censorship 

scheme—the known and unlawful breadth and scope of which is detailed in the 69-page Complaint. 

Specifically, the State Department’s censorship scheme interferes with the functioning of H.B.20 “by 

funding the infrastructure, development, and marketing and promotion of censorship technology and 

private censorship enterprises,” at a minimum, by violating H.B.20’s transparency requirements that 

remain good law. ECF1 at ¶1; see also, id. at ¶234. At a maximum, the over 360 domestic blacklisting 

and other censorship technologies funded, developed, and still promoted by the GEC with State 

Department funds and State Department-funded resources limit the reach of media outlets on various 

platforms, in direct violation of H.B.20. See id. at ¶235. At this stage of the litigation, which tools and 

technologies discriminate against Texans’ speech on technology platforms deemed common carriers 

under H.B.20 is not fully known, but the evidence summarized establishes some of the tools and 

technologies promoted by Defendants impact Texans’ speech and thus Texas’s sovereign interest. 

Discovery will likely reveal additional injuries to Texas’s sovereign interests. But at this point, the 

evidence is sufficient to show that the State Department’s activities interfere in Texas’s enforcement 

of H.B.20’s transparency provisions, and more broadly H.B.20’s mandates against discrimination by 

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common carriers. The harm caused here by the actions of social media companies is a “predictable 

effect of [g]overnment action on the decisions of third parties.” Dep’t of Com., 139 S. Ct. at 2566. Thus, 

Defendants’ actions harm Texas’s sovereign interest, and Texas has established traceability.

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

decision “is likely, as opposed to merely speculative,” to redress its injury. Inclusive Cmtys. Proj., 946 F.3d 

at 655 (emphasis in original) (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 

167, 181 (2000)). A plaintiff demonstrates redressability if “the desired relief would lessen” the 

injury—a “complete[] cure” is unnecessary. Id. 

That is, the injunction need not alleviate all harms. See, Texas v. United States, 40 F.4th 205, 219 

(5th Cir. 2022). It must only “potentially lessen its injury.” Consumer Data Indus. Ass’n v. Texas through 

Paxton, No. 21-51038, 2023 WL 4744918, at *6 (5th Cir. July 25, 2023) (citing Sanchez v. R.G.L., 761 

F.3d 495, 506 (5th Cir. 2014)). Here, Plaintiffs have indicated that the injuries to Texas would be 

“eased” and thus demonstrates that the relief requested in this suit “would naturally redress Texas’s 

harm to a meaningful degree.” Texas, 40 F.4th at 219. An injunction would put an end to Defendants’ 

actions and therefore redress the harm to Texas’s sovereign interests in enforcing H.B.20’s 

transparency mandate.

In sum, then, because Texas has established (1) Defendants’ actions interfere with Texas’s 

sovereign interest in enforcing H.B.20; (2) that sovereign interest encompasses preventing Defendants 

from aiding common carriers in violating H.B.20 and the interests it intends to protect; and (3) an 

injunction against Defendants’ actions would redress that injury, Texas has standing to sue. 

III. ALTERNATIVELY, THIS COURT SHOULD ORDER DISCOVERY PRIOR TO RULING ON 

DEFENDANTS’ MOTION TO DISMISS FOR LACK OF JURISDICTION. 

Should this Court conclude that Defendants have properly raised a factual attack on 

jurisdiction and that Plaintiffs have not rebutted that attack with the proffered evidence, the proper 

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course of action is to “give the plaintiff an opportunity for discovery and for a hearing.” Williamson, 

645 F.2d at. 414. Accordingly, Plaintiffs seek, in the alternative, an opportunity for jurisdictional 

discovery before this Court consider Defendants’ Motion to Dismiss.

IV. THERE IS NO BASIS UNDER RULE 12(b)(1) TO DISMISS PLAINTIFFS’ OFFICIAL 

CAPACITY CLAIMS AGAINST DEFENDANTS. 

Defendants maintain this Court should dismiss the official capacity claims against the 

individual Defendants, but they present no basis for arguing this Court lacks jurisdiction over those 

claims. Accordingly, dismissal under 12(b)(1) is inappropriate. Dismissal of the official capacity claims 

against the individual leaders of the Global Engagement Center and the Technology Engagement 

Team would also be inappropriate because those organizations are interagency and thus act on behalf 

of other agencies.57 Further, while the GEC and the TET are currently housed in the State 

Department, they could be shifted to another federal agency. Accordingly, to ensure the injunctive 

relief sought binds both the GEC and the TET, this Court should deny Defendants’ Motion to 

Dismiss the official capacity claims against the leaders of those groups.

CONCLUSION

Defendants’ Motion to Dismiss for lack of jurisdiction is a challenge to the merits of Plaintiffs’

claims, and as such should be denied. Alternatively, should this Court consider Defendants’ motion 

under Fed. R. Civ. P. 12(b)(1), the Court should DENY the Motion because both Media Plaintiffs

and Texas have standing to sue. The Court should further reject Defendants’ request to dismiss the 

official capacity suits against the individual defendants to ensure the injunctive relief is effective to halt 

the ultra vires and unconstitutional conduct by the GEC and TET, in addition to the State Department.

Accordingly, for these and the foregoing reasons, this Court should DENY Plaintiffs’ Motion. 

57 Exh. YY, U.S. Mission Geneva, Fact Sheet: The Global Engagement Center, U.S. Mission to International Organizations in Geneva, 

July 7, 2016 at 1 (official government webpage noting GEC is an “interagency entity”).

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DATED: April 10, 2024

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. 24032801 

AMY S. HILTON 

Special Counsel 

Texas State Bar No. 24097834 

JOHNATHAN STONE 

Special Counsel 

Texas State Bar No. 24071779

JACOB E. PRZADA 

Special Counsel 

Texas State Bar No. 24125371

Office of the Attorney General of Texas

P.O. Box 12548 (MC 009) 

Austin, TX 78711-2548 

Phone: (512) 936-3754 

FAX: (512) 457-4410 

Susanna.Dokupil@oag.texas.gov

Amy.Hilton@oag.texas.gov

Johnathon.Stone@oag.texas.gov 

Attorneys for Plaintiff the State of Texas

Respectfully submitted,

/s/ Margaret A. Little 

Margaret A. Little

Lead Attorney 

Senior Litigation Counsel 

Connecticut Bar No. 303494 

NEW CIVIL LIBERTIES ALLIANCE 

1225 19th Street NW, Suite 450 

Washington, DC 20036 

Telephone: (202) 869-5210

Facsimile: (202) 869-5238

Peggy.Little@ncla.legal

/s/ Margot J. Cleveland 

Margot J. Cleveland,

Of Counsel 

Michigan Bar No. 83564

NEW CIVIL LIBERTIES ALLIANCE

Margot.Cleveland@ncla.legal

/s/ Casey Norman 

Casey Norman

Litigation Counsel 

New York Bar No. 5772199

NEW CIVIL LIBERTIES ALLIANCE

Casey.Norman@ncla.legal

Counsel for Plaintiffs The Daily Wire 

Entertainment LLC and FDRLST Media LLC

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CERTIFICATE OF SERVICE

I hereby certify that, on April 10, 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

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